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EXHIBIT 10.29
NET LEASE AGREEMENT
OPUS NORTH CORPORATION - LANDLORD
ERO INDUSTRIES, INC. - TENANT
DATED: MAY 26, 1992
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TABLE OF CONTENTS
Page
ARTICLE I
TERM OF LEASE
Section 1.1 Term of Lease . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS
Section 2.1 Landlord's Improvements . . . . . . . . . . . . . . . . . . 1
Section 2.2 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.3 Possession of Demised Premises. . . . . . . . . . . . . . . 4
Section 2.4 Construction Guaranty . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Tenant's Acceptance of Demised Premises . . . . . . . . . . 6
Section 2.6 Repair and Maintenance. . . . . . . . . . . . . . . . . . . 6
ARTICLE III
BASIC RENT
Section 3.1 Basic Rent . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.2 Basic Rent Adjustment. . . . . . . . . . . . . . . . . . . . 7
Section 3.3 Additional Rent. . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.4 Delinquent Payments. . . . . . . . . . . . . . . . . . . . . 7
Section 3.5 Independent Obligations. . . . . . . . . . . . . . . . . . . 8
ARTICLE IV
USE OF DEMISED PREMISES
Section 4.1 Permitted Use. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.2 Preservation of Demised Premises . . . . . . . . . . . . . . 8
Section 4.3 Acceptance of Demised Premises . . . . . . . . . . . . . . . 8
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 5.1 Payment of Impositions . . . . . . . . . . . . . . . . . . . 8
Section 5.2 Tenant's Right to Contest Impositions. . . . . . . . . . . . 9
Section 5.3 Levies and Other Taxes . . . . . . . . . . . . . . . . . . . 10
Section 5.4 Evidence of Payment. . . . . . . . . . . . . . . . . . . . . 10
Section 5.5 Escrow for Taxes and Assessments . . . . . . . . . . . . . . 11
Section 5.6 Landlord's Right to Contest Impositions. . . . . . . . . . . 11
Section 5.7 Real Estate Tax Limitation . . . . . . . . . . . . . . . . . 12
ARTICLE VI
INSURANCE
Section 6.1 Tenant's Insurance Obligations . . . . . . . . . . . . . . . 12
Section 6.2 Insurance Coverage . . . . . . . . . . . . . . . . . . . . . 13
Section 6.3 Insurance Provisions . . . . . . . . . . . . . . . . . . . . 13
Section 6.4 Waiver of Subrogation. . . . . . . . . . . . . . . . . . . . 14
Section 6.5 Tenant's Indemnification of Landlord . . . . . . . . . . . . 14
Section 6.6 Unearned Premiums. . . . . . . . . . . . . . . . . . . . . . 14
Section 6.7 Blanket Insurance Coverage . . . . . . . . . . . . . . . . . 14
ARTICLE VII
UTILITIES
Section 7.1 Payment of Utilities . . . . . . . . . . . . . . . . . . . . 15
Section 7.2 Additional Charges . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VIII
REPAIRS
Section 8.1 Tenant's Repairs . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.2 Maintenance. . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.3 Tenant's Waiver of Claims Against Landlord . . . . . . . . . 16
Section 8.4 Prohibition Against Waste. . . . . . . . . . . . . . . . . . 16
Section 8.5 Landlord's Right to Effect Repairs . . . . . . . . . . . . . 16
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Section 8.6 Misuse or Neglect . . . . . . . . . . . . . . . . . . . . . 16
Section 8.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE IX
COMPLIANCE WITH LAWS AND ORDINANCES
Section 9.1 Compliance with Laws and Ordinances . . . . . . . . . . . . . 18
Section 9.2 Compliance with Permitted Encumbrances. . . . . . . . . . . . 19
Section 9.3 Tenant's Obligations . . . . . . . . . . . . . . . . . . . . 19
Section 9.4 Tenant's Right to Contest Laws and Ordinances . . . . . . . . 19
Section 9.5 Compliance with Hazardous Materials Laws. . . . . . . . . . . 19
Section 9.6 Hazardous Materials Representation by Landlord. . . . . . . . 21
Section 9.7 Cost of Compliance with Hazardous Materials Laws. . . . . . . 21
Section 9.8 Discovery of Hazardous Materials. . . . . . . . . . . . . . . 21
Section 9.9 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 21
Section 9.10 Environmental Audits. . . . . . . . . . . . . . . . . . . . . 22
Section 9.11 Acts or Omissions Regarding Hazardous Materials . . . . . . . 22
Section 9.12 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE X
MECHANIC'S LIENS AND OTHER LIENS
Section 10.1 Freedom from Liens. . . . . . . . . . . . . . . . . . . . . . 22
Section 10.2 Landlord's Indemnification. . . . . . . . . . . . . . . . . . 23
Section 10.3 Removal of Liens. . . . . . . . . . . . . . . . . . . . . . . 23
Section 10.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE XI
INTENT OF PARTIES
Section 11.1 Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.2 Entry by Landlord . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.3 Interest on Unpaid Amounts. . . . . . . . . . . . . . . . . . 25
ARTICLE XII
DEFAULTS OF TENANT
Section 12.1 Event of Default. . . . . . . . . . . . . . . . . . . . . . . 25
Section 12.2 Surrender of Demised Premises . . . . . . . . . . . . . . . . 26
Section 12.3 Reletting by Landlord . . . . . . . . . . . . . . . . . . . . 26
Section 12.4 Survival of Tenant's Obligations. . . . . . . . . . . . . . . 26
Section 12.5 Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.6 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 12.7 Landlord's Remedies . . . . . . . . . . . . . . . . . . . . . 28
Section 12.8 Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 12.9 Waiver by Tenant. . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XIII
DESTRUCTION AND RESTORATION
Section 13.1 Destruction and Restoration . . . . . . . . . . . . . . . . . 29
Section 13.2 Application of Insurance Proceeds . . . . . . . . . . . . . . 29
Section 13.3 Continuance of Tenant's Obligations . . . . . . . . . . . . . 30
Section 13.4 Availability of Insurance Proceeds. . . . . . . . . . . . . . 30
Section 13.5 Completion of Restoration . . . . . . . . . . . . . . . . . . 31
Section 13.6 Termination of Lease. . . . . . . . . . . . . . . . . . . . . 31
ARTICLE XIV
CONDEMNATION
Section 14.1 Condemnation of Entire Demised Premises . . . . . . . . . . . 31
Section 14.2 Partial Condemnation/Termination of Lease . . . . . . . . . . 32
Section 14.3 Partial Condemnation/Continuation of Lease. . . . . . . . . . 32
Section 14.4 Continuance of Obligations. . . . . . . . . . . . . . . . . . 34
Section 14.5 Adjustment of Rent. . . . . . . . . . . . . . . . . . . . . . 34
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Section 14.6 Tenant's Interest in Alterations . . . . . . . . . . . . . . 34
ARTICLE XV
ASSIGNMENT, SUBLETTING, ETC.
Section 15.1 Restriction on Transfer. . . . . . . . . . . . . . . . . . . 35
Section 15.2 Restriction From Further Termination . . . . . . . . . . . . 36
Section 15.3 Landlord's Termination Right . . . . . . . . . . . . . . . . 36
Section 15.4 Tenant's Failure to Comply . . . . . . . . . . . . . . . . . 37
Section 15.5 Sharing of Excess Rent . . . . . . . . . . . . . . . . . . . 38
ARTICLE XVI
SUBORDINATION, NONDISTURBANCE
NOTICE TO MORTGAGEE AND ATTORNMENT
Section 16.1 Subordination by Tenant. . . . . . . . . . . . . . . . . . . 37
Section 16.2 Landlord's Default . . . . . . . . . . . . . . . . . . . . . 38
Section 163. Attornment . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE XVII
SIGNS
Section 17.1 Tenant's Signs . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XVIII
REPORTS BY TENANT
Section 18.1 Annual Statements. . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE XIX
CHANGES AND ALTERATIONS
Section 19.1 Tenant's Changes and Alterations . . . . . . . . . . . . . . 39
ARTICLE XX
MISCELLANEOUS PROVISIONS
Section 20.1 Entry by Landlord. . . . . . . . . . . . . . . . . . . . . . 41
Section 20.2 Exhibition of Demised Premises . . . . . . . . . . . . . . . 42
Section 20.3 Indemnification by Tenant. . . . . . . . . . . . . . . . . . 42
Section 20.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 20.5 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . 43
Section 20.6 Landlord's Continuing Obligations. . . . . . . . . . . . . . 43
Section 20.7 Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 20.8 Delivery of Corporate Documents. . . . . . . . . . . . . . . 44
Section 20.9 Memorandum of Lease. . . . . . . . . . . . . . . . . . . . . 45
Section 20.10 Severability . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 20.11 Successors and Assigns . . . . . . . . . . . . . . . . . . . 45
Section 20.12 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 20.13 Relationship of Parties. . . . . . . . . . . . . . . . . . . 45
Section 20.14 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 46
Section 20.15 No Merger. . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 20.16 Possession and Use . . . . . . . . . . . . . . . . . . . . . 46
Section 20.17 No Surrender During Lease Term . . . . . . . . . . . . . . . 46
Section 20.18 Surrender of Demised Premises. . . . . . . . . . . . . . . . 46
Section 20.19 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 20.20 Landlord Approval. . . . . . . . . . . . . . . . . . . . . . 47
Section 20.21 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 20.22 Attorney's Fees. . . . . . . . . . . . . . . . . . . . . . . 47
Section 20.23 Landlord's Limited Liability . . . . . . . . . . . . . . . . 47
Section 20.24 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 20.25 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 48
Section 20.26 Joint and Several Liability. . . . . . . . . . . . . . . . . 48
Section 20.27 Time is of the Essence . . . . . . . . . . . . . . . . . . . 48
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ARTICLE XXI
MOVING EXPENSES ALLOWANCE
ARTICLE XXII
REIMBURSEMENT OF COST OF
PREPARING THE WORKING DRAWINGS
ARTICLE XXIII
OPPORTUNITY TO NEGOTIATE EXTENSION TERM
ARTICLE XXIV
ASSIGNMENT AND SUBLETTING TO WHOLLY OWNED SUBSIDIARY
ARTICLE XXV
FAILURE TO DELIVER POSSESSION
EXHIBITS
Exhibit "A" Legal Description and Permitted Encumbrances
Exhibit "B" Preliminary Contract Documents
Exhibit "C" Working Drawings
Exhibit "D" Allowance Items
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NET LEASE AGREEMENT
THIS NET LEASE AGREEMENT ("Lease"), made this 26th day of May, 1992, by
and between OPUS NORTH CORPORATION, an Illinois corporation ("Landlord") and
ERO INDUSTRIES, INC., a Delaware corporation ("Tenant").
WITNESSETH:
Landlord, for and in consideration of the rents, covenants and
agreements hereinafter reserved, mentioned and contained on the part of Tenant,
its successors and assigns, to be paid, kept, observed and performed, has
leased, rented, let and demised, and by these presents does lease, rent, let
and demise unto Tenant, and Tenant does hereby take and hire, upon and subject
to the conditions and limitations hereinafter expressed, all that parcel of
land situated in the Village of Mount Prospect, County of Cook and State of
Illinois, described in Exhibit "A" attached hereto and made a part hereof,
together with any appurtenant easements described in said Exhibit "A" (the
"Land"), together with all improvements located on and to be constructed
thereon. Landlord's Improvements (as defined in Article II) and all other
improvements, machinery, equipment, fixtures and other property, real, personal
or mixed (except Tenant's trade fixtures and equipment) installed or located
thereon, together with all additions, alterations and replacements thereof are
hereinafter referred to as the "Improvements." The Land and the Improvements
are hereinafter referred to as the "Demised Premises." The Demised Premises are
subject to the easements, restrictions, reservations and other "permitted
encumbrances" set forth in said Exhibit "A". The structures located upon and
being a part of the Demised Premises which are constructed for human occupancy
or for storage of goods, merchandise, equipment, or other personal property are
collectively called the "Building."
ARTICLE I
TERM OF LEASE
Section 1.1 Term of Lease. The initial term of this Lease shall
commence on the fifteenth day of July, 1992, and shall end seven (7) years, two
(2) weeks and no (0) months thereafter, on the thirty-first day of July, 1999.
The initial term of the Lease, as set forth above, is sometimes hereinafter
referred to as the "Initial Term." Any reference to the term of this Lease or
similar reference shall be a reference to the Initial Term together with any
renewal terms (if any) of this Lease or any extensions to or modifications of
the Initial Term. Tenant shall not be liable to Landlord for the payment of
Basic Rent (as hereinafter defined) or the payment of any other obligation to
be paid by Tenant until the Commencement Date as defined in Section 2.3.
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS
Section 2.1 Landlord's Improvements. Landlord agrees to furnish at
Landlord's sole cost and expense all of the material, labor, and equipment for
the construction on the Land of the improvements ("Landlord's Improvements")
contemplated by the documents listed on Exhibit B attached hereto and made a
part hereof (such documents are sometimes hereinafter collectively referred to
as the "Preliminary Contract Documents"). Landlord's Improvements shall be
constructed in a good and workmanlike manner in substantial accordance with the
Preliminary Contract Documents and Landlord agrees to complete the construction
thereof in accordance with the applicable building code as it is presently
interpreted and enforced by the governmental bodies having jurisdiction thereof
subject to the conditions and limitations set forth in the third succeeding
paragraph. Landlord's Improvements shall consist of, among other things, an
expansion of the existing
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parking facility serving the Building to provide a total of 140 standard size
parking spaces for the Building. Tenant agrees to cause a complete set of
working drawings, including HVAC, plumbing, sprinkler, electrical,
architectural and structural (collectively, the "Working Drawings") to be
prepared in accordance with (and not reflecting items in excess of those
contemplated by) the Preliminary Contract Documents and the aforesaid building
code and to submit the same to Landlord for its approval. Landlord agrees that
it will not withhold its approval except for just and reasonable cause and will
not act in an arbitrary or capricious manner with respect to the approval of
the Working Drawings. The Working Drawings shall be approved by Landlord and
Tenant by affixing thereon the signature or initials of an authorized officer
or employee of each of the respective parties hereto and copies thereof shall
be attached to each party's copy of this Lease and make a part hereof as
Exhibit "C." Such Exhibit "C" shall be in lieu of and shall replace the
Preliminary Contract Documents except as to non-construction matters contained
in the Preliminary Contract Documents such as allowances and exclusions not
expressly and specifically superseded by the Working Drawings. the signature of
an authorized officer or employee shall be deemed conclusive evidence of the
approval indicated by such signature. Landlord agrees to appoint competent
personnel to work with Tenant in the preparation of the Working Drawings and
Tenant agrees to appoint an officer or employee of Tenant to work with Landlord
in the preparation of the Working Drawings. In addition to the Working Drawings
(which Tenant shall cause to be prepared), Landlord shall cause to be prepared
civil engineering drawings ("Civil Drawings") for the expansion of the parking
lot, which Civil Drawings shall be subject to Tenant's review and approval.
Tenant agrees that it will not act in an arbitrary or capricious manner with
respect to the approval of the Civil Drawings. The Civil Drawings will be
attached to the Lease in the manner provided above relative to attachment of
the Working Drawings.
After Tenant delivers the Working Drawings to Landlord, Landlord shall
have ten (10) days to approve or disapprove the Working Drawings and, in the
event Landlord does not approve the Working Drawings, Landlord shall notify
Tenant of Landlord's comments to the Working Drawings and under what conditions
Landlord would approve the Working Drawings. In the event Landlord disapproves
the Working Drawings and furnishes comments to Tenant within the time limits
prescribed herein, Tenant shall incorporate the comments into the Working
Drawings within five (5) days from receipt thereof and resubmit the Working
Drawings to Landlord who shall have five (5) days to approve or disapprove the
revised Working Drawings and, in the event Landlord does not approve the
revised Working Drawings, the procedure set forth herein shall be followed
until such time as Landlord has approved the Working Drawings.
Tenant shall be responsible for procuring the building permit
("Building Permit") for Landlord's Improvements, which Building Permit shall be
procured by Tenant and furnished to Landlord on or before May 27, 1992.
Landlord shall reasonably cooperate with Tenant in procuring the Building
Permit; provided, however, nothing herein contained shall diminish Tenant's
responsibility to procure the Building Permit and deliver the same to Landlord
on or before May 27, 1992. When Landlord requests Tenant to specify details or
layouts, Tenant shall specify same, subject to the provisions of the
Specifications and the Drawings, so as not to delay completion of the
Landlord's Improvements. Tenant shall pay to Landlord all increased costs
reasonably incurred by Landlord and damages incurred by Landlord attributable
to delays solely caused by Tenant; provided, however, in the event the delay
caused by Tenant is of a nature that does not preclude Landlord from otherwise
proceeding to complete all or a portion of the Landlord's Improvements,
Landlord shall, to the extent possible under the circumstances, use reasonable
efforts to endeavor to proceed to complete the portion of Landlord's
Improvements not affected by
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such delay.
Landlord and Tenant expressly agree and acknowledge that Tenant has
independently employed and retained the architectural firm of Tilton and Lewis,
Inc. ("Tilton") and the engineering firm of Klaucens & Associates, Inc.
("Klaucens; "Klaucens; "Tilton & Klaucens being sometimes hereinafter
collectively referred to as "Tenant's Consultants") in connection with the
preparation of certain of the Preliminary Contract Documents and Working
Drawings. Tenant shall, at Tenant's sole cost and expense, be responsible for
causing the Working Drawings to be prepared in accordance with applicable
building codes and rules and regulations of governmental authorities having
jurisdiction thereof and other applicable laws, including without limitation The
Americans With Disabilities Act as amended from time to time and the rules and
regulations promulgated thereunder (the "Act"). Tenant shall cause Landlord to
be named as a additional insured on the "errors and omissions" insurance policy
maintained by Klaucens, which policy shall be written in limits of not less
than One Million and 00/100 Dollars ($1,000,000.00). Tenant agrees to save,
defend, indemnify and hold Landlord and its employees and agents from and
against any loss, cost, liability, damage, claim (whether or not the same is
groundless, false or fraudulent), cause of action, expense (including without
limitation reasonable attorneys' fees), penalties or settlement arising from or
related to (i) any architectural, design and/or engineering defects contained
in the Preliminary Contract Documents prepared by Tenant's Consultants or the
Working Drawings, including without limitation non-compliance of the same with
applicable building codes, and rules and regulations of governing bodies having
jurisdiction thereof or other applicable laws, including the Act or (ii) errors
and/or omissions and/or negligent acts by Tenant's Consultants; provided,
however, nothing herein contained shall diminish Landlord's obligation to
construct Landlord's Improvements substantially in accordance with the Working
Drawings, and in the event Landlord fails to so construct Landlord's
Improvements Landlord shall be responsible for matters caused solely and
directly by such failure (excluding any matter attributable to any
architectural, design or engineering defects contained in the Preliminary
Contract Documents prepared by Tenant's Consultants or the Working Drawings or
from errors and/or omissions and/or negligent acts by Tenant's Consultants). In
the event of any dispute as to construction of Landlord's Improvements in the
substantial accordance with the Working Drawings or the existence of any
incomplete items referred to in Section 2.5 or the completion thereof, such
dispute shall be decided by Landlord and Tenant's respective architects
(sometimes hereinafter collectively referred to as the "Architects"). If said
dispute has not been resolved within two (2) business days from submission of
same to the Architects, the Architects shall appoint a third party to resolve
the dispute, with directions to resolve said dispute no later than five (5)
business days from the date of the dispute.
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If said dispute has not been resolved within the time limits prescribed, then
the parties shall have all available rights and remedies at law or in equity or
otherwise, subject to the terms of this Lease.
If Tenant's requests for Landlord's Improvements cause the aggregate
price allowances set forth in Exhibit "D" attached hereto and made a part
hereof to be exceeded or result in any other increase in cost to Landlord, such
excess price or increased cost (together with a 10% general contractor's fee)
shall be paid by Tenant to Landlord in cash within thirty (30) days from the
date Landlord's Improvements are substantially completed and Landlord has
submitted a written statement to Tenant requesting such payment. In the event
that the price of any portion of Landlord's Improvements for which an allowance
is provided in Exhibit D is less than the amount allowed, there shall be no
cash or other refund.
Section 2.2 Force Majeure. Landlord shall diligently proceed with the
construction of the Landlord's Improvements and complete the same and deliver
possession thereof to Tenant on or about July 15, 1992; provided, however, if
delay is caused or contributed to by labor disputes, casualties, acts of God or
the public enemy, governmental embargo restrictions, shortages of fuel, labor,
of building materials, action or non-action of public utilities, or of local
state or federal governments affecting the work, or other causes (other than
obtaining financing for the construction of Landlord's Improvements) beyond
Landlord's reasonable control, including without limitation delays in the
issuance of necessary permits and approvals and delays caused or contributed to
by (i) failure of Tenant to secure the Building Permit and deliver the same to
Landlord on or before May 27, 1992 unless such failure is solely and directly
caused by Landlord's unwillingness to reasonably cooperate with Tenant in
procuring the Building Permit (notwithstanding that Landlord may be able
independently to secure preliminary approvals or permits for commencement of
construction of Landlord's Improvements or any portion thereof) or (ii) failure
of Tenant to execute and deliver a counterpart of this Lease Agreement in a
form acceptable to Landlord on or before May 22, 1992, or failure of Tenant to
deliver all of the Working Drawings to Landlord on or before May 22, 1992, or
(iii) failure of Tenant to make equipment and material selections required by
the Specifications in a prompt and timely manner, or (iv) act or neglect of
Tenant, or those acting for or under Tenant, including without limitation,
change orders requested by Tenant (the matters set forth in clauses (i), (ii),
(iii) and (iv) above are sometimes hereinafter referred to individually as a
"Tenant Delay" and collectively as the "Tenant Delays"), then the time of
completion of said construction shall be extended for the additional time
caused by such delay (such delays, including Tenant Delays, are each sometimes
hereinafter referred to as an "Excused Delay") and the rent reserved and
covenant to pay same shall not commence until the Commencement Date (as herein
defined) and failure to give possession on the date of commencement of the
Initial Term shall in no way affect the validity of this Lease or the
obligations of Tenant hereunder. In the event completion of said construction
is delayed in accordance with the provisions of this Section 2.2, the
termination date of the Initial Term shall be delayed for an equal number of
days so that in all events the Initial Term shall consist of seven (7) years,
two (2) weeks and no (0) months.
Section 2.3 Possession of Demised Premises. Tenant shall be
responsible for Landlord's increased cost of labor and materials if any, and
loss of rent, arising out of delay in the completion of the Demised Premises
caused by the occurrence of a Tenant Delay. Tenant shall not be liable to
Landlord for the payment of Basic Rent or the payment of any other obligation to
be paid by Tenant under this Lease nor shall Tenant have any right to
possession or use of the Demised Premises until the date upon which the Demised
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Premises are substantially completed and ready for occupancy for the conduct of
Tenant's business by Tenant ("Commencement Date"). If the Landlord's
Improvements are not substantially completed but are partially ready for
occupancy, Tenant may, but need not, occupy the portion of same that is ready
for occupancy, and in the event of such occupancy Tenant shall pay to Landlord
the pro rata portion of the full Basic Rent and the pro rata portion of the
full amount of other obligations to be paid by Tenant hereunder equitably based
upon the value and area of the Building occupied by Tenant. If Tenant occupies
any portion of the Demised Premises prior to substantial completion of the
Landlord's Improvements the terms of this Lease shall apply to such occupancy
or use of the Demised Premises by Tenant. Basic Rent and the payment of other
obligations to be paid by Tenant shall commence upon the Commencement Date;
provided, however, in the event that Landlord's Improvements are partially
completed and partially ready for occupancy, and are occupied by Tenant, a pro
rata portion of the Basic Rent and the pro rata portion of all other
obligations to be paid by Tenant shall be payable commencing with such date of
partial occupancy, and shall be equitably adjusted from time to time based upon
the area and value of the portion of Landlord's Improvements substantially
completed and ready for Tenant's occupancy. The failure of Tenant to take
possession of or to occupy the Demised Premises or any portion thereof which
Tenant is required to occupy on or after the date Landlord's Improvements or
such applicable portion thereof are substantially complete and ready for
occupancy by Tenant shall not serve to relieve Tenant of said obligations or
delay payments by Tenant to Landlord. Tenant shall be allowed not less than 30
days prior to the Commencement Date to install its machinery, equipment,
fixtures and other personal property on the Demised Premises during the final
stages of completion of construction provided that Tenant does not thereby
interfere with the completion of construction or occasion any labor dispute as
a result of such installations and provided further that Tenant does hereby
agree to assume all risk of loss or damage to such machinery, equipment,
fixtures and other personal property, and to indemnify, defend and hold harmless
Landlord from any loss or damage to such machinery, equipment, fixtures and
personal property, and all liability, loss or damage arising from any injury to
the property of Landlord, or its contractors, subcontractors or materialmen,
and any death or personal injury to any person or persons to the extent arising
out of such installations, except for liability, loss or damage caused by
Landlord's negligence or willful misconduct. Delay in putting Tenant in
possession of the Demised Premises shall not make Landlord liable for any
damages arising therefrom other than as contemplated by Article XXV hereof.
Section 2.4 Construction Guaranty. Landlord guarantees the
Landlord's Improvements against defective workmanship and/or materials for a
period of one year from the date of substantial completion of Landlord's
Improvements and Landlord agrees, at its sole cost and expense, to repair or
replace any defective item occasioned by poor workmanship and/or materials
during said one-year period, and performance of such one-year guaranty shall be
Landlord's sole and exclusive obligation with respect to defective workmanship
and/or materials, and Tenant's rights to enforce such one-year guaranty shall
be Tenant's sole and exclusive remedy with respect to such defective
workmanship and/or materials in limitation of any contract, warranty or other
rights, whether express or implied, that Tenant may otherwise have under
applicable law. The Landlord's Improvements shall be considered substantially
completed at such time as the municipality having jurisdiction thereof issues a
certificate of occupancy permitting Tenant to occupy the Landlord's
Improvements or takes such other action as may be customary to permit occupancy
or use thereof; provided, however, the issuance of a certificate of occupancy
of such other action as may be customary to permit occupancy or use thereof
shall not be a condition to payment of rent or commencement of the term if
failure to secure such certificate or action is caused by the act or neglect of
Tenant or unless matters required for issuance
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are not the responsibility of Landlord (e.g. procurement of operating permits
and approvals or any other requirements related to, or applicable to because
of, particular uses proposed for the Landlord's Improvements). From and after
the expiration of the one year guaranty of Landlord against defective
workmanship and material Landlord agrees to cooperate with Tenant in the
enforcement by Tenant, at Tenant's sole cost and expense, of any express
warranties or guaranties of workmanship or materials given by subcontractors or
materialmen that guarantee or warrant against defective workmanship or
materials for a period of time in excess of the one-year period described above
and to cooperate with Tenant in the enforcement by Tenant, at Tenant's sole
cost and expense, of any service contracts that provide service, repair or
maintenance to any item incorporated in the Building for a period of time in
excess of such one-year period; provided, however, to the extent any of the
foregoing warranties are assignable to Tenant, Landlord shall assign the same
(which assignment shall not be effective until expiration of Landlord's one
year warranty against defective workmanship and materials), in which event
Landlord's above covenant shall be inoperative with respect to the warranties
and contracts so assigned, and provided further Landlord shall not assign any
such warranties (or cooperate with Tenant as above provided) which relate to
Landlord's obligations under Section 8.7 hereof, which warranties shall be
enforceable exclusively by Landlord during the entire term of this Lease
Agreement.
Section 2.5 Tenant's Acceptance of Demised Premises. Within a period
of 120 days after commencement of the Initial Term, Tenant shall notify
Landlord, in writing, of all portions of the Landlord's Improvements which are
incomplete and Landlord shall use reasonable efforts to complete such items
within thirty (30) days thereafter, subject to the occurrence of Excused
Delays.
Section 2.6 Repair and Maintenance. Save and except for the one year
guaranty against defective items occasioned by poor workmanship and/or
materials referred to in Section 2.4 above and the incomplete items referred to
in Section 2.5 above, Tenant upon commencement of the term shall have and hold
the Demised Premises as the same shall then be without any liability or
obligation on the part of Landlord for making any alterations, improvements or
repairs of any kind in or about the Demised Premises for the term of this
Lease, or any extension or renewal thereof, and Tenant agrees to maintain the
Demised Premises and all parts thereof in a good and sufficient state of repair
as required by the provisions of this Lease.
ARTICLE III
BASIC RENT
Section 3.1 Basic Rent. In consideration of the leasing of the Demised
Premises and the construction of the Landlord's Improvements referred to in
Article II hereof, Tenant covenants to pay Landlord, without previous demand
therefor and without any right of setoff or deduction whatsoever, at the office
of Landlord at:
c/o Normandale Properties
North Corporation
2311 West 22nd Street
Oak Brook, Illinois 60521
Attention: Accounting Manager
or at such other place as Landlord may from time to time designate in writing,
an annual rental for the Initial Term of this Lease of Three Hundred Twenty-Two
Thousand Three Hundred Sixty-Seven and 52/100 Dollars ($322,367.52), payable
monthly, in advance, in equal installments of Twenty-Six Thousand Eight Hundred
Sixty-Three and 96/100 Dollars ($26,863.96), commencing on the Commencement
Date
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and continuing on the first day of each month thereafter for the succeeding
months during the balance of the Initial Term. The rent provided for in this
Section 3.1 is hereinafter called the "Basic Rent."
Section 3.2 Basic Rent Adjustment. If the Initial Term of this Lease
does not commence on the first day of a calendar month or end on the last day
of a calendar month, the installment of Basic Rent for the partial calendar
month at the commencement or the termination of the term shall be prorated on
the basis of the number of days of the term within such calendar month.
Section 3.3 Additional Rent. Except as otherwise expressly provided
herein, the Basic Rent shall be absolutely net to Landlord so that this lease
shall yield, net to Landlord, the Basic Rent specified in Section 3.1 in each
year of the term of this Lease and that all impositions, insurance premiums,
utility charges, maintenance, repair and replacement expenses, all expenses
relating to compliance with laws, and all other costs, fees, charges, expenses,
reimbursements and obligations of every kind and nature whatsoever relating to
the Demised Premises (excepting only Landlord's portion of the proration of
real estate taxes and special assessments for the first and last years of the
term of this Lease referred to in Section 5.1 and certain taxes of Landlord
referred to in the last sentence of Section 5.3 of this Lease) which may arise
or become due during the term or by reason of events occurring during the term
of this Lease shall be paid or discharged by Tenant. In the event Tenant fails
to pay or discharge any imposition, insurance premium, utility charge,
maintenance repair or replacement expense which it is obligated to pay or
discharge, Landlord may, but shall not be obligated to pay the same, and in
that event Tenant shall reimburse Landlord therefor upon demand and pay the
same as additional rent (all such items being sometimes hereinafter
collectively referred to as "Additional Rent"), and Tenant hereby agrees to
indemnity, defend and save Landlord harmless from the against such impositions,
insurance premiums, utility charges, maintenance, repair and replacement
expenses, all expenses relating to compliance with laws, and all other costs,
fees, charges, expenses, reimbursements and obligations above referred to.
Anything herein to the contrary notwithstanding, the rights and obligations of
the parties hereto relating to environmental matters shall be governed
exclusively by the provisions of Sections 9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 9.11
and 9.12.
Section 3.4 Delinquent Payments. Except as otherwise expressly
provided herein, all payments of Basic Rent and Additional Rent shall be
payable without previous demand therefor and without any right of setoff or
deduction whatsoever, and in case of nonpayment of any item of Additional Rent
by Tenant when the same is due, Landlord shall have, in addition to all its
other rights and remedies, all of the rights and remedies available to Landlord
under the provisions of this Lease or by law in the case of nonpayment of Basic
Rent. The performance and observance by Tenant of all the terms, covenants,
conditions and agreements to be performed or observed by Tenant hereunder shall
be performed and observed by Tenant at Tenant's sole cost and expense. Any
installment of Basic Rent or Additional Rent or any other charges payable by
Tenant under the provisions hereof which shall not be paid when due or within
ten days thereafter shall bear interest at an annual rate equal to two
percentage points per annum in excess of the published "prime rate" or "base
rate" of interest charged by Norwest Bank Minneapolis, N.A. (or similar
institution if said Bank shall cease to exist or to publish such a prime rate)
from the date when the same is due hereunder until the same shall be paid, but
in no event in excess of the maximum lawful rate permitted to be charged by
Landlord against Tenant. Said rate of interest is sometimes hereinafter
referred to as the "Maximum Rate of Interest." In addition, any installment of
Basic Rent or Additional Rent or any other charge payable by Tenant under the
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provisions hereof which shall not be paid when due and which shall remain
unpaid ten days thereafter shall be subject to a late payment fee of 5% of the
unpaid amount.
Section 3.5 Independent Obligations. Any term or provision of this
Lease to the contrary notwithstanding, the covenants and obligations of Tenant
to pay Basic Rent and Additional Rent hereunder shall be independent from any
obligations, warranties or representations, express or implied, if any, of
Landlord herein contained.
ARTICLE IV
USE OF DEMISED PREMISES
Section 4.1 Permitted Use. The Demised Premises including all
buildings or other improvements hereafter erected upon the same shall be used
for such activities as may be lawfully carried on in and about the Demised
Premises. Tenant shall not use or occupy the same, or knowingly permit them to
be used or occupied, contrary to any statute, rule, order ordinance,
requirement or regulation applicable thereto, or in any manner which would
violate any certificate of occupancy affecting the same, or which would make
void or voidable any insurance then in force with respect thereto or which
would make it impossible to obtain fire or other insurance thereon required to
be furnished hereunder by Tenant, or which would cause structural injury to the
improvements or cause the value or usefulness of the Demised Premises, or any
portion thereof, substantially to diminish (reasonable wear and tear excepted),
or which would constitute a public or private nuisance or waste or would
violate any Hazardous Materials Laws (as defined in Section 9.5), and Tenant
agrees that it will promptly, upon discovery of any such use, take all
necessary steps to compel the discontinuance of such use.
Section 4.2 Preservation of Demised Premises. Tenant shall not use,
suffer, or permit the Demised Premises, or any portion thereof, to be used by
Tenant, any third party or the public in such manner as might reasonably tend
to impair Landlord's title to the Demised Premises, or any portion thereof, or
in such manner as might reasonably make possible a claim or claims of adverse
usage or adverse possession by the public, as such, or third persons, or of
implied dedication of the Demised Premises, or any portion thereof. Nothing in
this Lease contained and no action or inaction by Landlord shall be deemed or
construed to mean that Landlord has granted to Tenant any right, power or
permission to do any act or make any agreement that may create, or give rise to
or be the foundation for any such right, title, interest, lien, charge or other
encumbrance upon the estate of Landlord in the Demised Premises.
Section 4.3 Acceptance of Demised Premises. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to the Demised Premises or the Building or with respect
to the suitability or fitness of either for the conduct of Tenant's business or
for any other purpose and Tenant accepts the Demised Premises in an "as is"
condition subject to the provisions of Article II hereof. Tenant shall comply
with any recorded covenants, conditions, and restrictions affecting the Demised
Premises and the Building as of the commencement of the Lease or which are
recorded during the Lease Term.
ARTICLE V
PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 5.1 Payment of Impositions. Tenant covenants and agrees to pay during
the term of this Lease, as Additional Rent, before any fine, penalty, interest
or cost may be added thereto for
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the nonpayment thereof, all real estate taxes, special assessments, water rates
and charges, sewer rates and charges, including any sum or sums payable for
present or future sewer or water capacity, charges for public utilities, street
lighting, excise levies, licenses, permits, inspection fees, other governmental
charges, and all other charges or burdens of whatsoever kind and nature
(including costs, fees, and expenses of complying with any restrictive
covenants or similar agreements to which the Demised Premises are subject)
incurred in the use, occupancy, ownership, operations, leasing or possession of
the Demised Premises, without particularizing by any known name or by whatever
name hereafter called, and whether any of the foregoing be general or special,
ordinary or extraordinary, foreseen or unforeseen (all of which are sometimes
herein referred to as "Impositions"), which at any time during the term may
have been or may be assessed, levied, confirmed, imposed upon, or become a lien
on the Demised Premises, or any portion thereof, or any appurtenance thereto,
rents or income therefrom, and such easements or rights as may now or hereafter
be appurtenant or appertain to the use of the Demised Premises. Tenant shall
pay all special (or similar) assessments for public improvements or benefits
which, during the term of this Lease shall be laid, assessed, levied or imposed
upon or become payable or become a lien upon the Demised Premises, or any
portion thereof; provided, however, that if by law any special assessment is
payable (without default) or, at the option of Landlord, may be paid (without
default) in installments (whether or not interest shall accrue on the unpaid
balance of such special assessment), Tenant may pay the same, together with any
interest accrued on the unpaid balance of such special assessment in
installments as the same respectively become payable and before any fine,
penalty, interest or cost may be added thereto for the nonpayment of any such
installment and the interest thereon. Tenant shall pay all special assessments
or installments thereof (including interest accrued thereon), whether
heretofore or hereafter laid, assessed, levied or imposed upon the Demised
Premises, or any portion thereof, which are due and payable during the term of
this Lease. Landlord shall pay all installments of special assessments
(including interest accrued on the unpaid balance) which are payable prior to
the commencement and after the termination date of the term of this Lease.
Tenant shall pay all real estate taxes, whether heretofore or hereafter levied
or assessed upon the Demised Premises, or any portion thereof, which are due
and payable during the term of this Lease. Landlord shall pay all real estate
taxes which are payable prior to the commencement of the term of this Lease and
after the termination date of the term of this Lease regardless of the year
assessed and levied. Provisions herein to the contrary notwithstanding,
Landlord shall pay that portion of the real estate taxes and installments of
special assessments due and payable in respect to the Demised Premises during
the year the term commences and the year in which the term ends which the
number of days in said year not within the term of this Lease bears to 365, and
Tenant shall pay the balance of said real estate taxes and installments of
special assessments during said years.
Section 5.2 Tenant's Right to Contest Impositions. Subject to Section
5.6 hereof, Tenant shall have the right at its own expense to contest the
amount or validity, in whole or in part, of any Imposition by appropriate
proceedings diligently conducted in good faith, but only after payment of such
Imposition, unless such payment, or a payment thereof under protest, would
operate as a bar to such contest or interfere materially with the prosecution
thereof, in which event, notwithstanding the provisions of Section 5.1 hereof,
Tenant may postpone or defer payment of such Imposition if (a) neither the
Demised Premises nor any portion thereof would, by reason of such postponement
or deferment, be in danger of being forfeited or lost, and (b) Tenant shall
have deposited with Landlord cash or a certificate of deposit payable to
Landlord issued by a national bank or federal savings and loan association in
the amount of the Imposition so contested and unpaid, together with all
interest and penalties which may accrue in Landlord's
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reasonable judgment in connection therewith, and all charges that may or might
be assessed against or become a charge on the Demised Premises, or any portion
thereof, during the pendency of such proceedings. If, during the continuance of
such proceedings, Landlord shall, from time to time, reasonably deem the amount
deposited, as aforesaid, insufficient, Tenant shall, upon demand of Landlord,
make additional deposits of such additional sums of money or such additional
certificates of deposit as Landlord may reasonably request. Upon failure of
Tenant to make such additional deposits, the amount theretofore deposited may
be applied by Landlord to the payment, removal and discharge of such
Imposition, and the interest, fines and penalties in connection therewith, and
any costs, fees (including attorney's fees) and other liability (including
costs incurred by Landlord) accruing in any such proceedings. Upon the
termination of any such proceedings, Tenant shall pay the amount of such
Imposition or part thereof, if any, as finally determined in such proceedings,
the payment of which may have been deferred during the prosecution of such
proceedings, together with any costs, fees, including attorney's fees,
interest, penalties, fines and other liability in connection therewith, and
upon such payment Landlord shall return all amounts or certificates deposited
with it with respect to the contest of such Imposition, as aforesaid, or, at
the written direction of Tenant, Landlord shall make such payment
out of the funds on deposit with Landlord and the balance, if any, shall be
returned to Tenant. Tenant shall be entitled to the refund of any Imposition,
penalty, fine and interest thereon received by Landlord which have been paid by
Tenant or which have been paid by Landlord but for which Landlord has been
previously reimbursed in full by Tenant. Landlord shall not be required to join
in any proceedings referred to in this Section 5.2 unless the provisions of any
law, rule or regulation at the time in effect shall require that such
proceedings be brought by or in the name of Landlord, in which event Landlord
shall join in such proceedings or permit the same to be brought in Landlord's
name upon compliance with such conditions as Landlord may reasonably require.
Landlord shall not ultimately be subject to any liability for the payment of
any fees, including attorney's fees, costs and expenses in connection with such
proceedings. Tenant agrees to pay all such fees (including reasonable
attorney's fees), costs and expenses or, on demand, to make reimbursement to
Landlord for such payment. During the time when any such certificate of deposit
is on deposit with Landlord, and prior to the time when the same is returned to
Tenant or applied against the payment, removal or discharge of Impositions, as
above provided, Tenant shall be entitled to receive all interest paid thereon,
if any. Cash deposits shall not bear interest.
Section 5.3. Levies and Other Taxes. If, any time during the term of
this Lease, any method of taxation shall be such that there shall be levied,
assessed or imposed on Landlord, or on the Basic Rent or Additional Rent, or on
the Demised Premises or on the value of the Demised Premises, or any portion
thereof, a capital levy, sales or use tax, gross receipts tax or other tax on
the rents received therefrom, or a franchise tax, or an assessment, levy or
charge measured by or based in whole or in part upon such rents or value, Tenant
covenants to pay and discharge the same, it being the intention of the parties
hereto that the rent to be paid hereunder shall be paid to Landlord absolutely
net without deduction or charge of any nature whatsoever foreseeable or
unforeseeable, ordinary or extraordinary, or of any nature, kind or description,
except as in this Lease otherwise expressly provided. Nothing in this Lease
contained shall require Tenant to pay any municipal, state or federal net income
or excess profits taxes assessed against Landlord, or any municipal, state or
federal capital levy, estate, succession, inheritance or transfer taxes of
Landlord, or corporation franchise taxes imposed upon any corporate owner of the
fee of the Demised Premises.
Section 5.4 Evidence of Payment. Tenant covenants to furnish
Landlord, within 15 days after the date upon which any
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Imposition or other tax, assessment, levy or charge would be delinquent,
official receipts of the appropriate taxing authority, or other appropriate
proof satisfactory to Landlord, evidencing the payment of the same. If Tenant
has failed to furnish Landlord with official receipts of the appropriate taxing
authority or other appropriate proof satisfactory to Landlord evidencing
payment of any Imposition or other tax, assessment, levy or charge within 15
days after the date upon which the same would be delinquent, the certificate,
advice or bill of the appropriate official designated by law to make or issue
the same or to receive payment of any Imposition or other tax, assessment, levy
or charge may be relied upon by Landlord as sufficient evidence that such
Imposition or other tax, assessment, levy or charge is due and unpaid at the
time of the making or issuance of such certificate, advice or bill; provided,
however, so long as Tenant is not otherwise in default hereunder, Landlord
shall notify Tenant (in writing or orally if given to Tenant's Senior Vice
President of Finance) prior to payment of any such Imposition by Landlord.
Section 5.5 Escrow for Taxes and Assessments. At Landlord's written
demand after any Event of Default and for as long as such Event of Default is
uncured, Tenant shall pay to Landlord the known or estimated yearly real estate
taxes and assessments payable with respect to the Demised Premises in monthly
payments equal to one-twelfth of the known or estimated yearly real estate
taxes and assessments next payable with respect to the Demised Premises. From
time to time Landlord may reestimate the amount of real estate taxes and
assessments, and in such event Landlord shall notify Tenant, in writing, of
such reestimate and fix future monthly installments for the remaining period
prior to the next tax and assessment due date in an amount sufficient to pay
the reestimated amount over the balance of such period after giving credit for
payments made by Tenant on the previous estimate. If the total monthly payments
made by Tenant pursuant to this Section 5.5 shall exceed the amount of payments
necessary for said taxes and assessments, such excess shall be credited on
subsequent monthly payments of the same nature; but if the total of such
monthly payments so made under this paragraph shall be insufficient to pay
Landlord such amount as maybe necessary to make up the deficiency. Payment by
Tenant of real estate taxes and assessments under this section shall be
considered as performance of such obligation under the provisions of Section
5.1 hereof.
Section 5.6 Landlord's Right to Contest Impositions. In addition to
the right of Tenant under Section 5.2 to contest the amount or validity of
Impositions, Landlord shall also have the right, but not the obligation, to
contest the amount or validity, in whole or in part, of any Impositions not
contested by Tenant, by appropriate proceedings conducted in the name of
Landlord or in the name of Landlord and Tenant; provided however, and
anything in this Article V to the contrary notwithstanding, Landlord shall have
the right to contest any Imposition (whether or not contested by Tenant) due and
payable during the Tax Cap Period (as herein defined) and if Landlord elects to
so contest Tenant shall not be entitled to contest any such Imposition, but
shall cooperate with Landlord in connection with Landlord's contest. If
Landlord elects Impositions, such contests by Landlord shall be at Landlord's
expense, provided, however, that if the amounts payable by Tenant amounts is
avoided or reduced) by reason of Landlord's contest of Landlord in contesting
Impositions, but such reimbursements shall not be in excess of the amount saved
by Tenant by reason of Landlord's actions in contesting such Impositions.
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Section 5.7 Real Estate Tax Limitation. Anything in this Article V to
the contrary notwithstanding, Tenant's aggregate liability for payment of real
estate taxes which are due and payable for the thirty-six (36) month period
following the Commencement Date (the "Tax Cap Period') shall not exceed the
sum of Two Hundred Four Thousand One Hundred Two and 50/100 Dollars
($204,102.50) taking into account any sums which are refunded by reason of tax
contest proceedings (such amount is sometimes hereinafter referred to as the
"Tax Cap'). In the event real estate taxes which are due and payable during
the Tax Cap Period exceed the Tax Cap, Tenant shall pay such excess amount
prior to the due date of the real estate tax installment causing the Tax Cap to
be exceeded and Landlord shall reimburse Tenant for such excess amount within
thirty (30) days from receipt by Landlord of a written request for
reimbursement setting forth in reasonable detail computation of such excess
amount.
Notwithstanding the foregoing, if real estate taxes which are due and
payable during the Tax Cap Period are being contested in accordance with the
provisions of this Article V and payment thereof may be deferred or postponed
during such contest, then Landlord shall not be required to pay the Tenant the
amount, if any, by which said real estate taxes exceed the Tax Cap until
termination of the tax contest proceeding. Further, if Landlord shall have paid
to Tenant the amount by which real estate taxes due and payable during the Tax
Cap Period exceed the Tax Cap and all or a portion of said real estate taxes is
subsequently refunded, then Landlord shall be entitled to such refund, not to
exceed amounts paid by Landlord to Tenant in excess of the Tax Cap, and Tenant
shall be entitled to the balance of such refund, if any. Reimbursement of costs
incurred by Landlord in contesting the real estate taxes so refunded shall be
governed by Section 5.6 hereof.
ARTICLE VI
INSURANCE
Section 6.1 Tenant's Insurance Obligations. Tenant, at its sole cost and
expense, shall obtain and continuously maintain in full force and effect during
the term of this Lease, commencing with the date that rental (full or partial)
commences, policies of insurance covering the Improvements constructed,
installed or located on the Demised Premises naming the Landlord, as an
additional insured, against (a) loss or damage by fire; (b) loss or damage from
such other risks or hazards now or hereafter embraced by an "Extended Coverage
Endorsement,' including, but not limited to, windstorm, hail, explosion,
vandalism, riot and civil debris commotion, damage from vehicles, smoke damage,
water damage and debris removal; (c) loss for flood if the Demised
Premises are in a designated flood or flood insurance area; (d) loss for damage
by earthquake if the Demised Premises are located in an earthquake-prone area;
(e) loss from so-called explosion, collapse and underground hazards; and (f)
loss or damage from such other risks or hazards of a similar or dissimilar
nature which are now or may hereafter be customarily insured against with
respect to improvements similar in construction, design, general location, use
and occupancy to the Improvements. At all times, such insurance coverage shall
be in an amount equal to 100% of the then "full replacement cost" of the
Improvements. "Full Replacement Cost" shall be interpreted to mean the cost of
replacing the improvements without deduction for depreciation or wear and tear,
and it shall include a reasonable sum for architectural, engineering, legal,
administrative and supervisory fees connected with the restoration or
replacement of the Improvements in the event of damage thereto or destruction
thereof. If a sprinkler system shall be located in the Improvements, sprinkler
leakage insurance shall be procured and continuously maintained by Tenant at
Tenant's sole cost and expense. For the period prior to the date when full or
partial rental commences hereunder Landlord, at its sole cost and expense,
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shall maintain in full force and effect, on a completed value basis, insurance
coverage on the Building on Builder's Risk or other comparable coverage.
Section 6.2 Insurance Coverage. During the term of this Lease,
Tenant, at its sole cost and expense, shall obtain and continuously maintain in
full force and effect the following insurance coverage:
(a) Comprehensive general liability insurance against any loss,
liability or damage on, about or relating to the Demised Premises,
or any portion thereof, with limits of not less than Five Million
Dollars ($5,000,000.00) combined single limit, per occurrence and
aggregate, coverage on an occurrence basis. Any such insurance
obtained and maintained by Tenant shall name Landlord as an
additional insured therein and shall be obtained and maintained
from and with a reputable and financially sound insurance company
authorized to issue such insurance in the state in which the
Demised Premises are located. Such insurance shall specifically
insure (by contractual liability endorsement) Tenant's obligations
under Section 20.3 of this Lease.
(b) Boiler and pressure vessel (including, but not limited to,
pressure pipes, steam pipes and condensation return pipes)
insurance, provided the building contains a boiler or other
pressure vessel or pressure pipes. Landlord shall be named as an
additional insured in such policy or policies of insurance.
(c) Such other insurance and in such amounts as may from time to time
be reasonably required by Landlord, against other insurable
hazards which at the time are commonly insured against in the case
of premises and/or buildings or improvements similar in
construction, design, general location, use and occupancy to those
on or appurtenant to the Demised Premises.
The insurance set forth in this Section 6.2 shall be maintained by
Tenant at not less than the limits set forth herein until reasonably required
to be changed from time to time by Landlord, in writing, whereupon Tenant
covenants to obtain and maintain thereafter such protection in the amount or
amounts so required by Landlord.
Section 6.3 Insurance Provisions. All policies of insurance required
by Section 6.1 shall provide that the proceeds thereof shall be payable to
Landlord and if Landlord so requests shall also be payable to any contract
purchaser of the Demised Premises and the holder of any mortgages now or
hereafter becoming a lien on the fee of the Demised Premises, or any portion
thereof, as the interest of such purchaser or holder appears pursuant to a
standard named insured or mortgagee clause. Tenant shall not, on Tenant's own
initiative or pursuant to request or requirement of any third party, take out
separate insurance concurrent in form or contributing in the event of loss with
that required in Section 6.1 hereof, unless Landlord is named therein as an
additional insured with loss payable as in said Section 6.1 provided. Tenant
shall immediately notify Landlord whenever any such separate insurance is taken
out and shall deliver to Landlord original certificates evidencing the same.
Each policy required under this Article VI shall have attached thereto
(a) an endorsement that such policy shall not be cancelled or materially
changed without at least 30 days prior written notice to Landlord, and (b) an
endorsement to the effect that the insurance as to the interest of Landlord
shall not be invalidated by any act or neglect of Landlord or Tenant. All
policies of insurance shall be written in companies reasonably satisfactory to
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Landlord and licensed in the state in which the Demised Premises are located.
Such certificates of insurance shall be in a form reasonably acceptable to
Landlord, shall be delivered to Landlord upon commencement of the term and
prior to expiration of such policy, new certificates of insurance, shall be
delivered to Landlord not less than 20 days prior to the expiration of the then
current policy term.
Section 6.4 Waiver of Subrogation. Tenant shall cause to be inserted
in the policy or policies of insurance required by this Article VI hereof a
so-called "Waiver of Subrogation Clause" as to Landlord. Tenant hereby waives,
releases and discharges Landlord, its agents and employees from all claims
whatsoever arising out of loss, claim, expense or damage to or destruction
covered or coverable by insurance required under this Article VI
notwithstanding that such loss, claim, expense or damage may have been caused
by Landlord, its agents or employees, and Tenant agrees to look to the
insurance coverage only in the event of such loss.
Section 6.5 Tenant's Indemnification of Landlord. Tenant shall
maintain insurance coverage (including loss of use and business interruption
coverage) upon Tenant's business and upon all personal property of Tenant or
the personal property of others kept, stored or maintained on the Demised
Premises against loss or damage by fire, windstorm or other casualties or causes
for such amount as Tenant may desire, and Tenant agrees that such policies
shall contain a waiver of subrogation clause as to Landlord.
Section 6.6 Unearned Premiums. Upon expiration of the term of this
Lease, the unearned premiums upon any insurance policies or certificates
thereof lodged with Landlord by Tenant shall, subject to the provisions of
Section 13.6, be payable to Tenant, provided that Tenant shall not then be in
default in keeping, observing or performing the terms and conditions of this
Lease; if Tenant is then in default in keeping, observing or performing the
terms and conditions of this Lease, disposition of said unearned premiums shall
be subject to Article XII hereof.
Section 6.7 Blanket Insurance Coverage. Nothing in this Article shall
prevent Tenant from taking out insurance of the kind and in the amount provided
for under the preceding paragraphs of this Article under a blanket insurance
policy or policies (certificates thereof reasonably satisfactory to Landlord
shall be delivered to Landlord) which may cover other properties owned or
operated by Tenant as well as the Demised Premises; provided, however, that any
such policy of blanket insurance of the kind provided for shall (a) specify
therein the amounts thereof exclusively allocated to the Demised Premises or
Tenant shall furnish Landlord and the holder of any fee mortgage with a written
statement from the insurers under such policies specifying the amounts of the
total insurance exclusively allocated to the Demised Premises, and (b) not
contain any clause which would result in the insured thereunder being required
to carry any insurance with respect to the property covered thereby in an
amount not less than any specific percentage of the Full Replacement Cost of
such property in order to prevent the insured therein named from becoming a
co-insurer of any loss with the insurer under such policy; and further
provided, however, that such policies of blanket insurance shall, as respects
the Demised Premises, contain the various provisions required of such an
insurance policy by the foregoing provisions of this Article VI.
Section 6.8 Rent Loss Insurance. In addition to the insurance
coverages required to be carried and maintained by Tenant under the foregoing
provisions of this Article VI, Tenant shall procure and cause to be maintained
during the term hereof for Landlord's benefit, at Tenant's sole cost and
expense, a policy of rent loss insurance naming Landlord as the insured party,
covering Tenant's rental obligations under the Lease Agreement and providing,
among other things, that if this Lease Agreement is
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terminated as contemplated by Section 13.6 hereof then Landlord shall be
entitled to the amount of rental (Basic Rent and Additional Rent) for the
balance of the term assuming the term had not been so terminated. Such policy
shall be written by an insurance company reasonably satisfactory to Landlord
and be licensed to do business in the State of Illinois. Prior to the
commencement of the Initial Term, Tenant shall deliver to Landlord such rental
loss insurance policy and Tenant shall during the term of this Lease Agreement
deliver to Landlord a new policy at least twenty (20) days prior to expiration
of the current policy term.
ARTICLE VII
UTILITIES
Section 7.1 Payment of Utilities. During the term of this Lease, Tenant
will pay, when due, all charges of every nature, kind or description for
utilities furnished to the Demised Premises or chargeable against the Demised
Premises, including all charges for water, sewage, heat, gas, light, garbage,
electricity, telephone, steam, power, or other public or private utility
services. Prior to the Commencement Date, Tenant shall pay for all utilities or
services at the Demised Premises used by it or its agents, employees or
contractors; provided, however, nothing herein contained shall be construed to
require Tenant to pay for any utilities furnished to the Demised Premises for
use by Landlord in constructing the Landlord's Improvements.
Section 7.2 Additional Charges. In the event that any charge or fee is
required after the Commencement Date by the state in which the Demised Premises
are located, or by any agency, subdivision, or instrumentality thereof, or by
any utility company furnishing services or utilities to the Demised Premises, as
a condition precedent to furnishing or continuing to furnish utilities or
services to the Demised Premises, such charge or fee shall be deemed to be a
utility charge payable by Tenant. The provisions of this Section 7.2 shall
include, but not be limited to, any charges or fees for present or future water
or sewer capacity to serve the Demised Premises, any charges for the
underground installation of gas or other utilities or services, and other
charges relating to the extension of or change in the facilities necessary to
provide the Demised Premises with adequate utility services. In the event that
Landlord has paid any such charge or fee after the date hereof, Tenant shall
reimburse Landlord for such utility charge. Nothing contained in this Section
7.2 shall be construed to relieve Landlord of the obligation to finish
Landlord's Improvements described in Exhibit "B", including without limitation
the obligation to connect the Demised Premises to the utilities serving the
same (and pay any corresponding tap-on fees) as contemplated by the
Specifications and the Drawings.
ARTICLE VIII
REPAIRS
Section 8.1 Tenant's Repairs. Save and except for the one-year guaranty
against defective materials and workmanship or other guaranties provided for in
Section 2.4 hereof, and the completion or incomplete items provided for in
Section 2.5 hereof, Tenant, at its sole cost and expense, throughout the term
of this Lease, shall take good care of the Demised Premises (including any
improvements hereafter erected or installed on the Land), and shall keep the
same in good order, condition and repair, and irrespective of such guaranty
shall make and perform all routine maintenance thereof and all necessary
repairs thereto, interior and exterior, structural and nonstructural, ordinary
and extraordinary, foreseen and unforeseen, of every nature, kind and
description. When used in this Article VIII, "repairs" shall include all
necessary replacements, renewals, alterations, additions and betterments.
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All repairs made by Tenant shall be at least equal in quality and cost to the
original work and shall be made by Tenant in accordance with all laws,
ordinances and regulations whether heretofore or hereafter enacted. The
necessity for or adequacy of maintenance and repairs shall be measured by the
standards which are appropriate for improvements of similar construction and
class, provided that Tenant shall in any event make all repairs necessary to
avoid any structural damage or other damage or injury to the Improvements.
Section 8.2 Maintenance. Tenant, at its sole cost and expense, shall
take good care of, repair and maintain all driveways, pathways, roadways,
sidewalks, curbs, spur tracks, parking areas, loading areas, landscaped areas,
entrances and passageways in good order and repair and shall promptly remove
all accumulated snow, ice and debris from any and all driveways, pathways,
roadways, sidewalks, curbs, parking areas, loading areas, entrances and
passageways, and keep all portions of the Demised Premises, including areas
appurtenant thereto, in a clean and orderly condition free of snow, ice, dirt,
rubbish, debris and unlawful obstructions. Further, Tenant shall keep the
Demised Premises safe for human occupancy and use.
Section 8.3 Tenant's Waiver of Claims Against Landlord. Except for the
one year guaranty against defective materials and workmanship, Landlord's
undertaking to complete the incomplete items pursuant to Section 2.5 and
Landlord's structural replacement and extraordinary structural repair
obligations set forth in Section 8.7, Landlord shall not be required to furnish
any services or facilities or to make any repairs or alterations in, about or
to the Demised Premises or any improvements hereafter erected thereon. Except
for the one year guaranty against defective materials and workmanship,
Landlord's undertaking to complete the incomplete items pursuant to Section 2.5
and Landlord's structural replacement and extraordinary structural repair
obligations set forth in Section 8.7, Tenant hereby assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance
and management of the Demised Premises and all improvements hereafter erected
thereon, and Tenant hereby waives any rights created by any law now or
hereafter in force to make repairs to the Demised Premises or improvements
hereafter erected thereon at Landlord's expense.
Section 8.4 Prohibition Against Waste. Tenant shall not do or suffer
any waste or damage, disfigurement or injury to the Demised Premises, or any
improvements hereafter erected thereon, or to the fixtures or equipment
therein, or permit or suffer any overloading of the floors or other use of the
Improvements that would place an undue stress on the same or any portion
thereof beyond that for which the same was designed.
Section 8.5 Landlord's Right to Effect Repairs. If Tenant should fail
to perform any of its obligations under this Article VIII, then Landlord may,
if it so elects, in addition to any other remedies provided herein, effect such
repairs and maintenance. Any sums expended by Landlord in effecting such
repairs and maintenance shall be due and payable, on demand, together with
interest thereon at the Maximum Rate of Interest from the date of each such
expenditure by Landlord to the date of repayment by Tenant.
Section 8.6 Misuse or Neglect. Tenant shall be responsible for all
repairs to the Building which are made necessary by any misuse or neglect by:
(i) Tenant or any of its officers, agents, employees, contractors, licensees,
or subtenants; or (ii) any visitors, patrons, guests, or invitees of Tenant or
its subtenant while in or upon the Demised Premises.
Section 8.7 Anything herein to the contrary notwithstanding, except as
to structural replacements or extraordinary structural repairs made necessary
by uninsured damage caused by Tenant, during
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the term of this Lease, including any extension hereof, Landlord shall, at its
sole cost and expense, be responsible for the replacement of and extraordinary
repairs to the structural portions of the principal Building located on the
Demised Premises; provided, however, and anything herein to the contrary
notwithstanding, it is agreed and acknowledged that Tenant shall, at its sole
cost and expense, keep in good order, condition and repair the structural
portions of the principal Building located on the Demised Premises, but nothing
herein contained shall obligate Tenant to perform any extraordinary structural
repairs. For purposes hereof, the phrase "extraordinary structural repairs"
shall mean and include only those repairs to the structural portions of the
principal Building located on the Demised Premises the cost of which exceeds
$20,000.00 on an individual per occurrence basis and which repairs are not made
in the ordinary course of repair and maintenance of a facility comparable in
age, design, structure, class and construction to the Building. Tenant
acknowledges that the floor of the Demised Premises has been constructed to
withstand a uniformly distributed live load capacity of 500 pounds per square
foot in the warehouse area as designated in the original plans and
specifications and Tenant represents and warrants that it will not at any time
subject the floor of the Building located on the Demised Premises or any part
thereof to any load exceeding such capacity, and Tenant shall use all reasonable
and prudent storage techniques, including but not limited to, even distribution
of weight loads. During the term of this Lease, Tenant will not allow any person
to go upon the roof of the Building or any materials or equipment to be placed
upon the roof of the Building without the prior written consent of Landlord,
which will not unreasonably be withheld. At any time that any person goes upon
such roof or any material or equipment are placed upon such roof, Tenant shall
reasonably notify and allow Landlord or its agent to inspect the roof operation
or procedure. The structural portions of the Building for the purposes of this
Section 8.7 shall be deemed to include only the footings, foundation, roof,
structural steel, bearing walls, columns, joists, structural floors and
structural supports for the utility lines (but excluding the lines themselves)
of the Building. Any failure of Tenant to comply with the covenants and
agreements contained in this Section 8.7 which may directly or indirectly have
caused damage to the structural portions of the Building shall void the
covenants of Landlord set forth in this Section 8.7 as to the structural portion
which may have been so affected. Nothing in this Section 8.7 shall relieve
Tenant of any covenants or undertakings by it elsewhere contained in this Lease,
except as to the obligations of Landlord specifically provided for herein.
Tenant shall notify Landlord as soon as reasonably possible after becoming aware
of any defect for which Landlord might be liable herein in such time as to avoid
prejudice to Landlord. Any replacements or extraordinary repairs required to be
made by Landlord shall be promptly and diligently made. Anything herein to the
contrary notwithstanding, any uninsured structural damage requiring replacement
or extraordinary repair caused by Tenant, its agents, employees or invitees
shall be replaced by Tenant. Nothing in this Section 8.7 shall require Landlord
to repair, restore, replace or rebuild or otherwise be responsible for any of
Tenant's property, trade fixtures or property of any third party. Further, the
only structural portions which Landlord shall be obligated to replace or to make
extraordinary repairs shall be the structural portions constituting the
improvements originally delivered to Tenant upon commencement of the term of
this Lease or changes or alterations made by Landlord at Tenant's expense in
conformity with Article XIX hereof. Landlord reserves the right to enter upon
the Demised Premises for the purpose of making such replacements or
extraordinary repairs during regular business hours or otherwise and to
temporarily close doors, entryways, spaces and corridors and to interrupt or
temporarily suspend services and facilities of the Demised Premises; provided,
however, Landlord shall give Tenant reasonable advance notice of such entry
(written or oral) and shall use reasonable efforts to conduct its extraordinary
structural
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repair and replacement operations in the Demised Premises in such a manner so
as to minimize inconvenience to Tenant's business to the extent practical under
the circumstances. No entry in making any of such replacement shall be deemed
an eviction or disturbance of Tenant's use or possession, or otherwise or
relieve Tenant from any obligation herein set forth; provided, however,
Landlord shall give Tenant reasonable advance notice of such entry (written or
oral) and shall use reasonable efforts to conduct its extraordinary structural
repair and replacement operations in the Demised Premises in such a manner so
as to minimize inconvenience to Tenant's business to the extent practical under
the circumstances. Tenant shall take such action as clean-up or removal of its
property if such action is reasonably necessary in connection with the
replacement and extraordinary structure repair required herein to be performed
by Landlord.
ARTICLE IX
COMPLIANCE WITH LAWS AND ORDINANCES
Section 9.1 Compliance with Laws and Ordinances. Tenant shall,
throughout the term of this Lease, and at Tenant's sole cost and expense,
promptly comply or cause compliance with or remove or cure any violation of any
and all present and future laws, ordinances, orders, rules, regulations and
requirements (including without limitation the Act and the rules and
regulations promulgated thereunder) of all federal, state, municipal and other
governmental bodies having jurisdiction over the Demised Premises and the
appropriate departments, commissions, boards and officers thereof, and the
orders, rules and regulations of the Board of Fire Underwriters where the
Demised Premises are situated, or any other body now or hereafter constituted
exercising lawful or valid authority over the Demised Premises, or any portion
thereof, or the sidewalks, curbs, roadways, alleys, entrances or railroad track
facilities adjacent or appurtenant thereto, or exercising authority with
respect to the use or manner of use of the Demised Premises, or such adjacent
or appurtenant facilities, and whether the compliance, curing or removal of any
such violation and the costs and expenses necessitated thereby shall have been
foreseen or unforeseen, ordinary or extraordinary, and whether or not the same
shall be presently within the contemplation of Landlord or Tenant or shall
involve any change of governmental policy, or require structural or
extraordinary repairs, alterations or additions by Tenant and irrespective of
the costs thereof. Landlord represents that as of the date hereof, the Building
complies with the design guidelines attached to the Act as and to the extent
such design guidelines are applicable to the Building.
Anything in this Section 9.1 to the contrary notwithstanding, in the
event Tenant is required to install capital improvements in the Demised
Premises during the last twelve (12) months of the term of this Lease and such
improvements have a reasonable cost in excess of $25,000.00 (such excess cost
is hereinafter referred to as the "Excess Cost"), Tenant shall pay 100% of the
cost of such improvements other than the Excess Cost and the Excess Cost shall
be allocated between Landlord and Tenant in the following manner: Tenant shall
pay that portion of the Excess Cost equal to the Excess Cost multiplied by a
fraction, the numerator of which shall be the number of remaining months in the
term of this Lease and the denominator of which shall be the number of months
constituting the useful life of such improvement for tax purposes according to
generally accepted accounting principles consistently applied, and Landlord
shall pay the balance; provided, however, if such improvements are required
specifically because of the nature of the business of Tenant carried on in the
Demised Premises and would not be required for any other user occupying the
Demised Premises, Tenant shall pay all costs of such improvements.
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Section 9.2 Compliance with Permitted Encumbrances. Tenant, at its
sole cost and expense, shall comply with all agreements, contracts, easements,
restrictions, reservations or covenants, if any, set forth in Exhibit "A"
attached, or hereafter created by Tenant or consented to, in writing, by Tenant
or requested, in writing, by Tenant. Tenant shall also comply with, observe and
perform all provisions and requirements of all policies of insurance at any time
in force with respect to the Demised Premises and required to be obtained and
maintained under the terms of Article VI hereof and shall comply with all
development permits issued by governmental authorities issued in connection
with development of the Demised Premises.
Section 9.3 Tenant's Obligations. Notwithstanding that it may be
usual and customary for Landlord to assume responsibility and performance of
any or all of the obligations set forth in this Article IX, and notwithstanding
any order, rule or regulation directed to Landlord to perform, and except for
the one-year guaranty against defective materials and workmanship, Landlord's
undertaking to complete the incomplete items pursuant to Section 2.5 and
Landlord's structural replacement and extraordinary structural repair
obligations set forth in Section 8.7, Tenant hereby assumes such obligations
because, by nature of this Lease, the rents and income derived from this Lease
by Landlord are not rentals not to be diminished by any expense incident to the
ownership, occupancy, use, leasing, or possession of the Demised Premises or
any portion thereof.
Section 9.4 Tenant's Right to Contest Laws and Ordinances. After prior
written notice to Landlord, Tenant, at its sole cost and expense and without
cost or expense to Landlord, shall have the right to contest the validity or
application of any law or ordinance referred to in this Article IX in the name
of Tenant or Landlord, or both, by appropriate legal proceedings diligently
conducted but only if compliance with the terms of any such law or ordinance
pending the prosecution of any such proceeding may legally be delayed without
the incurrence of any lien, charge or liability of any kind against the Demised
Premises, or any portion thereof, and without subjecting Landlord or Tenant to
any liability, civil or criminal, for failure so to comply therewith until the
final determination of such proceeding; provided, however, if any lien, charge
or civil liability would be incurred by reason of any such delay, Tenant
nevertheless, on the prior written consent of Landlord, may contest as aforesaid
and delay as aforesaid provided that such delay would not subject Tenant or
Landlord to criminal liability and Tenant (a) furnishes Landlord security,
reasonably satisfactory to Landlord, against any loss or injury by reason of any
such contest or delay, (b) prosecutes the contest with due diligence and in good
faith, and (c) agrees to indemnify, defend and hold harmless Landlord and the
Demised Premises from any charge, liability or expense whatsoever. The security
furnished to Landlord by Tenant shall be in the form of a cash deposit or a
Certificate of Deposit issued by a national bank or federal savings and loan
association payable to Landlord. Said deposit shall be held, administered and
distributed in accordance with the provisions of Section 5.2 hereof relating to
the contest of the amount or validity of any Imposition.
If necessary or proper to permit Tenant so to contest the validity or
application of any such law or ordinance, Landlord shall, at Tenant's sole cost
and expense, including reasonable attorney's fees incurred by Landlord, execute
and deliver any appropriate papers or other documents; provided, Landlord shall
not be required to execute any document or consent to any proceeding which
would result in the imposition of any cost, charge, expense or penalty on
Landlord or the Demised Premises.
Section 9.5 Compliance with Hazardous Materials Laws. Tenant shall at
all times and in all respects comply with all federal, state and local laws,
ordinances and regulations
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("Hazardous Materials Laws") relating to the industrial hygiene, environmental
protection or the use, analysis, generation, manufacture, storage, presence,
disposal or transportation of any oil, petroleum products, flammable
explosives, asbestos, urea formaldehyde, polychlorinated biphenyls, radioactive
materials or waste, or other hazardous, toxic, contaminated or polluting
materials, substances or wastes, including without limitation any "hazardous
substances," "hazardous wastes," "hazardous materials" or "toxic substances"
under any such laws, ordinances or regulations (collectively, "Hazardous
Materials").
Tenant shall at its own expense procure, maintain in effect and comply
with all conditions of any and all permits, licenses and other governmental and
regulatory approvals required for Tenant's use of the Demised Premises,
including, without limitation, discharge of (appropriately treated) materials
or waste into or through any sanitary sewer system serving the Demised
Premises. Except as discharged into the sanitary sewer in strict accordance and
conformity with all applicable Hazardous Materials Laws, Tenant shall cause any
and all Hazardous Materials to be removed from the Demised Premises and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such Hazardous Materials and wastes. Tenant shall in all
respects, handle, treat, deal with and manage any and all Hazardous Materials
in, on, under or about the Demised Premises in complete conformity with all
applicable Hazardous Materials Laws and prudent industry practices regarding
the management of such Hazardous Materials. All reporting obligations to the
extent imposed upon Tenant by Hazardous Materials Laws are solely the
responsibility of Tenant. Upon expiration or earlier termination of this Lease,
Tenant shall cause all Hazardous Materials (to the extent such Hazardous
Materials are generated, stored, released or disposed of during the term of
this Lease by Tenant) to be removed from the Demised Premises and transported
for use, storage or disposal in accordance and in compliance with all
applicable Hazardous Materials Laws. Tenant shall not take any remedial action
in response to the presence of any Hazardous Materials in, on, about or under
the Demised Premises or in any Improvements situated on the Land, nor enter
into any settlement agreement, consent, decree or other compromise in respect
to any claims relating to any way connected with the Demised Premises or the
Landlord's Improvements on the Land without first notifying Landlord of
Tenant's intention to do so and affording Landlord ample opportunity to appear,
intervene or otherwise appropriately assert and protect Landlord's interest
with respect thereto. In addition, at Landlord's request, at the expiration of
the term of this Lease, Tenant shall remove all tanks or fixtures which were
placed on the Demised Premises during the term of this Lease and which contain,
have contained or are contaminated with, Hazardous Materials.
Tenant shall immediately notify Landlord in writing of (a) any
enforcement, clean-up, removal or other governmental or regulatory action
instituted, completed or threatened pursuant to any Hazardous Materials Laws;
(b) any claim made or threatened by any person against Landlord, or the Demised
Premises, relating to damage, contribution, cost recovery, compensation, loss
or injury resulting from or claimed to result from any Hazardous Materials; and
(c) any reports made to any environmental agency arising out of or in
connection with any Hazardous Materials in, on or about the Demised Premises or
with respect to any Hazardous Materials removed from the Demised Premises,
including, any complaints, notices, warnings, reports or asserted violations in
connection therewith. Tenant shall also provide to Landlord, as promptly as
possible, and in any event within five business days after Tenant first
receives or sends the same, with copies of all claims, reports, complaints,
notices, warnings or asserted violations relating in any way to the Demised
Premises or Tenant's use thereof. Upon written request of Landlord (to enable
Landlord to defend itself from any claim or charge related to any Hazardous
Materials Law) during the term of this Lease, Tenant shall promptly
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deliver to Landlord notices of hazardous waste manifests reflecting the legal
and proper disposal of all such Hazardous Materials removed or to be removed
from the Demised Premises. All such manifests shall list the Tenant or its
agent as a responsible party and in no way shall attribute responsibility for
any such Hazardous Materials to Landlord.
Section 9.6 Hazardous Materials Representation by Landlord. To
Landlord's knowledge, Landlord is not aware of any Hazardous Materials which
exist or are located on or in the Demised Premises. Further, Landlord
represents to Tenant that Landlord has not caused the generation, storage,
manufacture or release of Hazardous Materials upon the Demised Premises, except
in accordance with Hazardous Materials Laws.
Section 9.7 Cost of Compliance with Hazardous Materials Laws.
Provisions of Sections 9.5 and 9.6 notwithstanding, Tenant shall be responsible
only for that part of the cost of compliance with Hazardous Materials Laws
which relates to a breach by Tenant of the covenants contained in this Lease to
be kept and performed by Tenant, including but not limited to the covenants
contained in Section 9.5. Landlord shall be responsible only for that part of
the cost of compliance with Hazardous Materials Laws which relates to a breach
by Landlord of the covenants contained in this Lease, including but not limited
to the covenants contained in Section 9.6.
Section 9.8 Discovery of Hazardous Materials. In the event (a)
Hazardous Materials are discovered upon the Demised Premises, (b) Landlord has
been given written notice of the discovery of such Hazardous Materials (unless
Landlord is the discovering party), and (c) pursuant to the provisions of
Section 9.7, neither Landlord nor Tenant is obligated to pay the cost of
compliance with Hazardous Materials Laws, then and in that event Landlord may
voluntarily but shall not be obligated to agree with Tenant to take all action
necessary to bring the Demised Premises into compliance with Hazardous
Materials Laws at Landlord's sole cost. In the event Landlord fails to notify
Tenant in writing within 30 days of the notice to Landlord of the discovery of
such Hazardous Materials (or the date Landlord discovers the Hazardous
Materials if Landlord is the discovering party) that Landlord intends to
voluntarily take such action as is necessary to bring the Demised Premises into
compliance with Hazardous Materials Laws, then Tenant may, (i) bring the
Demised Premises into compliance with Hazardous Materials Laws at Tenant's sole
cost or (ii) provided such Hazardous Materials materially and adversely
interfere with Tenant's use of the Demised Premises, terminate the Lease on a
date not less than 90 days following written notice of such intent to terminate.
Section 9.9 Indemnification. Tenant shall indemnify, defend (with
counsel reasonably acceptable to Landlord), protect and hold Landlord and each
of Landlord's officers, directors, partners, employees, agents, attorneys,
successors and assigns free and harmless from and against any and all claims,
liabilities, damages, costs, penalties, forfeitures, losses or expenses
(including attorneys' fees) for death or injury to any person or damage to any
property whatsoever (including water tables and atmosphere) arising or
resulting in while or in part, directly or indirectly, from the presence or
discharge of Hazardous Materials, in, on, under, upon or from the Demised
Premises or the Improvements located thereon or from the transportation or
disposal of Hazardous Materials to or from the Demised Premises to the extent
any of the foregoing caused by Tenant whether knowingly or unknowingly, the
standard herein being one of strict liability. Tenant's obligations hereunder
shall include, without limitation, and whether foreseeable or unforeseeable, all
costs of any required or necessary repairs, clean-up or detoxification or
decontamination of the Demised Premises or the Improvements, and the presence
and implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration of
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or early termination of the term of this Lease. For purposes of the indemnity
provided herein, any acts or omissions of Tenant, or its employees, agents,
customers, sublessees, assignees, contractors or subcontractors of Tenant
(whether or not they are negligent, intentional, willful or unlawful) shall be
strictly negligent, intentional, willful or unlawful) shall be strictly
attributable to Tenant. Landlord shall indemnify and hold harmless Tenant and
each of Tenant's officers, directors, partners, agents, successors and assigns
free and harmless from and against the direct, out-of-pocket costs incurred by
Tenant (including reasonable attorneys' fees and court costs) to comply with
any court decision or enforcement action holding Tenant responsible for the
presence or discharge of Hazardous Materials in, on, under, upon or form the
Demised Premises or the improvements located thereon existing or occurring prior
to the commencement of the term of this Lease Agreement or from the
transportation or disposal of Hazardous Materials to or from the Demised
Premises occurring prior to the commencement of the term of this Lease
Agreement.
Section 9.10 Environmental Audits. Upon request by Landlord during the
term of this Lease, prior to the exercise of any renewal term and/or prior to
vacating the Demised Premises, Tenant shall undertake and submit to Landlord an
environmental audit from an environmental company reasonably acceptable to
Landlord which audit shall evidence Tenant's compliance with this Article IX.
Landlord shall bear the cost of such environmental audit unless such audit
discloses that Tenant has not complied with the provisions of this Article IX
in which event Tenant shall pay for such audit.
Section 9.11 Acts or Omissions Regarding Hazardous Materials. For
purposes of the convents and agreements contained in Sections 9.5 through
9.10, inclusive, any acts or omissions of Tenant, its employees, agents,
customers, sublessees, assignees, contractors or subcontractors (except Opus
North corporation, and its subcontractors providing the Landlord's
Improvements) shall be strictly attributable to Tenant; any acts or omissions
of Landlord, its employees, agents, customers, assignees, contractors or
subcontractors shall be strictly attributable to Landlord.
Section 9.12 Survival. The respective rights and obligations of
Landlord and Tenant under this Article IX shall survive the expiration or
earlier termination of this Lease.
ARTICLE X
MECHANIC'S LIENS AND OTHER LIENS
Section 10.1 Freedom from Liens. Tenant shall not suffer or permit any
mechanic's lien or other lien to be filed against the Demised Premises, or any
portion thereof, by reason of work, labor, skill, services, equipment or
materials supplied or claimed to have been supplied to the Demised Premises at
the request of Tenant, or anyone holding the Demised Premises, or any portion
thereof, through or under Tenant. If any such mechanic's lien or other lien
shall at any time be filed against the Demised Premises, or any portion thereof,
Tenant shall cause the same to be discharged of record within 30 days after the
date of filing the same. If Tenant shall fail to discharge such mechanic's lien
or liens or other lien within such period, then, in addition to any other right
or remedy of Landlord, after five days prior written notice to Tenant, Landlord
may, but shall not be obligated to, discharge the same by paying to the
claimant the amount claimed to be due or by procuring the discharge of such
lien as to the Demised Premises by deposit in the court having jurisdiction of
such lien, the foreclosure thereof or other proceedings with respect thereto,
of a cash sum sufficient to secure the discharge of the same, or by the deposit
of a bond or other security with such court sufficient in form, content and
amount to procure the discharge of such lien, or in such other manner as is now
or may in the future be provided by present or future law for the discharge of
such lien as a lien against the Demised Premises. Any amount paid by Landlord,
or the
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value of any deposit so made by Landlord, together with all costs, fees and
expenses in connection therewith (including reasonable attorney's fees of
Landlord), together with interest thereon at the Maximum Rate of Interest set
forth in Section 3.4 hereof, shall be repaid by Tenant to Landlord on demand by
Landlord and if unpaid may be treated as Additional Rent. Tenant shall
indemnify and defend Landlord against and save Landlord and the Demised
Premises, and any portion thereof, harmless from all losses, costs, damages,
expenses, liabilities, suits, penalties, claims, demands and obligations,
including, without limitation, reasonable attorney's fees resulting from the
assertion, filing, foreclosure or other legal proceedings with respect to any
such mechanic's lien or other lien.
All materialmen, contractors, artisans, mechanics, laborers and any
other person now or hereafter furnishing any labor, services, materials,
supplies or equipment to Tenant with respect to the Demised Premises, or any
portion thereof, are hereby charged with notice that they must look exclusively
to Tenant to obtain payment for the same. Notice is hereby given that Landlord
shall not be liable for any labor, services, materials, supplies, skill,
machinery, fixtures or equipment furnished or to be furnished to Tenant upon
credit, and that no mechanic's lien or other lien for any such labor, services,
materials, supplies, machinery, fixtures or equipment shall attach to or affect
the estate or interest of Landlord in and to the Demised Premises, or any
portion thereof.
Section 10.2 Landlord's Indemnification. The provisions of Section 10.1
above shall not apply to any mechanic's lien or other lien for labor, services,
materials, supplies, machinery, fixtures or equipment furnished to the Demised
Premises in the performance of Landlord's obligations to construct the
Landlord's Improvements required by the provisions of Article II hereof, and
Landlord does hereby agree to indemnify and defend Tenant against and save
Tenant and the Demised Premises, and any portion thereof, harmless from all
losses, costs, damages, expenses, liabilities and obligations, including,
without limitation, reasonable attorney's fees resulting from the assertion,
filing, foreclosure or other legal proceedings with respect to any such
mechanic's lien or other lien.
Section 10.3 Removal of Liens. Except as otherwise provided for in
this Article X, Tenant shall not create, permit or suffer, and shall promptly
discharge and satisfy of record, any other lien, encumbrance, charge, security
interest, or other right or interest which shall be or become a lien,
encumbrance, charge or security interest upon the Demised Premises, or any
portion thereof, or the income therefrom, or on the interest of Landlord or
Tenant in the Demised Premises, or any portion thereof, save and except for
those liens, encumbrances, charges, security interests, or other rights or
interests consented to, in writing, by Landlord, or those mortgages,
assignments of rents, assignments of leases and other mortgage documentation
placed thereon by Landlord in financing or refinancing the Demised Premises, or
arising by or under Landlord but not by or under Tenant.
Section 10.4 In the event no statutory procedure exists for the
discharge of mechanic's liens of record, and in the event Tenant in good faith
desires to contest the validity or amount of any mechanic's lien or lien
referred to in the foregoing provisions of this Article X, Tenant shall have
the right to contest the validity or amount of any such mechanic's lien or any
lien referred to in the foregoing provisions of this Article X, provided that
Tenant deposits with Landlord cash or a Certificate of Deposit or other
security reasonably acceptable to Landlord in an amount equal to one hundred
twenty percent (120%) of the amount of said lien and otherwise provides
Landlord reasonable security against loss and damage because of the mechanic's
lien or such proceeding. Such certificate of deposit shall be issued by a
national bank or a federal savings and loan association. If Tenant deposits
cash, Landlord shall deposit same in an interest bearing account with a
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national bank, savings and loan association, or in securities of the United
States of America. Such deposit shall be held, administered and distributed in
accordance with the provisions of Section 5.2 hereof relating to the contest of
the amount or validity of an Imposition.
ARTICLE XI
INTENT OF PARTIES
Section 11.1 Net Lease. Landlord and Tenant do each state and
represent that except as otherwise expressly provided herein, it is the
intention of each of them that this Lease be interpreted and construed as an
absolute net lease and all Basic Rent and Additional Rent shall be paid by
Tenant to Landlord without abatement, deduction, diminution, deferment,
suspension, reduction or setoff, and the obligations of Tenant shall not be
affected by reason of damage to or destruction of the Demised Premises from
whatever cause (except as provided for in Section 13.6 hereof); nor shall the
obligations of Tenant be affected by reason of any condemnation, eminent domain
or like proceedings (except as provided in Article XIV hereof); nor shall the
obligations of Tenant be affected by reason of any other cause whether similar
or dissimilar to the foregoing or by any laws or customs to the contrary. It is
the further express intent of Landlord and Tenant that (a) the obligations of
Landlord and Tenant hereunder shall be separate and independent covenants and
agreements and that the Basic Rent and Additional Rent, and all other charges
and sums payable by Tenant hereunder, shall commence at the times provided
herein and shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to an express provision in this
Lease; (b) all costs or expenses of whatsoever character or kind, general or
special, ordinary or extraordinary, foreseen or unforeseen, and of every kind
and nature whatsoever that may be necessary or required in and about the
Demised Premises, or any portion thereof, and Tenant's possession or authorized
use thereof during the term of this Lease, shall be paid by Tenant and all
provisions of this Lease are to be interpreted and construed in light of the
intention expressed in this Section 11.1; (c) the Basic Rent specified in
Section 3.1 shall be absolutely net to Landlord so that this Lease shall yield
net to Landlord the Basic Rent specified in Section 3.1 in each year during the
term of this Lease (unless extended or renewed at a different Basic Rent); (d)
all Impositions, insurance premiums, utility expense, repair and maintenance
expense, and all other costs, fees, interest, charges, expenses, reimbursements
and obligations of every kind and nature whatsoever relating to the Demised
Premises, or any portion thereof, which may arise or become due during the term
of this Lease, or any extension or renewal thereof, shall be paid or discharged
by Tenant as Additional Rent; and (e) Tenant hereby agrees to indemnify, defend
and save Landlord harmless from and against such costs, fees, charges,
expenses, reimbursements and obligations, and any interest thereon.
Section 11.2 Entry by Landlord. If Tenant shall at any time fail to
pay any Imposition in accordance with the provisions of Article V, or to take
out, pay for, maintain and deliver any of the insurance policies or
certificates of insurance provided for in Article VI, or shall fail to make any
other payment or perform any other act on its part to be made or performed,
then Landlord, after prior written notice to Tenant as provided in Section 12.1
(or without notice in case of emergency), and without waiving or releasing
Tenant from any obligation of Tenant contained in this Lease, may, but shall be
under no obligation to do so, (a) pay any Imposition payable by Tenant pursuant
to the provisions of Article V; (b) take out, pay for and maintain any of the
insurance policies provided for in this Lease; or (c) make any other payment or
perform any other act on Tenant's part to be paid or performed as in this Lease
provided, and Landlord may enter upon the Demised Premises for any such purpose
and take all such action therein or
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thereon as may be necessary therefor. Nothing herein contained shall be deemed
as a waiver or release of Tenant from any obligation of Tenant in this Lease
contained.
Section 11.3 Interest on Unpaid Amounts. If Tenant shall fail to
perform any act required of it, Landlord may perform the same, but shall not be
required to do so, in such manner and to such extent as Landlord may deem
necessary or desirable, and in exercising any such right to employ counsel and
to pay necessary and incidental costs and expenses, including reasonable
attorney's fees. All sums so paid by Landlord and all necessary and incidental
costs and expenses, including reasonable attorney's fees, in connection with
the performance of any such act by Landlord, together with interest thereon at
the Maximum Rate of Interest provided for in Section 3.4 hereof from the date
of making such expenditure by Landlord, shall be deemed Additional Rent
hereunder and, except as is otherwise expressly provided herein, shall be
payable to Landlord on demand or, at the option of Landlord, may be added to
any monthly rental then due or thereafter becoming due under this Lease, and
Tenant covenants to pay any such sum or sums, with interest as aforesaid, and
Landlord shall have, in addition to any other right or remedy of Landlord, the
same rights and remedies in the event of nonpayment thereof by Tenant as in the
case of default by Tenant in the payment of monthly Basic Rent. Landlord shall
not be limited in the proof of any damages which Landlord may claim against
Tenant arising out of or by reason of Tenant's failure to provide and keep in
force insurance as aforesaid, to the amount of the insurance premium or
premiums not paid or not incurred by Tenant, and which would have been payable
upon such insurance, but Landlord shall also be entitled to recover as damages
for such breach the uninsured amount of any loss (to the extent of any
deficiency between the dollar limits of insurance required by the provisions of
this Lease and the dollar limits of the insurance actually carried by Tenant),
damages, costs and expenses of suit, including reasonable attorney's fees,
suffered or incurred by reason of damage to or destruction of the Demised
Premises, or any portion thereof or other damages or loss which Tenant is
required to insure against hereunder, occurring during any period when Tenant
shall have failed or neglected to provide insurance as aforesaid.
ARTICLE XII
DEFAULTS OF TENANT
Section 12.1 Event of Default. If any one or more of the following
events (in this Article sometimes called "Events of Default") shall happen:
(a) If default shall be made by Tenant, by operation of law or
otherwise, under the provisions of Article XV hereof relating to
assignment, sublease, mortgage or other transfer of Tenant's
interest in this Lease or in the Demised Premises or in the income
arising therefrom;
(b) If default shall be made in the due and punctual payment of any
Basic Rent or Additional Rent payable under this Lease or in the
payment of any obligation to be paid by Tenant, when and as the same
shall become due and payable, and such default shall continue for a
period of ten days after written notice thereof given by Landlord to
Tenant;
(c) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than
those referred to in Subparagraphs (a) and (b) of this Section 12.1,
which does not expose Landlord to criminal liability, and such
default shall continue for a period of 30 days after written notice
thereof given
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by Landlord to Tenant, or in the case of such a default or
contingency which cannot with due diligence and in good faith be
cured within 30 days, and Tenant fails to proceed promptly and with
due diligence and in good faith to cure the same and thereafter to
prosecute the curing of such default with due diligence and in good
faith, it being intended that in connection with a default which
does not expose Landlord to criminal liability not susceptible of
being cured with due diligence and in good faith within 30 days,
that the time allowed Tenant within which to cure the same shall be
extended for such period as may be necessary for the curing thereof
promptly with due diligence and in good faith;
(d) If default shall be made by Tenant in keeping, observing or
performing any of the terms contained in this Lease, other than
those referred to in Subparagraphs (a), (b) and (c) of this Section
12.1, and which exposes Landlord to criminal liability, and such
default shall continue after written notice thereof given by
Landlord to Tenant, and Tenant fails to proceed timely and promptly
with all due diligence and in good faith to cure the same and
thereafter to prosecute the curing of such default with all due
diligence, it being intended that in connection with a default
which exposes Landlord to criminal liability that Tenant shall
proceed immediately to cure or correct such condition with
continuity and with all due diligence and in good faith;
then, and in any such event, Landlord, at any time thereafter during the
continuance of any such Event of Default, may give written notice to Tenant
specifying such Event of Default or Events of Default and stating that this
Lease and the terms hereby demised shall expire and terminate on the date
specified in such notice, and upon the date specified in such notice this Lease
and the terms hereby demised, and all rights of Tenant under this Lease,
including all rights of renewal whether exercised or not, shall expire and
terminate, or in the alternative or in addition to the foregoing remedy,
Landlord may assert and have the benefit of any other remedy allowed herein, at
law, or in equity.
Section 12.2 Surrender of Demised Premises. Upon any expiration or
termination of this Lease, Tenant shall quit and peaceably surrender the
Demised Premises, and all portions thereof, to Landlord, and Landlord, upon or
at any time after any such expiration or termination, may, without further
notice, enter upon and reenter the Demised Premises, and all portions thereof,
and possess and repossess itself thereof, by force, summary proceeding,
ejectment or otherwise, and may dispossess Tenant and remove Tenant and all
other persons and property from the Demised Premises, and all portions thereof,
and may have, hold and enjoy the Demised Premises and the right to receive all
rental and other income of and from the same.
Section 12.3 Reletting by Landlord. At any time, or from time to time
after any such expiration or termination, Landlord may relet the Demised
Premises, or any portion thereof, in the name of Landlord or otherwise, for
such term or terms (which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease) and on such
conditions (which may include concessions or free rent) as Landlord, in its
uncontrolled discretion, may determine and may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Demised Premises, or any part thereof, or for any failure to collect
any rent due upon any such reletting.
Section 12.4 Survival of Tenant's Obligations. No such expiration or
termination of this lease shall relieve Tenant of its liabilities and
obligations under this Lease (as if this Lease had
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not been so terminated or expired), and such liabilities and obligations shall
survive any such expiration or termination. In the event of any such expiration
or termination, whether or not the Demised premises, or any portion thereof,
shall have been relet, Tenant shall pay to Landlord a sum equal to the Basic
Rent, and the Additional Rent and any other charges required to be paid by
Tenant, up to the time of such expiration or termination of this Lease, and
thereafter Tenant, until the end of what would have been the term of this Lease
in the absence of such expiration or termination, shall be liable to Landlord
for, and shall pay to Landlord, as and for liquidated and agreed current
damages for Tenant's default:
(a) The equivalent of the amount of the Basic Rent and Additional
Rent which would be payable under this Lease by Tenant if this
Lease were still in effect, less
(b) The net proceeds of any reletting effected pursuant to the
provisions of Section 12.3 hereof after deducting all of
Landlord's reasonable expenses in connection with such
reletting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, reasonable
attorney's fees, alteration costs, and expenses of preparation
of the Demised Premises, or any portion thereof, for such
reletting.
Tenant shall pay such current damages in the amount determined in
accordance with the terms of this Section 12.4, as set forth in a written
statement thereof from Landlord to Tenant (hereinafter called the
"Deficiency"), to Landlord in monthly installments on the days on which the
Basic Rent would have been payable under this Lease if this Lease were still in
effect, and Landlord shall be entitled to recover from Tenant each monthly
installment of the Deficiency as the same shall arise.
Section 12.5 Damages. At any time after an Event of Default and
termination of this Lease, whether or not Landlord shall have collected any
monthly Deficiency as set forth in Section 12.4, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, on demand, as and for
final damages for Tenant's default, an amount equal to the difference between
the then present worth of the aggregate of the Basic Rent and Additional Rent
and any other charges to be paid by Tenant hereunder which have not previously
been satisfied by Tenant by payment of the Deficiency or otherwise for the
unexpired portion of the term of this Lease (measured from the period covered
by Tenant's last payment of monthly Basic Rent or the monthly Deficiency
corresponding thereto and assuming this Lease had not been so terminated), and
the then present worth of the then aggregate fair and reasonable fair market
rent of the Demised Promises for the same period. In the computation of present
worth, a discount at the rate of 6% per annum shall be employed. If the Demised
Premises, or any portion thereof, be relet by Landlord for the unexpired term
of this Lease, or any part thereof, before presentation of proof of such
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall, prima facie, be the fair and reasonable fair market rent
for the part or the whole of the Demised Premises so relet during the term of
the reletting. Northing herein contained or contained in Section 12.4 shall
limit or prejudice the right of Landlord to prove for and obtain, as damages by
reason of such expiration or termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to or less than the amount of the difference referred
to above.
Section 12.6 No waiver. No failure by Landlord or by Tenant to insist
upon the performance of any of the terms of this Lease or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance by Landlord of
full or partial rent from
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Tenant or any third party during the continuance of any such breach, shall
constitute a waiver of any such breach or of any of the terms of this Lease.
None of the terms of this Lease to be kept, observed or performed by Landlord
or by Tenant, and no breach thereof, shall be waived, altered or modified
except by a written instrument executed by Landlord and/or by Tenant, as the
case may be. No waiver of any breach shall affect or alter this Lease, but each
of the terms of this Lease shall continue in full force and effect with respect
to any other then existing or subsequent breach of this Lease. No waiver of any
default of Tenant herein shall be implied from any omission by Landlord to take
any action on account of such default, if such default persists or is repeated
and no express waiver shall affect any default other than the default specified
in the express waiver and that only for the time and to the extent therein
stated. One or more waivers by Landlord shall not be construed as a waiver of a
subsequent breach of the same covenant, term or condition.
Section 12.7 Landlord's Remedies. In the event of any breach or
threatened breach by Tenant of any of the terms contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right or remedy allowed at law or in equity or by
statute or otherwise as though entry, reentry, summary proceedings and other
remedies were not provided for in this Lease. Each remedy or right of Landlord
provided for in this Lease shall be cumulative and shall be in addition to
every other right or remedy provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise, and the exercise or
the beginning of the exercise by Landlord of any one or more of such rights or
remedies shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies.
Section 12.8 Bankruptcy. If, during the term of this Lease, (a)
Tenant shall make an assignment for the benefit of creditors, (b) a voluntary
petition be filed by Tenant under any law having for its purpose the
adjudication of Tenant a bankrupt, or Tenant be adjudged a bankrupt pursuant to
an involuntary petition in bankruptcy, (c) a receiver be appointed for the
property of Tenant, or (d) any department of the state or federal government,
or any officer thereof duly authorized, shall take possession of the business
or property of Tenant, the occurrence of any such contingency shall be deemed a
breach of the Lease and this Lease shall, ipso facto upon the happening of any
of said contingencies, be terminated and the same shall expire as fully and
completely as if the day of the happening of such contingency were the date
herein specifically fixed for the expiration of the term, and Tenant will then
quit and surrender the Demised Premises, but Tenant shall remain liable as
hereinafter provided. Notwithstanding other provisions of this Lease, or any
present or future law, Landlord shall be entitled to recover from Tenant or
Tenant's estate (in lieu of the equivalent of the amount of all rent and other
charges unpaid at the date of such termination) as damages for loss of the
bargain and not as a penalty, an aggregate sum which at the time of such
termination represents the difference between the then present worth of the
aggregate of the Basic Rent and Additional Rent and any other charges payable
by Tenant hereunder that would have accrued for the balance of the term of this
Lease (assuming this Lease had not been so terminated), over the then present
worth of the aggregate fair market rent of the Demised Premises for the balance
of such period, unless any statute or rule of law covering the proceedings in
which such damages are to be proved shall limit the amount of such claim
capable of being so proved, in which case Landlord shall be entitled to prove
as and for damages by reason of such breach and termination of this Lease the
maximum amount which may be allowed by or under any such statute or rule of law
without prejudice to any rights of Landlord against any guarantor of Tenant's
obligations herein. In the computation of present worth, a discount rate of 6%
per annum shall be employed. Nothing contained herein shall limit or prejudice
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Landlord's right to prove and obtain as damages arising out of such breach and
termination of the maximum amount allowed by any such statute or rule of law
which may govern the proceedings in which such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of the
excess of the present value of the rent and other charges required herein over
the present value of the fair market rents referred to above. Specified
remedies to which Landlord may resort under the terms of this Section 12.8 are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may be lawfully entitled.
Section 12.9 Waiver by Tenant. Tenant hereby expressly waives, so far as
permitted by law, any and all right of redemption or reentry or repossession or
to revive the validity and existence of this Lease in the event that Tenant
shall be dispossessed by a judgment or by order of any court having
jurisdiction over the Demised Premises or the interpretation of this Lease or
in case of entry, reentry or repossession by Landlord or in case of any
expiration or termination of this Lease.
ARTICLE XIII
DESTRUCTION AND RESTORATION
Section 13.1 Destruction and Restoration. Tenant covenants and agrees
that in case of damage to or destruction of the Improvements after the
Commencement Date of the term of this Lease, by fire or otherwise, Tenant, at
its sole cost and expense, shall promptly restore, repair, replace and rebuild
the same as nearly as possible to the condition that the same were in
immediately prior to such damage or destruction with such changes or
alterations (made in conformity with Article XIX hereof) as may be reasonably
acceptable to Landlord or required by law. Tenant shall forthwith give Landlord
written notice of such damage or destruction upon the occurrence thereof and
specify in such notice, in reasonable detail, the extent thereof. Such
restoration, repairs, replacements, rebuilding, changes and alternations,
including the cost of temporary repairs for the protection of the Demised
Premises, or any portion thereof, pending completion thereof are sometimes
hereinafter referred to as the "Restoration." The Restoration shall be carried
on and completed in accordance with the provisions and conditions of Section
13.2 and Article XIX hereof. If the net amount of the insurance proceeds (after
deduction of all costs, expenses and fees related to recovery of the insurance
proceeds) recovered by Landlord and held by Landlord and Tenant as co-trustees
is reasonably deemed insufficient by Landlord to complete the Restoration of
such improvements (exclusive of Tenant's personal property and trade fixtures
which shall be restored, repaired or rebuilt out of Tenant's separate funds),
Tenant shall, upon request of Landlord, deposit with Landlord and Tenant, as
co-trustees a cash deposit equal to the reasonable estimate of the amount
necessary to complete the Restoration of such improvements less the amount of
such insurance proceeds available.
Section 13.2 Application of Insurance Proceeds. All insurance moneys
recovered by Landlord and held by Landlord and Tenant as co-trustees on account
of such damage or destruction, less the costs, if any, to Landlord and Tenant
of such recovery, shall be applied to the payment of the costs of the
Restoration and shall be paid out from time to time as the Restoration
progresses upon the written request of Tenant, accompanied by a certificate of
the architect or a qualified professional engineer in charge of the Restoration
stating that as of the date of such certificate (a) the sum requested is justly
due to the contractors, subcontractors, materialmen, laborers, engineers,
architects, or persons, firms or corporations furnishing or supplying work,
labor, services or materials for such Restoration, or is justly required to
reimburse Tenant for any expenditures made by Tenant in connection with such
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Restoration, and when added to all sums previously paid out by Landlord does
not exceed the value of the Restoration performed to the date of such
certificate by all of said parties; (b) except for the amount, if any, stated
in such certificates to be due for work, labor, services or materials, there is
no outstanding indebtedness known to the person signing such certificate, after
due inquiry, which is then due for work, labor, services or materials in
connection with such Restoration, which, if unpaid, might become the basis of a
mechanic's lien or similar lien with respect to the Restoration or a lien upon
the Demised Premises, or any portion thereof; and (c) the costs, as estimated
by the person signing such certificate, of the completion of the Restoration
required to be done subsequent to the date of such certificate in order to
complete the Restoration do not exceed the sum of the remaining insurance
moneys, plus the amount deposited by Tenant, if any, remaining in the hands of
Landlord after payment of the sum requested in such certificate.
Tenant shall furnish Landlord at the time of any such payment with
evidence reasonably satisfactory to Landlord that there are no unpaid bills in
respect to any work, labor, services or materials performed, furnished or
supplied in connection with such Restoration. Landlord and Tenant as
co-trustees shall not be required to pay out any insurance moneys where Tenant
fails to supply satisfactory evidence of the payment of work, labor, services
or materials performed, furnished or supplied, as aforesaid. If the insurance
moneys in the hands of Landlord and Tenant as co-trustees, and such other sums,
if any, deposited with Landlord and Tenant as co-trustees pursuant to Section
13.1 hereof, shall be insufficient to pay the entire costs of the Restoration,
Tenant agrees to pay any deficiency promptly upon demand. Upon completion of
the Restoration and payment in full thereof by Tenant, Landlord shall within a
reasonable period of time thereafter, turn over to Tenant all insurance moneys
or other moneys then remaining upon submission of proof reasonably satisfactory
to Landlord that the Restoration has been paid for in full and the damaged or
destroyed Building and other improvements repaired, restored or rebuilt as
nearly as possible to the condition they were in immediately prior to such
damage or destruction, or with such changes or alterations as may be made in
conformity with Section 13.1 and Article XIX hereof.
Section 13.3 Continuance of Tenant's Obligations. Except as provided
for in Section 13.6, no destruction of or damage to the Demised Premises, or
any portion thereof, by fire, casualty or otherwise shall permit Tenant to
surrender this Lease or shall relieve Tenant from its liability to pay to
Landlord the Basic Rent and Additional Rent payable under this Lease or from
any of its other obligations under this Lease, and Tenant waives any rights now
or hereafter conferred upon Tenant by present or future law or otherwise to
quit or surrender this Lease or the Demised Premises, or any portion thereof,
to Landlord or to any suspension, diminution, abatement or reduction of rent on
account of any such damage or destruction.
Section 13.4 Availability of Insurance Proceeds. To the extent that
any insurance moneys which would otherwise be payable to Landlord and used in
the Restoration of the damaged or destroyed improvements are paid to any
mortgagee of Landlord and applied in payment of or reduction of the sum or sums
secured by any such mortgage or mortgages made by Landlord on the Demised
Premises, Landlord may make available, for the purpose of Restoration of such
improvements, an amount equal to the amount payable to its mortgage out of such
proceeds and in such event, such sum shall be applied in the manner provided in
Section 13.2 hereof. To the extent insurance moneys which otherwise would be
available for Restoration are applied in payment or reduction of the sum(s)
secured by any mortgage and Landlord does not make available an amount for
Restoration, this Lease shall terminate as of the date that the insurance
moneys are applied to reduce or pay the sum(s)
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secured by such mortgage.
Section 13.5 Completion of Restoration. The foregoing provisions of
this Article XIII apply only to damage or destruction of the Improvements by
fire, casualty or other cause occurring after the Commencement Date. Any such
damage or destruction occurring prior to such time shall be restored, repaired,
replaced and rebuilt by Landlord and during such period of construction
Landlord shall obtain and maintain the builder's risk insurance coverage
referred to in Section 6.1 hereof. All moneys received by Landlord under its
builder's risk insurance coverage shall be applied by Landlord to complete the
Restoration of such damage or destruction and if such insurance proceeds are
insufficient Landlord shall provide all additional funds necessary to complete
the Restoration of the Improvements.
Section 13.6 Termination of Lease. If, within twelve (12) months
prior to the expiration of the term of this Lease, the Improvements shall be
destroyed or damaged to such an extent that, Tenant cannot conduct its business
in the Demised Premises during the remainder of the term of the Lease, Tenant,
by notice in writing delivered to Landlord within thirty (30) days from the
date of such damage or destruction, may terminate this Lease. Upon the giving
of such notice and the payment of the amounts specified below, the term of this
Lease shall cease and come to an end on a day to be specified in Tenant's
notice, which date shall not be more than 30 days after the date of delivery of
such notice by Tenant to Landlord. Tenant shall accompany such notice with its
payment of all Basic Rent and Additional Rent reserved for the balance of the
term of the Lease (assuming the Lease had not been so terminated) and other
charges payable by Tenant hereunder, justly apportioned to the date of such
termination that are not paid to Landlord under the rent loss insurance policy
required to be maintained for Landlord's benefit in accordance with the
provisions of Section 6.8 hereof, together with the dollar amount of Landlord's
reasonable estimate of the difference, if any, between the cost of the
Restoration and the amount of net insurance proceeds to be made available for
the Restoration. In such event Landlord shall be entitled to the proceeds of
all insurance required to be carried by Tenant hereunder and Tenant shall
execute all documents reasonably requested by Landlord to allow such proceeds
to be paid to Landlord.
ARTICLE XIV
CONDEMNATION
Section 14.1 Condemnation of Entire Demised Premises. If, during the
term of this Lease, the entire Demised Premises shall be taken as the result of
the exercise of the power of eminent domain (hereinafter referred to as the
"Proceedings"), this Lease and all right, title and interest of Tenant
hereunder shall cease and come to an end on the date of vesting of title
pursuant to such Proceedings and Landlord shall be entitled to and shall
receive the total award made in such Proceedings, Tenant hereby assigning any
interest in such award, damages, consequential damages and compensation to
Landlord and Tenant hereby waiving any right Tenant has now or may have under
present or future law to receive any separate award of damages for its interest
in the Demised Premises, or any portion thereof, or its interest in this Lease.
In any taking of the Demised Premises, or any portion thereof, whether
or not this Lease is terminated as in this Article provided, Tenant shall not
be entitled to any portion of the award for the taking of the Demised Premises
or damage to the Improvements, except as otherwise provided for in Section 14.3
with respect to the restoration of the Improvements, or for the estate or
interest of Tenant therein, all such award, damages, consequential damages and
compensation being hereby assigned to Landlord, and Tenant hereby waives any
right it now has or may have
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under present or future law to receive any separate award of damages for its
interest in the Demised Premises, or any portion thereof, or its interest in
this Lease, except that Tenant shall have, nevertheless, the limited right to
prive in the Proceedings and to receive any award which may be made for damages
to or condemnation of Tenant's movable trade fixtures and equipment, and for
Tenant's relocation costs in connection therewith.
Section 14.2 Partial Condemnation/Termination of Lease. If, during the
Initial Term of this Lease, or any extension or renewal thereof, less than the
entire Demised Premises, but more than 15% of the floor area of the Building,
or more than 25% of the land area of the Demised Premises, shall be taken in
any such Proceedings, this Lease shall, upon vesting of title in the
Proceedings, terminate as to the portion of the Demised Premises so taken, and
Tenant may, at its option, terminate this Lease as to the remainder of the
Demised Premises. Tenant shall not have the right to terminate this Lease
pursuant to the preceding of the Demised Premises taken cannot reasonably be
carried on with substantially the same utility and efficiency in the remainder
of the Demised Premises (or any substitute space securable by Tenant pursuant
to clause (b) hereof) and (b) Tenant cannot construct or secure substantially
similar space to the space so taken, on the Demised Premises. Such termination
as to the remainder of the Demised Premises shall be effected by notice in
writing given not more than 60 days after the date of vesting of title in such
Proceedings, and shall specify a date not more than 60 days after the giving of
such notice as the date for such termination. Upon the date specified in such
notice, the term of this Lease, and all right, title and interest of Tenant
hereunder, shall cease and come to an end. If this Lease is terminated as in
this Section 14.2 provided, Landlord shall be entitled to and shall receive the
total award made in such Proceedings, Tenant hereby assigning any interest in
such award, damages, consequential damages and compensation to Landlord, and
Tenant hereby waiving any right Tenant has now or may have under present or
future law to receive any separate award of damages for its interest in the
Demised Premises, or any portion thereof, or its interest in this Lease except
as otherwise provided in Section 14.1 and Section 14.6. The right of Tenant to
terminate this Lease, as in this Section 14.2 provided, shall be exercisable
only upon condition that Tenant is not then in default in the performance of
any of the terms, convenants or conditions of this Lease on its part to be
performed, and such termination upon Tenant's part shall become effective only
upon compliance by Tenant with all such terms, convenats and conditions to the
date of such termination. In the event that Tenant elects not to terminate this
Lease as to the remainder of the Demised Premises, the rights and obligations
of Landlord and Tenant shall be governed by the provisions of Section 14.3
hereof.
Section 14.3 Partial Condemnation/Continuation of Lease. If 15%, or
less, of the floor area of the Building, or 25%, or less, of the land area of
the Demised Premises, shall be taken in such Proceedings, or if more than 15% of
the floor area of the Building or more than 25% of the land area of the Demised
Premises is taken (but less than the entire Demised Premises), and this Lease is
not terminated as in Section 14.2 hereof provided, this Lease shall, upon
vesting of title in the Proceedings, terminate as to the parts so taken, and
Tenant shall have no claim or interest in the award, damages, consequential
damages and compensation, or any part thereof except as otherwise provided in
Section 14.1. Landlord shall be entitled to and shall receive the total award
made in such Proceedings, Tenant hereby assigning any interest in such award,
damages, consequential damages and compensation to Landlord, and Tenant hereby
waiving any right Tenant has now or may have under present or future law to
receive any separate award of damages for its interest in the Demised Premises,
or any portion thereof, or its interest in this Lease except as otherwise
provided in Section 14.1. The net amount of the award after deduction of all
costs
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and expenses, including attorney's fees), shall be held by Landlord and Tenant
as co-trustees and applied as hereinafter provided. Tenant, in such case,
covenants and agrees, at Tenant's sole cost and expense (subject to
reimbursement to the extent hereinafter provided), promptly to restore that
portion of the Improvements on the Demised Premises not so taken to a complete
architectural and mechanical unit for the use and occupancy of Tenant as in
this Lease provided. In the event that the net amount of the award (after
deduction of all costs and expenses, including attorney's fees) that may be
received by Landlord and held by Landlord and Tenant as co-trustees in any such
Proceedings for physical damage to the Improvements as a result of such taking
is insufficient to pay all costs of such restoration work, Tenant shall deposit
with Landlord and Tenant as co-trustees such additional sum as may be required
upon the written request of Landlord. The provisions and conditions in Article
XIX applicable to changes and alterations shall apply to Tenant's obligations
to restore that portion of the Improvements to a complete architectural and
mechanical unit. Landlord and Tenant as co-trustees agree in connection with
such restoration work to apply so much of the net amount of any award (after
deduction of all costs and expenses, including attorney's fees) that may be
received by Landlord and held by Landlord and Tenant as co-trustees in any such
Proceedings for damage to the Improvements as a result of such taking to the
costs of such restoration work thereof and the said net award for damage to the
Improvements as a result of such taking shall be paid out from time to time to
Tenant, or on behalf of Tenant, as such restoration work progresses upon the
written request of Tenant, which shall be accompanied by a certificate of the
architect or the registered professional engineer in charge of the restoration
work stating that (a) the sum requested is justly due to the contractors,
subcontractors, materialmen, laborers, engineers, architects or other persons,
firms or corporations furnishing or supplying work, labor, services or
materials for such restoration work or as is justly required to reimburse
Tenant for expenditures made by Tenant in connection with such restoration
work, and when added to all sums previously paid out by Landlord and Tenant as
co-trustees does not exceed the value of the restoration work performed to the
date of such certificate; and (b) the net amount of any such award for damage
to the Improvements as a result of such taking remaining in the hands of
Landlord, together with the sums, if any, deposited by Tenant with Landlord and
Tenant as co-trustees pursuant to the provisions hereof, will be sufficient
upon the completion of such restoration work to pay for the same in full. If
payment of the award for damage to the Improvements as a result of such taking,
as aforesaid, shall not be received by Landlord in time to permit payments as
the restoration work progresses (except in the event of an appeal of the award
by Landlord), Tenant shall, nevertheless, perform and fully pay for such work
without delay (except such delays as are referred to in Article XIX hereof),
and payment of the amount to which Tenant may be entitled shall thereafter be
made by Landlord out of the net award for damage to the Improvements as a
result of such taking as and when payment of such award is received by
Landlord. If Landlord appeals an award and payment of the award is delayed
pending appeal Tenant shall, nevertheless, perform and fully pay for such work
without delay (except such delays as are referred to in Article XIX hereof), and
payment of the amount to which Tenant would have been entitled had Landlord not
appealed the award (in an amount not to exceed the net award prior to such
appeal) shall be made by Landlord to Tenant as restoration progresses pursuant
to this Section 14.3, in which event Landlord shall be entitled to retain an
amount equal to the sum disbursed to Tenant out of the net award as and when
payment of such award is received by Landlord. Tenant shall also furnish
Landlord and Tenant as co-trustees with each certificate hereinabove referred
to, together with evidence reasonably satisfactory to Landlord that there are
no unpaid bills in espect to any work, labor, services or materials performed,
furnished or supplied, or claimed to have been performed, furnished or
supplied, in connection with such restoration work, and that no liens have
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been filed against the Demised Premises, or any portion thereof. Landlord and
Tenant as co-trustees shall not be required to pay out any funds when there are
unpaid bills for work, labor, services or materials performed, furnished or
supplied in connection with such restoration work, or where a lien for work,
labor, services or materials performed, furnished or supplied has been placed
against the Demised Premises, or any portion thereof. Upon completion of the
restoration work and payment in full therefor by Tenant, and upon submission of
proof reasonably satisfactory to Landlord that the restoration work has been
paid for in full and that the Improvements have been restored or rebuilt to a
complete architectural and mechanical unit for the use and occupancy of Tenant
as provided in this Lease, Landlord and Tenant as co-trustees shall pay over to
Tenant any portion of the cash deposit furnished by Tenant then remaining. To
the extent that any award, damages or compensation which would otherwise be
payable to Landlord and applied to the payment of the cost of restoration of
the Improvements is paid to any mortgagee of Landlord and applied in payment or
reduction of the sum or sums secured by any such mortgage or mortgages made by
Landlord on the Demised Premises, Landlord shall make available for the use of
Tenant, in connection with the payment of the cost of restoring the
Improvements an amount equal to the amount of such net award payable to the
mortgagee. From and after the date of delivery of possession to the condemning
authority pursuant to the Proceedings, the Basic Rent shall be adjusted in the
manner provided in Section 14.5. In the event the cost of restoration work is
reasonably expected to exceed the amount of the award, Tenant shall have the
right to participate in the Proceedings (but not the award except as otherwise
provided herein) provided Tenant pays all costs and expenses related to such
participation and provided Tenant participates only to the extent necessary to
assure that the award is sufficient to pay the cost of restoration as
reasonably determined by Landlord and provided Tenant first provides Landlord
with reasonable security against loss or prejudice to Landlord by reason of
Tenant's participation reasonably acceptable to Landlord. Landlord shall at all
times have the right to control the conduct of such Proceedings, except subject
to the above, Tenant may control as to the portion in which it has the
principal interest.
Section 14.4 Continuance of Obligations. In the event of any termination
of this Lease, or any part thereof, as a result of any such Proceedings, Tenant
shall pay to Landlord all Basic Rent and all Additional Rent and other charges
payable hereunder with respect to that portion of the Demised Premises so taken
in such Proceedings with respect to which this Lease shall have terminated
justly apportioned to the date of such termination. From and after the date of
vesting of title in such Proceedings, Tenant shall continue to pay the Basic
Rent and Additional Rent and other charges payable hereunder, as in this Lease
provided, to be paid by Tenant, subject to an abatement of the Basic Rent as
provided for in Sections 14.3 and 14.5 hereof in respect to the Demised
Premises remaining after such taking.
Section 14.5 Adjustment of Rent. In the event of a partial taking of the
Demised Premises under Section 14.3 hereof, or a partial taking of the Demised
Premises under Section 14.2 hereof, followed by Tenant's election not to
terminate this Lease, the fixed Basic Rent payable hereunder during the period
from and after the date of vesting of title in such Proceedings to the
termination of this Lease shall be equitably adjusted with due consideration of
the size, location, type and quality of the improvements remaining following
such partial taking and the land area of the Demised Premises remaining
following such partial taking.
Section 14.6 Tenant's Interest in Alterations. Anything contained in
this Article XIV to the contrary, Tenant shall have the limited right to prove
in the Proceedings and to receive any separate award which may be made for the
unamortized portion of any improvements or alterations to the Improvements made
by Tenant
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pursuant to Article XIX which have increased the fair market value of the
Improvements by an amount in excess of $25,000.00 (as measured by the
condemning authority); provided, however, in no event shall any portion of such
separate award exceed the lesser of (i) that portion of the award reasonably
attributable to improvements or alterations made by Tenant pursuant to Article
XIX and (ii) the actual expenditures incurred by Tenant with respect to any
such alterations or improvements, and provided further in no event shall such
claims by Tenant reduce Landlord's award below what it would otherwise be
absent such claim (such increase in valuation to be determined in accordance
with the following formula: The unamortized portion of any increase in the
valuation of the Improvements attributable to expenditures incurred by Tenant
for improving or altering the Improvements shall be determined by multiplying
the amount of such increase in valuation by a fraction, the numerator of which
shall be the number of months of the remaining term of the Lease Agreement at
the time of the taking, and the denominator of which shall be the number of
months constituting the useful life of said improvements or alterations
measured at the time of the taking using generally acceptable accounting
principles consistently applied).
ARTICLE XV
ASSIGNMENT, SUBLETTING, ETC.
Section 15.1 Restriction on Transfer. Tenant shall not sublet the
Demised Premises, or any portion thereof, nor assign, mortgage, pledge,
transfer or otherwise encumber or dispose of this Lease, or any interest
therein, or in any manner assign, mortgage, pledge, transfer or otherwise
encumber or dispose of its interest or estate in the Demised Premises, or any
portion thereof, without obtaining Landlord's prior written consent in each and
every instance, which consent shall not be unreasonably withheld or delayed,
provided the following conditions are complied with:
(a) Any assignment of this Lease shall transfer to the assignee all of
Tenant's right, title and interest in this Lease and all of
Tenant's estate or interest in the Demised Premises.
(b) At the time of any assignment or subletting, and at the time when
Tenant requests Landlord's written consent thereto, this Lease
must be in full force and effect, without any breach or default
thereunder on the part of Tenant.
(c) Any such assignee shall assume, by written, recordable instrument,
in form and content satisfactory to Landlord, the due performance
of all of Tenant's obligations under this Lease, including any
accrued obligations at the time of the effective date of the
assignment, and such assumption agreement shall state that the same
is made by the assignee for the express benefit of Landlord as a
third party beneficiary thereof. A copy of the assignment and
assumption agreement, both in form and content satisfactory to
Landlord, fully executed and acknowledged by assignee, together
with a certified copy of a property executed corporate resolution
(if the assignee be a corporation) authorizing the execution and
delivery of such assumption agreement, shall be sent to Landlord
ten days prior to the effective date of such assignment.
(d) In the case of a subletting, a copy of any sublease fully executed
and acknowledged by Tenant and the sublessee shall be mailed to
Landlord ten days prior to the effective date of such subletting,
which sublease shall be in form and content acceptable to Landlord.
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(e) Such assignment or subletting shall be subject to all the
provisions, terms, covenants and conditions of this Lease, and
Tenant-assignor (and the guarantor or guarantors of this Lease, if
any) and the assignee or assignees shall continue to be and remain
liable under this Lease, as it may be amended from time to time
without notice to any assignor of Tenant's interest or to any
guarantor.
(f) Each sublease permitted under this Section 15.1 shall contain
provisions to the effect that (i) such sublease is only for actual
use and occupancy by the sublessee; (ii) such sublease is subject
and subordinate to all of the terms, covenants and conditions of
this Lease and to all of the rights of Landlord thereunder; and
(iii) in the event this Lease shall terminate before the
expiration of such sublease, the sublessee thereunder will, at
Landlord's option, attorn to Landlord and waive any rights the
sublessee may have to terminate the sublease or to surrender
possession thereunder, as a result of the termination of this
Lease.
(g) Tenant agrees to pay on behalf of Landlord any and all reasonable
attorney's fees paid or payable to outside counsel occasioned by
such assignment or subletting.
Section 15.2 Restriction From Further Assignment. Notwithstanding
anything contained in this Lease to the contrary and notwithstanding any
consent by Landlord to any sublease of the Demised Premises, or any portion
thereof, or to any assignment of this Lease or of Tenant's interest or estate
in the Demised Premises, no sublessee shall assign its sublease nor further
sublease the Demised Premises, or any portion thereof, and no assignee shall
further assign its interest in this Lease or its interest or estate in the
Demised Premises, or any portion thereof, nor sublease the Demised Premises, or
any portion thereof, without Landlord's prior written consent in each and every
instance which consent shall not be unreasonably withheld or unduly delayed. No
such assignment or subleasing shall relieve Tenant from any of Tenant's
obligations in this Lease contained.
Section 15.3 Landlord's Termination Right. Notwithstanding anything
contained in this Lease to the contrary, should Tenant desire to assign this
Lease, or its interest or estate in the Demised Premises, or sublet the Demised
Premises, or any portion thereof, it shall give written notice of its intention
to do so to Landlord 60 days or more before the effective date of such proposed
assignment or subletting and Landlord may, at any time within 30 days after the
receipt of such notice from Tenant, cancel this Lease with respect to the space
therein described by giving Tenant written notice of its intention to do so, in
which event such cancellation shall become effective upon the date specified by
Landlord, but not less than 30 days nor more than 90 days after its receipt by
Tenant, with the same force and effect as if said cancellation date were the
date originally set forth as the expiration date of the Initial Term of this
Lease, or any extension or renewal thereof. If Tenant's notice shall cover all
of the Demised Premises, and Landlord shall have exercised its foregoing
cancellation right, the term of this Lease shall expire and end on the
effective date of the assignment of subletting stated in Tenant's notice as
fully and completely as if that date had been herein definitely fixed for the
expiration of the term of this Lease. If, however, this Lease be cancelled with
respect to less than the entire Demised Premises, the Basic Rent and Additional
Rent shall be equitably adjusted on a square foot basis from and after the
termination date for said portion, and this Lease as so amended shall continue
thereafter in full force and effect. The rent adjustments provided for herein
shall be evidenced by an amendment to this Lease executed by Landlord and
Tenant. If this Lease shall be terminated in the manner aforesaid, either as to
the
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entire Demised Premises or only a portion thereof, to such extent the term of
this Lease shall and upon the appropriate effective date of the proposed
sublease or assignment as if that date had been originally fixed in this Lease
for such expiration, and in the event of a termination affecting less than the
entire Demised Premises, Tenant shall comply with Section 20.18 of this Lease
with respect to such portion of the Demised Premises affected thereby. Landlord
may enter into a direct lease with the proposed sublessee of assignee or with
any other persons as Landlord may desire without obligation or liability to
Tenant, its assignees, sublessees or their respective successors, assigns,
agents or brokers.
Section 15.4 Tenant's Failure to Comply. Tenant's failure to comply
with all of the foregoing provisions and conditions of this Article XV shall
(whether or not Landlord's consent is required under this Article), at
Landlord's option, render any purported assignment or subletting null and void
and of no force and effect.
Section 15.5 Sharing of Excess Rent. If Landlord consents to Tenant
assigning its interest under this Lease or subletting all or any portion of the
Demised Premises, Tenant shall pay to Landlord (in addition to Rent and all
other amounts payable by Tenant under this Lease) 50% of the rents and other
considerations payable by such assignee or subtenant (after deducting amounts
paid by Tenant for (i) reasonable and customary advertising expenses incurred
in connection with such assignment or sublease, (ii) leasing commissions paid
by Tenant for such assignment or sublease (iii) tenant improvement allowances
granted to such assignee or subtenant and (iv) attorney's fees incurred by
Tenant for such assignment or sublease, not to exceed $1,000.00) in excess of
the Rent otherwise payable by Tenant from time to time under this Lease. For
the purposes of this computation, the additional amount payable by Tenant shall
be determined by application of the rental rate per square foot for the Demised
Premises or any portion thereof sublet. Said additional amount shall be paid to
Landlord immediately upon receipt by Tenant of such Rent or other
considerations from the assignee or subtenant.
ARTICLE XVI
SUBORDINATION, NONDISTURBANCE,
NOTICE TO MORTGAGEE AND ATTORNMENT
Section 16.1 Subordination by Tenant. This Lease and all rights of
Tenant therein, and all interest or estate of Tenant in the Demised Premises, or
any portion thereof, shall be subject and subordinate to the lien of any
mortgage, deed of trust, security instrument or other document of like nature
("Mortgage"), which at any time may be placed upon the Demised Premises, or any
portion thereof, by Landlord, and to any replacements, renewals, amendments,
modifications, extensions or refinancing thereof, and to each and every advance
made under any Mortgage. Tenant agrees at any time hereafter, and from time to
time on demand of Landlord, to execute and deliver to Landlord any instruments,
releases or other documents that may be reasonably required for the purpose of
subjecting and subordinating this Lease to the lien of any such Mortgage. It is
agreed, nevertheless, that so long as Tenant is not in default in the payment
of Basic Rent and Additional Rent and the performance and observance of all
covenants, conditions, provisions, terms and agreements to be performed and
observed by Tenant under this Lease, that such subordination agreement or other
instrument, release or document shall not interfere with, hinder or molest
Tenant's right to quiet enjoyment under this Lease, nor the right of Tenant to
continue to occupy the Demised Premises, and all portions thereof, and to
conduct its business thereon in accordance with the covenants, conditions,
provisions, terms and agreements of this Lease. The lien of any such Mortgage
shall not cover Tenant's trade fixtures or other personal property located
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in or on the Demised Premises.
Section 16.2 Landlord's default. In the event of any act or omission
of Landlord constituting a default by Landlord, Tenant shall not exercise any
remedy until Tenant has given Landlord prior written notice of such act or
omission and until a 30-day period of time to allow Landlord or the mortgages
to remedy such act or omission shall have elapsed following the giving of such
notice; provided, however, if such act or omission cannot, with due diligence
and in good faith, be remedied within such 30-day period, the Landlord and/or
mortgagee shall be allowed such further period of time as may be reasonably
necessary provided that it shall have commenced remedying the same with due
diligence and in good faith within said 30-day period. In the event Landlord's
act or omission which constitutes a Landlord's default hereunder results in an
immediate threat of bodily harm to Tenant's employees, agents or invitees, or
damage to Tenant's property Tenant may proceed to cure the default without
prior notice to Landlord; provided, however, in that event Tenant shall give
written notice to Landlord as soon as possible after commencement of such cure.
Landlord shall reimburse Tenant for its reasonable out-of-pocket expenditures
incurred in curing such default within thirty (30) days following receipt by
Landlord of invoices in detail reasonably acceptable to Landlord with interest
thereon at the Maximum Rate of Interest from the date of expenditure by Tenant
(provided such date is not prior to expiration of any applicable grace or cure
period) to the date of reimbursement by Landlord. Nothing herein contained
shall be construed or interpreted as permitting Tenant to offset rent or any
other payments due hereunder. Further, nothing herein contained shall be
construed or interpreted as requiring any mortgagee to remedy such act or
omission.
Section 16.3 Attornment. If any mortgagee shall succeed to the rights
of Landlord under this Lease or to ownership of the Demised Premises, whether
through possession or foreclosure or the delivery of a deed to the Demised
Premises, then, Tenant shall attorn to and recognize such mortgagee as
Tenant's landlord under this Lease, and shall promptly execute and deliver any
instrument that such mortgagee may reasonably request to evidence such
attornment (whether before or after making of the mortgage) provided that so
long as Tenant is not in default in the payment of Basic Rent and Additional
Rent and the performance and observance of all covenants, conditions,
provisions, terms and agreements to be performed and observed by Tenant under
this Lease, such mortgagee as landlord shall not interfere with, hinder or
molest Tenant's right to quiet enjoyment under this Lease, nor the right of
Tenant to continue to occupy the Demised Premises, and all portions thereof,
and to conduct its business therein in accordance with the covenants,
conditions, provisions, terms and agreements of this Lease. In the event of any
other transfer of Landlord's interest hereunder, upon the written request of
the transferee and Landlord, Tenant shall attorn to and recognize such
transferee as Tenant's landlord under this Lease and shall promptly execute and
deliver any instrument that such transferee and Landlord may reasonably request
to evidence such attornment provided that so long as Tenant is not in default
in the payment of Basic Rent and Additional Rent and the performance and
observance of all covenants, conditions, provisions, terms and agreements to be
performed and observed by Tenant under this Lease, such mortgagee as landlord
shall not interfere with, hinder or molest Tenant's right to quiet enjoyment
under this Lease, nor the right of Tenant to continue to occupy the Demised
Premises, and all portions thereof, and to conduct its business therein in
accordance with the covenants, conditions, provisions, terms and agreements of
this Lease.
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ARTICLE XVII
SIGNS
Section 17.1 Tenants Signs. Tenant may erect signs on the exterior or
interior of the Building or on the landscaped area adjacent thereto, provided
that such sign or signs (a) do not cause any structural damage or other damage
to the Building; (b) do not violate applicable governmental laws, ordinances,
rules or regulations; (c) do not violate any existing restrictions affecting
the Demised Premises; and (d) are compatible with the architecture of the
Building and the landscaped area adjacent thereto.
ARTICLE XVIII
REPORTS BY TENANT
Section 18.1 Annual Statements. Upon request by Landlord at any time
after 135 days after the end of the applicable fiscal year of Tenant, Tenant
shall deliver to Landlord (within 15 days after receipt of written request) a
copy of its audited financial statement, including the certification of its
auditor, and similar financial statement of any guarantor of Tenant's
obligations under this Lease.
ARTICLE XIX
CHANGES AND ALTERATIONS
Section 19.1 Tenant's Changes and Alterations. Tenant shall have the
right at any time, and from time to time during the term of this Lease, to make
such changes and alterations, structural or otherwise, to the Building,
improvements and fixtures hereafter erected on the Demised Premises as Tenant
shall deem necessary or desirable in connection with the requirements of its
business, which such changes and alterations (other than changes or alterations
of Tenant's movable trade fixtures and equipment) shall be made in all cases
subject to the following conditions, which Tenant covenants to observe and
perform:
(a) Permits. No change or alteration shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be
required from time to time, all municipal, state and federal
permits and authorizations of the various governmental bodies and
departments having jurisdiction thereof, and Landlord agrees to
join in the application for such permits or authorizations whenever
such action is necessary, all at Tenant's sole cost and expense,
provided such applications do not cause Landlord to become liable
for any cost, fees or expenses.
(b) Compliance with Plans and Specifications. Before commencement of
any change, alteration, restoration or construction (hereinafter
sometimes referred to as "Work") involving in the aggregate an
estimated cost of more than Ten Thousand and no/100 Dollars
($10,000.00) or which in Landlord's reasonable judgment would
materially alter the mechanical, structural, or electrical systems
of the Improvements, Tenant shall (i) furnish Landlord with
detailed plans and specifications of the proposed change or
alteration; (ii) obtain Landlord's prior written consent, which
consent shall not be unreasonably withheld (but such consent may
be withheld if the change or alteration would, in the reasonable
judgment of Landlord, impair the value or usefulness of the Land or
Improvements, or any substantial part thereof to Landlord); (iii)
obtain Landlord's prior written approval, not to be unreasonably
withheld, of a licensed architect or licensed
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professional engineer selected and paid for by Tenant, who shall
supervise any such work (hereinafter referred to as "Alterations
Architect or Engineer"); (iv) obtain Landlord's prior written
approval of detailed plans and specifications, which approval shall
not be unreasonably withheld with respect to plans and
specifications covering work not affecting the structural,
electrical or mechanical systems of the Improvements (but which
approval may be withheld in Landlord's sole and absolute direction
with respect to plans and specifications covering Work affecting
the structural, electrical or mechanical systems of the
Improvements) prepared and approved in writing by said Alterations
Architect or Engineer, and of each amendment and change thereto;
and (v) furnish to Landlord a surety company performance bond
issued by a surety company licensed to do business in the state in
which the Demised Premises are located and reasonably acceptable to
Landlord in an amount equal to the estimated cost of such work
guaranteeing the completion thereof within a reasonable time
thereafter (1) free and clear of all mechanic's liens or other
liens, encumbrances, security interests and charges, and (2) in
accordance with the plans and specifications approved by Landlord;
provided, however, so long as Tenant maintains a financial net
worth of at least $15,000,000.00 as evidenced by audited financial
statements prepared by an independent certified public accountant
and delivered to Landlord at the time of Tenant's request for Work
requiring Landlord's consent and approval hereunder, Tenant shall
not be required to furnish the aforesaid surety company performance
bond.
(c) Value Maintained. Any change or alteration shall, when completed,
be of such character as not to reduce the value or utility of the
Demised Premises or the Building to which such change or alteration
is made below its value or utility to Landlord immediately before
such change or alteration, nor shall such change or alteration
reduce the area or cubic content of the Building, nor change the
character of the Demised Premises or the Building as to use without
Landlord's express written consent.
(d) Compliance with Laws. All Work done in connection with any change
or alteration shall be done promptly and in a good and workmanlike
manner and in compliance with all building and zoning laws of the
place in which the Demised Premises are situated, and with all
laws, ordinances, orders, rules, regulations and requirements of
all federal, state and municipal governments and appropriate
departments, commissions, boards and officers thereof, and in
accordance with the orders, rules and regulations of the Board of
Fire Underwriters where the Demised Premises are located, or any
other body exercising similar functions. The cost of any such
change or alteration shall be paid in cash so that the Demised
Premises and all portions thereof shall at all times be free of
liens for labor and materials supplied to the Demised Premises, or
any portion thereof. The Work of any change or alteration shall be
prosecuted with reasonable dispatch, delays due to strikes,
lockouts, acts of God, inability to obtain labor or materials,
governmental restrictions or similar causes beyond the control of
Tenant excepted. Tenant shall obtain and maintain, at its sole cost
and expense, during the performance of the Work, workers'
compensation insurance covering all persons employed in connection
with the Work and with respect to which death or injury claims
could be asserted against Landlord or Tenant or against the Demised
Premises or any interest therein, together with
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comprehensive general liability insurance for the mutual benefit of
Landlord and Tenant with limits of not less than One Million Dollars
($1,000,000.00) in the event of injury to one person, Three Million Dollars
($3,000,000.00) in respect to any one accident or occurrence, and Five
Hundred Thousand Dollars ($500,000.00) for property damage, and the fire
insurance with "extended coverage" endorsement required by Section 6.1
hereof shall be supplemented with "builder's risk" insurance on a completed
value form or other comparable coverage on the Work. All such insurance
shall be in a company or companies authorized to do business in the state in
which the Demised Premises are located and reasonably satisfactory to
Landlord, and all such policies of insurance or certificates of insurance
shall be delivered to Landlord endorsed "Premium Paid" by the company or
agency issuing the same, or with other evidence of payment of the premium
satisfactory to Landlord.
(e) Property of Landlord. Subject to the terms of paragraph (g) below, all
improvements and alterations (other than Tenant's movable trade fixtures and
equipment) made or installed by Tenant shall immediately, upon completion or
installation thereof, become the property of Landlord without payment
therefor by Landlord, and shall be surrendered to Landlord on the expiration
of the term of this Lease.
(f) Location of Improvements. No change, alteration, restoration or new
construction shall be in or connect the Improvements with any property,
building or other improvement located outside the boundaries of the parcel
of land described in Exhibit "A" attached, nor shall the same obstruct or
interfere with any existing easement.
(g) Removal of Improvements. As a condition to granting approval for any
changes or alterations, Landlord may require Tenant to remove any
improvements, additions or installations installed by Tenant in the Demised
Premises at Tenant's sole cost and expense, and repair and restore any
damage caused by the installation and removal of such improvements,
additions, or installations; provided, however, the only improvements,
additions or installations which Tenant shall remove shall be those
specified in such notice. If Landlord does not require Tenant to remove such
improvements, additions or installations thereof, Tenant shall not be
required to remove such improvements, additions or installations. All
improvements, additions or installations installed by Tenant which did not
require Landlord's prior approval shall be removed by Tenant as provided for
in this Section 19.1(g), unless Tenant has obtained a written waiver of such
condition from Landlord prior to installation thereof.
(h) Written Notification Required. Tenant shall notify Landlord in writing 30
days prior to commencing any alterations, additions or improvements to the
Demised Premises which have been approved by Landlord so that Landlord shall
have the right to record and post notices of non-responsibility on the
Demised Premises.
ARTICLE XX
MISCELLANEOUS PROVISIONS
Section 20.1 Entry by Landlord. Tenant agrees to permit Landlord and
authorized representatives of Landlord to enter upon
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the Demised Premises at all reasonable times upon reasonable notice (except in
case of an emergency in which event Landlord or its agents may enter at any
time with or without notice) during ordinary business hours for the purpose of
inspecting the same and making any necessary repairs to comply with any laws,
ordinances, rules, regulations or requirements of any public body, or the Board
of Fire Underwriters, or any similar body. Nothing herein contained shall imply
any duty upon the part of Landlord to do any such work which, under any
provision of this Lease, Tenant may be required to perform and the performance
thereof by Landlord shall not constitute a waiver of Tenant's default in
failing to perform the same. Landlord may, during the progress of any work,
keep and store upon the Demised Premises all necessary materials, tools and
equipment. Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage to Tenant by reason of
making repairs or the performance of any work in or about the Demised Premises,
or on account of bringing material, supplies and equipment into, upon or
through the Demised Premises during the course thereof, and the obligations of
Tenant under this Lease shall not be thereby affected in any manner whatsoever;
provided, however, in the exercise of its rights hereunder Landlord shall use
reasonable efforts to interfere with the business of Tenant as little as
reasonably possible under the circumstances; provided, however, nothing herein
shall require Landlord to perform any necessary work during other than normal
business hours.
Section 20.2 Exhibition of Demised Premises. Landlord is hereby given
the right during usual business hours at any time during the term of this Lease
upon reasonable notice to enter upon the Demised Premises and to exhibit the
same for the purpose of mortgaging or selling the same; provided, however, in
the exercise of its rights hereunder Landlord shall use reasonable efforts to
interfere with the business of Tenant as little as reasonably possible under
the circumstances. During the final year of the term, Landlord shall be
entitled to display on the Demised Premises, in such manner as to not
unreasonably interfere with Tenant's business, signs indicating that the
Demised Premises are for rent or sale and suitably identifying Landlord or its
agent. Tenant agrees that such signs may remain unmolested upon the Demised
Premises and that Landlord may exhibit said premises to prospective tenants
during said period.
Section 20.3 Indemnification by Tenant. To the fullest extent allowed
by law, Tenant shall at all times indemnify, defend and hold Landlord and
Landlord's shareholders, employees and managing agent harmless against and from
any and all claims, costs, liabilities, actions and damages (including, without
limitation, attorneys' fees and costs) by or on behalf of any person or
persons, firm or firms, corporation or corporations, arising from the conduct
or management, or from any work or things whatsoever done in or about the
Demised Premises other than the construction and installation of the Landlord's
Improvements, and will further indemnify, defend and hold Landlord harmless
against and from any and all claims arising during the term of this Lease, from
any condition of the Improvements or any street, curb or sidewalk forming a
part of the Demised Premises, or of any passageways or space therein or
appurtenant thereto, or arising from any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed, pursuant to the terms of this Lease, or arising from any act or
negligence of Tenant, its agents, servants, employees or licensees, or arising
from any accident, injury or damage whatsoever caused to any person, firm or
corporation occurring during the term of this Lease, in or about the Demised
Premises, or upon the sidewalk and the land forming a part of the Demised
Premises, and from and against all costs, attorney's fees, expenses and
liabilities incurred in or about any such claim or action or proceeding brought
thereon; and in case any action or proceeding be brought against Landlord by
reason of any such claim, Tenant, upon notice from
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Landlord, covenants to defend such action or proceeding by counsel reasonably
satisfactory to Landlord. Tenant's obligations under this Section 20.3 shall be
insured by contractual liability endorsement on Tenant's policies of insurance
required under the provisions of Section 6.2 hereof.
Section 20.4 Notices. All notices, demands and requests which may be
or are required to be given, demanded or requested by either party to the other
shall be in writing. All notices, demands and requests shall be sent by United
States registered or certified mail, postage prepaid or by an independent
overnight courier service, addressed as follows:
To Landlord: Opus North Corporation
9700 West Higgins Road, Suite 900
Rosemont, Illinois 60018
Attention: President
With a copy to: Opus U.S. Corporation
P.O. Box 59110
Minneapolis, Minnesota 55440
Attention: Legal Department
To Tenant: ERO Industries, Inc.
585 Slawin Court
Mount Prospect, IL 60056
Attention: Senior Vice President
Finance
With a copy to: Sachnoff & Weaver
30 South Wacker, Suite 2900
Chicago, Illinois 60606
Attention: Barry S. Cain
or at such other place as Landlord may from time to time designate by written
notice to Tenant. Notices, demands and requests which shall be served upon
Landlord by Tenant, or upon Tenant by Landlord, in the manner aforesaid, shall
be deemed to be sufficiently served or given for all purposes hereunder at the
time such notice, demand or request shall be mailed or delivered to a courier.
Section 20.5 Quiet Enjoyment. Landlord covenants and agrees that
Tenant, upon paying the Basic Rent and Additional Rent, and upon observing and
keeping the covenants, agreements and conditions of this Lease on its part to
be kept, observed and performed, shall lawfully and quietly hold, occupy and
enjoy the Demised Premises (subject to the provisions of this Lease) during the
term of this Lease without hindrance or molestation by Landlord or by any
person or persons claiming under Landlord.
Section 20.6 Landlord's Continuing Obligations. The term "Landlord,"
as used in this Lease so far as covenants or obligations on the part of
Landlord are concerned, shall be limited to mean and include only the owner or
owners at the time in question of the fee of the Demised Premises, and in the
event of any transfer or transfers or conveyance the then grantor shall be
automatically freed and relieved from and after the date of such transfer or
conveyance of all liability as respects the performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed, provided that any funds in the hands of such landlord or the then
grantor at the time of such transfer, in which Tenant has an interest, shall be
turned over to the grantee, and any amount then due and payable to Tenant by
Landlord or the then grantor under any provision of this Lease shall be paid to
Tenant. The covenants and obligations contained in this Lease on the part of
Landlord shall, subject to the aforesaid, be binding on Landlord's successors
and assigns, during and in respect of their respective successive periods of
ownership. Nothing herein contained shall be construed as relieving Landlord
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of its obligations under Article II of this Lease, or releasing Landlord from
any obligation to complete the cure of any breach by Landlord during the period
of its ownership of the Demised Premises.
Section 20.7 Estoppel. Landlord and Tenant shall each without charge
at any time and from time to time, within twenty days after written request by
the other party, certify by written instrument, duly executed, acknowledged
and delivered to any mortgagee, assignee of a mortgagee, proposed mortgagee, or
to any purchaser or proposed purchaser, or to any other person dealing with
Landlord, Tenant or the Demised Premises:
(a) That this Lease (and all guaranties, if any) is unmodified and in
full force and effect (or, if there have been modifications, that
the same is in full force and effect, as modified, and stating the
modifications);
(b) The dates to which the Basic Rent or Additional Rent have been
paid in advance;
(c) Whether or not there are then existing any breaches or defaults by
such party or the other party known by such party under any of the
covenants, conditions, provisions, terms or agreements of this
Lease, and specifying such breach or default, if any, or any
setoffs or defenses against the enforcement of any covenant,
condition, provision, term or agreement of this Lease (or of any
guaranties) upon the part of Landlord or Tenant (or any guarantor),
as the case may be, to be performed or complied with (and, if so,
specifying the same and the steps being taken to remedy the same);
and
(d) Such other statements or certificates as Landlord or any mortgagee
may reasonably request.
It is the intention of the parties hereto that any statement delivered
pursuant to this Section 20.7 may be relied upon by any of such parties dealing
with Landlord, Tenant or the Demised Premises. If Tenant does not deliver such
statement to Landlord within such 20 day period, Landlord, and any prospective
purchaser or encumbrancer of the Demised Premises or the Building, may
conclusively presume and rely upon the following facts: (i) that the terms and
provisions of this Lease have not been changed except as otherwise represented
by Landlord; (ii) that this Lease has not been cancelled or terminated and is
in full force and effect, except as otherwise represented by Landlord; that the
current amounts of the Basic Rent and Security Deposit are as represented by
Landlord; that any changes made against the Security Deposit are uncontested
and valid; that there have been no subleases or assignments of the Lease; (iii)
that not more than one month's Basic Rent or other charges have been paid in
advance; and (iv) that Landlord is not in default under the Lease. In such
event, Tenant shall be estopped from denying the truth of such facts.
Section 20.8 Delivery of Corporate Documents. In the event that
Tenant is a corporation, Tenant shall, without charge to Landlord, at any time
and from time to time within ten days after the written request by Landlord,
deliver to Landlord, in connection with any proposed sale or mortgage of the
Demised Premises, the following instruments and documents:
(a) Certificate of Good Standing in the state of incorporation of
Tenant and in the state in which the Demised Premises are located
issued by the appropriate state authority and bearing a current
date;
(b) A copy of Tenant's articles of incorporation and by-laws, and any
amendments or modifications
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thereof certified by the secretary or assistant secretary of
Tenant;
(c) An opinion of Tenant's counsel that (i) this Lease has been duly
authorized by all necessary corporate action and is a valid and
binding agreement enforceable in accordance with its terms; and
(ii) Tenant is a duly organized and validly existing corporation
under the laws of its state of incorporation, is duly authorized to
carry on its business, and is in good standing under the laws of
the state in which the Demised Premises are located, if different
from the state of incorporation, and has all necessary licenses and
permits to carry on its business.
Landlord, at any time and from time to time within ten days after
written request from Tenant, shall deliver to Tenant an opinion of Landlord's
counsel that (a) this Lease has been duly authorized by all necessary corporate
action and is a valid and binding agreement enforceable in accordance with its
terms, and (b) Landlord is a duly organized and validly existing corporation
under the laws of its state of incorporation, is duly authorized to carry on
its business, and is in good standing under the laws of the state in which the
Demised Premises are located, if different from the state of incorporation,
and has all necessary licenses and permits to carry on its business.
Section 20.9 Memorandum of Lease. Upon not less than ten days prior
written request by either party, the parties hereto agree to execute and
deliver to each other a Memorandum Lease, in recordable form, setting forth the
following:
(a) The date of this Lease;
(b) The parties to this Lease;
(c) The term of this Lease;
(d) The legal description of the Demised Premises; and
(e) Such other matters reasonably requested by Landlord to be stated
therein.
Section 20.10 Severability. If any covenant, condition, provision,
term or agreement of this Lease shall, to any extent, be held invalid or
unenforceable, the remaining covenants, conditions, provisions, terms and
agreements of this Lease shall not be affected thereby, but each covenant,
condition, provision, term or agreement of this Lease shall be valid and in
force to the fullest extent permitted by law. This Lease shall be construed and
be enforceable in accordance with the laws of the state in which the Demised
Premises are located.
Section 20.11 Successors and Assigns. The covenants and agreements
herein contained shall bind and inure to the benefit of Landlord, its
successors and assigns, and Tenant and its permitted successors and assigns.
Section 20.12 Captions. The caption of each article of this Lease is
for convenience and reference only, and in no way defines, limits or describes
the scope or intent of such article or of this Lease.
Section 20.13 Relationship of Parties. This Lease does not create the
relationship of principal and agent, or of partnership, joint venture, or of
any association or relationship between Landlord and Tenant, the sole
relationship between Landlord and Tenant being that of landlord and tenant.
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Section 20.14 Entire Agreement. All preliminary and contemporaneous
negotiations are merged into and incorporated in this Lease. This Lease
together with the Exhibits contains the entire agreement between the parties
and shall not be modified or amended in any manner except by an instrument in
writing executed by the parties thereto.
Section 20.15 No Merger. There shall be no merger of this Lease or the
leasehold estate created by this Lease with any other estate or interest in the
Demised Premises by reason of the fact that the same person, firm, corporation
or other entity may acquire, hold or own directly or indirectly, (a) this Lease
or the leasehold interest created by this Lease or any interest therein, and
(b) any such other estate or interest in the Demised Premises, or any portion
thereof. No such merger shall occur unless and until all persons, firms,
corporations or other entities having an interest (including a security
interest) in (1) this Lease or the leasehold estate created thereby, and (2) any
such other estate or interest in the Demised Premises, or any portion thereof,
shall join in a written instrument expressly affecting such merger and shall
duly record the same.
Section 20.16 Possession and Use. Tenant acknowledges that the Demised
Premises are the property of Landlord and that Tenant has only the right to
possession and use thereof upon the covenants, conditions, provisions, terms
and agreements set forth in this Lease.
Section 20.17 No Surrender During Lease Term. No surrender to Landlord
of this Lease or of the Demised Premises, or any portion thereof, or any
interest therein, prior to the expiration of the term of this Lease shall be
valid or effective unless agreed to and accepted in writing by Landlord and
consented to in writing by all contract vendors and mortgagees, and no act or
omission by Landlord or any representative or agent of Landlord, other than
such a written acceptance by Landlord consented to by all contract vendors and
the mortgagees, as aforesaid, shall constitute an acceptance of any such
surrender.
Section 20.18 Surrender of Demised Premises. At the expiration of the
term of this Lease, Tenant shall surrender the Demised Premises in the same
condition as the same were in upon delivery of possession thereto at the
Commencement Date of the term of this Lease, reasonable wear and tear (and
approved alterations) excepted, and shall surrender all keys to the Demised
Premises to Landlord at the place then fixed for the payment of Basic Rent and
shall inform Landlord of all combinations on locks, safes and vaults, if any.
Tenant shall at such time remove all of its property therefrom and all
alterations and improvements placed thereon by Tenant which are required to be
removed pursuant to Article XIX hereof. Tenant shall repair any damage to the
Demised Premises caused by such removal, and any and all such property not so
removed shall, at Landlord's option, become the exclusive property of Landlord
or be disposed of by Landlord, at Tenant's cost and expense, without further
notice to or demand upon Tenant. If the Demised Premises be not surrendered as
above set forth, Tenant shall indemnify, defend and hold Landlord harmless
against loss or liability resulting from the delay by Tenant in so surrendering
the Demised Premises, including, without limitation any claim made by any
succeeding occupant founded on such delay. Tenant's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
Lease.
All property of Tenant not removed within 30 days after the last day of
the term of this Lease shall be deemed abandoned. Tenant hereby appoints
Landlord its agent to remove all property of Tenant from the Demised Premises
upon termination of this Lease and to cause its transportation and storage for
Tenant's benefit, all at the sole cost and risk of Tenant and Landlord shall
not be
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liable for damage, theft, misappropriation or loss thereof and Landlord shall
not be liable in any manner in respect thereto. Tenant shall pay all costs and
expenses of such removal transportation and storage. Tenant shall reimburse
Landlord upon demand for any expenses incurred by Landlord with respect to
removal or storage of abandoned property and with respect to restoring said
Demised Premises to good order, condition and repair.
Section 20.19 Holding Over. In the event Tenant remains in possession
of the Demised Premises after expiration of this Lease, and without the
execution of a new lease, it shall be deemed to be occupying the Demised
Premises as a tenant from month to month, subject to all the provisions,
conditions and obligations of this Lease insofar as the same can be applicable
to a month-to-month tenancy, except that the Basic Rent shall be escalated to
150% of the then current Basic Rent for the Demised Premises.
Section 20.20 Landlord Approval. Any approval by Landlord or
Landlord's architects and/or engineers of any of Tenant's drawings, plans and
specifications which are prepared in connection with any construction of
improvements respecting the Demised Premises shall not in any way be construed
or operate to bind Landlord or to constitute a representation or warranty of
Landlord as to the adequacy or sufficiency of such drawings, plans and
specifications, or the improvements to which they relate, for any reason,
purpose or condition, but such approval shall merely be the consent of
Landlord, as may be required hereunder, in connection with Tenant's
construction of improvements relating to the Demised Premises in accordance
with such drawings, plans and specifications.
Section 20.21 Survival. All obligations (together with interest or
money obligations at the Maximum Rate of Interest) accruing prior to expiration
of the term of this Lease shall survive the expiration or other termination of
this Lease.
Section 20.22 Attorney's Fees. In the event of any litigation or
judicial action in connection with this Lease or the enforcement thereof, the
prevailing party in any such litigation or judicial action shall be entitled to
recover all costs and expenses of any such judicial action or litigation
(including, but not limited to, reasonable attorneys' fees and paralegals'
fees) from the other party.
Section 20.23 Landlord's Limited Liability. Tenant agrees to look
solely to Landlord's interest in the Demised Premises for recovery of any
judgment from Landlord, it being agreed that Landlord (and if Landlord is a
partnership, its partners, whether general or limited, and if Landlord is a
corporation, its directors, officers or shareholders) shall never be personally
liable for any personal judgment or deficiency decree or judgment against it.
Section 20.24 Broker. Tenant represents that it has dealt directly
with and only with Grubb & Ellis Company and CB Commercial Real Estate Group,
Inc. in connection with this Lease and that no other broker has negotiated or
participated in negotiations of this Lease or is entitled to any commission in
connection therewith. Tenant shall indemnify and hold Landlord harmless from
and against any and all commissions, fees and expenses and all claims therefor
by any broker, salesman or other party in connection with or arising out of
Tenant's action in entering into this Lease, except for the commissions of the
aforesaid brokers, which commissions Landlord shall be obligated to pay.
Landlord shall indemnify and hold Tenant harmless from and against any and all
commissions, fees and expenses and all claims therefor by any broker, salesman
or other party in connection with or arising out of Landlord's action in
entering into this Lease. In respect to any claim indemnified against herein,
the indemnifying party shall be given prompt notice of such claims and
opportunity to defend with counsel of its
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selection.
Section 20.25 Governing Law. This Lease shall be governed by the laws
of the State of Illinois. All covenants, conditions and agreements of Tenant
arising hereunder shall be performable in the country wherein the Demised
Premises are located. Any suit arising from or relating to this Lease shall be
brought in the country wherein the Demised Premises are located, and the
parties hereto waive the right to be sued elsewhere.
Section 20.26 Joint and Several Liability. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
Section 20.27 Time is of the Essence. Time is of the essence with
respect to the performance of every provision of this Lease in which time of
performance is a factor.
ARTICLE XXI
MOVING EXPENSES ALLOWANCE
Landlord shall reimburse Tenant Fifty Thousand and 00/100 Dollars
($50,000.00) for Tenant's moving expenses incurred as a result of Tenant's
relocation to the Demised Premises, such reimbursement to be payable by
Landlord within ten (10) days from the date Tenant commences occupancy of the
Demised Premises and requests such reimbursement.
ARTICLE XXII
REIMBURSEMENT OF COST OF
PREPARING THE WORKING DRAWINGS
Landlord shall reimburse Tenant an amount equal to the cost (not to
exceed $76,300.00) of the architectural and engineering services of Tenant's
Consultants for the preparation of the Working Drawings by Tenant's
Consultants, such reimbursement to be payable by Landlord within ten (10) days
from the date Tenant commences occupancy of the Demised Premises and Tenant has
submitted an invoice therefor in detail reasonably acceptable to Landlord.
ARTICLE XXIII
OPPORTUNITY TO NEGOTIATE EXTENSION TERM
In the event Tenant desires to negotiate to extend the Initial Term of
this Lease for one (1) period of five (5) years ("Proposed Extension Term") and
provided Tenant is not then in default in the performance of the terms,
covenants and conditions of this Lease or in the payment of Basic Rent,
Additional Rent or any other charges payable by Tenant hereunder, Tenant shall
so notify Landlord on or before the date which is 270 days prior to the
expiration of the Initial Term. In the event Tenant notifies Landlord as above
provided, Tenant and Landlord shall negotiate in good faith as to the terms and
conditions of the Proposed Extension Term. In the event Tenant and Landlord are
not able to agree upon the terms and conditions of the Proposed Extension Term
on or before the date 180 days prior to the expiration of the Initial Term,
Tenant and Landlord shall have no further obligation to negotiate or enter into
any agreement respecting the Proposed Extension Term, and there shall be no
Proposed Extension Term. Landlord shall not negotiate with any other tenant
relative to the Demised Premises before the date 270 days prior to the
expiration of the Initial Term or during the period Landlord and Tenant are
required to negotiate in good faith with respect to the Proposed Extension
Term. In the event Tenant and Landlord are able to agree upon the terms and
conditions of the Proposed Extension Term on or before the date 180 days prior
to the expiration of the Initial
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Term, Tenant and Landlord shall execute an amendment to this Lease prepared by
Landlord and reasonably acceptable to tenant and Landlord, evidencing the terms
and conditions of the proposed Extension Term, in which event the terms of this
Lease as so amended shall continue in full force and effect. The purpose of
this paragraph is to ensure that Landlord and Tenant shall negotiate with
respect to the Proposed Extension Term but nothing herein contained shall be
deemed to be an option or right of first refusal and nothing shall preclude
Landlord from negotiating with other tenants at any time except as provided
herein relative to the Demised Premises.
ARTICLE XXIV
ASSIGNMENT AND SUBLETTING TO WHOLLY OWNED SUBSIDIARY
Anything in Article XV to the contrary notwithstanding, Tenant may
transfer, sublet or assign Tenant's interest in this Lease to an affiliate of
subsidiary eighty percent (80%) of the voting stock of which is owned directly
or indirectly by Tenant (without Landlord's consent, upon prior written notice
to Landlord); provided, however, no such transfer, assignment or subletting
shall release Tenant from its obligations under this Lease and nothing herein
shall abrogate the requirement of the written assumption by such affiliate or
subsidiary.
ARTICLE XXV
FAILURE TO DELIVER POSSESSION
Notwithstanding anything to the contrary in Article II of this Lease,
in the event Landlord fails to deliver possession of the Demised Premises to
Tenant with the Landlord's Improvements substantially completed by September 1,
1992, Tenant, as its sole remedy, shall be entitled to a credit in the amount
of $2,000.00 for each day of delay until possession of the Demised Premises
with the Landlord's Improvements substantially completed is delivered to
Tenant, such credit to be applied against Basic Rent first coming due hereunder
until such credit is exhausted; provided, however, the date September 1, 1992,
provided for herein shall be extended for the period that Landlord is unable to
deliver possession by reason of the occurrence of an Excused Delay. Further and
notwithstanding anything to the contrary in Article II of this Lease, in the
event Landlord fails to deliver possession of the Demised Premises to Tenant
with the Landlord's Improvements substantially completed on or before December
31, 1992, then Tenant shall have the option, as its sole remedy, to terminate
this Lease upon notice to Landlord given subsequent to such date and prior to
the date that Landlord delivers possession of the Demised Premises to Tenant
with the Landlord's Improvements substantially complete; provided, however, the
date December 31, 1992, shall be extended for the period that Landlord is
unable to deliver possession by reason of the occurrence of an Excused Delay,
and provided further, in the event Landlord notifies Tenant that Landlord will
not be able to deliver possession of the Demised Premises by December 31, 1992,
as such date may be extended as provided above, Tenant may not terminate this
lease under the provisions hereof unless it does so within ten (10) days of
receipt by Tenant of such notice. Further, and notwithstanding anything to the
contrary in Article II of this Lease, in the event Landlord fails to deliver
possession of the Demised Premises to Tenant with the Landlord's Improvements
substantially completed on or before February 28, 1993, then Tenant shall have
the option, as its sole remedy, to terminate this Lease upon notice to
Landlord given subsequent to such date and prior to the date that Landlord
delivers possession of the Demised Premises to Tenant with the Landlord's
Improvements substantially complete; provided, however, the date February 28,
1993, shall be extended for the period that Landlord is unable to deliver
possession by reason of the occurrence of a Tenant Delay, and provided further,
in the event Landlord notifies Tenant that Landlord will not be
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able to deliver possession of the Demised Premises by February 28, 1993, as
such date may be extended as provided above, Tenant may not terminate this
Lease under the provisions hereof unless it does so within ten (10) days of
receipt by Tenant of such notice. Further, Tenant shall not have the option to
terminate this Lease pursuant to this Article if Tenant has taken possession of
any part of the Demised Premises or commenced to install its equipment, trade
fixtures or furniture therein.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Lease to be
duly executed as of the day and year first above written.
LANDLORD:
OPUS NORTH CORPORATION
By: [Illegible]
-------------------
Its: President
------------------
TENANT:
ERO INDUSTRIES, INC.
By: [Illegible]
-------------------
Its: Senior Vice President
------------------
By: [Illegible]
-------------------
Its: Secretary
------------------
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EXHIBIT "A"
The parcel of land referred to in the attached Lease, sometimes referred to
therein as a part of the "Demised Premises," is a tract of land of
approximately 3.7097 acres, more or less, situated in the Village of Mount
Prospect, County of Cook, State of Illinois, and legally described as follows,
to-wit:
Lot 302-C in Kensington Center-Resubdivision 20, being a Resubdivision
of Lots 302-B and 302-C in Kensington Center-Resubdivision 16 a subdivision of
Lots 302-B and 302-C in Kensington Center-Phase 3B and Lot 309 in Kensington
Center-Resubdivision 18 in part of the North West 1/4 of Section 35, Township
42 North, Range 11 East of the Third Principal Meridian according to the Plat
thereof recorded December 15, 1986 as Document No. 8660187, in Cook County,
Illinois.
Permitted Encumbrances:
1. Annual maintenance assessment of Feehanville Drainage District under
Law Docket Number 5001400.
2. Note: A letter from the Illinois Department of Transportation states
that Lot 302-C is subject to flood risk.
3. Easement in favor of the Feehanville Drainage Ditch as granted by
Knesington Center Phase Three B recorded November 17, 1982 as Document
26415042.
(Affects the southerly portions of Lots 302-C).
4. Easement in, upon, under, over and along the northeasterly 10 feet of
Lot 302-C to install and maintain all equipment for the purpose of
serving the land and other property with telephone, electric service and
cable service, together with right of access to said equipment as
created by Plat to the Commonwealth Edison Company and Central Telephone
and Cablenet, Inc. recorded November 17, 1982 as Document 26415042.
5. Note: The Plat of Kensington Center Resubdivision Twenty recorded
December 15, 1986 as Document 86600187 and the Plat of Kensington Center
Resubdivision Sixteen recorded March 29, 1985 as Document 27493606 and
filed as Document LR3427339 and the Plat of Kensington Center Phase
Three-B recorded November 17, 1982 as Document 26415042 states that this
subdivision is located within 500 feet of a surface drain or water
course.
6. A 20 foot easement to the Village of Mt. Prospect for ingress and
egress as granted by the Kensington Resubdivision Twenty recorded
December 15, 1986 as Document 86600187.
(Affects the northerly 20 feet of the southerly 60 feet, and the
easterly 20 feet of the westerly 160 feet of Lot 302-C)
7. Easement in favor of the Village of Mt. Prospect, its successors and
assigns, in all platted easement area, for the installation, operation,
maintenance, relocation, renewal or removal of underground water main
appurtenances, underground storm sewers and swales, and underground
sanitary sewers for the purpose of serving the land as granted on the
Plat of Kensington Resubdivision Twenty recorded December 15, 1986 as
Document 86600187 and the Plat of Kensington Center Resubdivision
Sixteen recorded March 29, 1985 as Document 27493606 and filed as
Document LR3427339.
(Affects the westerly 20 feet of the easterly 30 feet and the northerly
part of the northwesterly 10 feet of Lot 302-C)
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8. Easement in favor of Opus Designers, Builders, Developers, Inc. for the
construction, operation, maintenance, repair and replacement of storm
water detention ponds and related ancillary facilities, together with
right of access over, across, upon, under and through all areas platted
as granted on Plat of Kensington Resubdivision Twenty recorded December
15, 1986 as Document 86600187 and as granted on Plat of Kensington
Center Resubdivision Sixteen recorded March 29, 1985 as Document
27493606 and filed as document LR3427339 and granted on Plat of
Kensington Center Phase Three B recorded November 17, 1982 as Document
26415042.
(Affects the northeasterly portion of Lot 302-C)
9. Easement in, upon, under, over and along the southeasterly 10 feet of
the northeasterly 20 feet of lot 302-C of the land to install and
maintain all equipment for the purpose of serving the land and other
property with gas service, together with right of access to said
equipment, as created by grant to Northern Illinois Gas Company recorded
December 23, 1982 as Document 26447681, and as shown on Plat of
Kensington Center Resubdivision Twenty recorded December 15, 1986 as
Document 86600187 and as shown on Plat of Kensington Center
Resubdivision Sixteen recorded March 29, 1986 as Document 27493606 and
filed as Document LR3427339.
10. Drainage, Recreation and Access Easement Agreement dated December 17,
1982 and recorded March 7, 1983 as Document 26526919, and filed as
Document LR3427339 made by and among Opus Corporation, American National
Bank and Trust Company of Chicago as Trustee under Trust Agreement dated
February 10, 1979 and known as Trust Number 45771, Northern Illinois Gas
Company and the Village of Mt. Prospect.
Also shown on Plat of Kensington Center Resubdivision Twenty recorded
December 15, 1986 as Document 86600187.
(Affects the southerly and east lines of the land).
11. Declaration of Industrial Standards and Protective Covenants dated
December 30, 1987 and recorded December 30, 1987 as Document 87681752.
12. Appended to the Pat of Survey made by Albert O. Schmidt, dated August 6,
1990 Order Number 9007-302-C is a certification by the surveyor that
based upon an examination of the Federal Emergency Management Agency
Flood Insurance Rate Map Community Panel Number 1700540070B on file in
the Office of the Mt. Prospect Village Engineer, the area of the
property surveyed lying within the banks of the Feehanville Drainage
District lies in Zone B, the balance of the property surveyed lies in
Zone C. Effective Date of Map is April 15, 1981.
13. Any other matter that does not materially and adversely affect the
operation of Tenant's business at the Demised Premises.
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EXHIBIT "B"
PRELIMINARY CONTRACT DOCUMENTS
1. Revised specification for interior improvements dated May 7, 1992, prepared
by Tilton consisting of eight (8) pages with the exception to Note 1(a)
that two (2) 55-ton HVAC rooftop units are included and the substitution of
PVC for cast iron sewer and vent piping as allowed by applicable codes.
2. Memorandum regarding site lighting dated April 27, 1992, prepared by
Tilton.
3. Proposal letter from Landlord to Tenant dated May 1, 1992.
4. Drawings prepared by Tilton dated April 23, 1992, constituting of sheets
A-1, A-2, A-4, A-5, F-1, M-1, M-2, E-1, E-2 and E-3.
5. Allowance items set forth on Exhibit "D."
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EXHIBIT "C"
WORKING DRAWINGS
(To be attached pursuant to the
provisions of Article II of the Lease.)
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EXHIBIT "D"
ALLOWANCES
ERO Industries, Inc.
585 Slawin Court
1. Carpeting (III I.1.) $20,000/SY x 3050 SY = $61,000.00
2. Millwork (III L.1-11.) including hardwood sills = $25,000.00
3. Building signage (III A.1.) = $ 3,000.00
4. Landscape lighting (III A.2.) = $ 4,380.00
5. Outdoor patio (III A.3.) = $12,800.00
6. Vinyl wallcovering (III J.4.) = $ 1,050.00
7. Transparency light wall (III M.4.) = $ 4,000.00
8. Stone borders (III N.2.) = $ 2,000.00
9. Preaction fire protection system = $10,000.00
10. Overhead panel door with automatic operator = $ 1,200.00
11. Glass entry door and enclosure (III D.2.) = $ 3,780.00
12. Glass lights (III E.2.) = $10,350.00
13. Aluminum frame windows (III E.3.) = $ 6,400.00
14. Finish hardware (III F.1.) = $15,000.00
15. Closet door hardware (III F.2.) = $ 560.00
16. Ceramic tile flooring (III I.3.) = $ 3,840.00
17. Access floor (III I.4.) = $ 7,250.00
18. Ceramic wall tile (III J.4.) = $ 2,040.00
19. Miniblinds (III K.1.) = $ 5,070.00
20. Telephone and data wiring = $20,000.00
In the event the Working Drawings to be prepared and furnished by Tenant
pursuant to Article II of this Lease Agreement reflect items not contemplated
by (or are inconsistent with) the Preliminary Contract Documents and such items
cause the aggregate price allowances set forth above to be exceeded or result
in any other increase in cost to Landlord, Landlord shall not proceed with
construction and installation of Landlord's Improvements unless and until
Landlord has notified Tenant thereof and Tenant has approved such excess price
or increased cost. If Tenant does not approve such excess price or increased
cost, Landlord shall construct and install Landlord's Improvements in
substantial accordance with the Preliminary Contract Documents and the
provisions of Article II of this Lease Agreement. If Tenant does approve such
excess price increased cost, Landlord shall construct and install Landlord's
Improvements in substantial accordance with the Working Drawings and the
provisions of Article II of the Lease Agreement and Tenant shall reimburse
Landlord in the manner provided in the last paragraph of Section 2.1 of the
Lease Agreement. Any delay occasioned by Tenant's approval or disapproval of
such excess price or increased cost shall constitute an Excused Delay.