EXHIBIT 10.3
OFFICE LEASE
THIS LEASE is made as of August 1, 1992, between Illinois Institute of
Technology, an Illinois not-for-profit corporation (the "Landlord"), and DONLAR
CORPORATION (the "Tenant") .
ARTICLE 1
DEMISED PREMISES AND TERM
A. Specific Locations and Terms. Subject to the terms, covenants
and agreements herein contained, Landlord does hereby demise and lease to Tenant
and Tenant hereby accepts the following spaces in the building commonly known as
Building 90, Moffett Campus, 6502 Archer Road, Bedford Park, Illinois ("Building
90").
(1) that certain space located on the second floor of Building 90
(the "Building 90 Space"), consisting of approximately 822 square
feet identified by cross-hatching on the floor plan attached
hereto as Exhibit A, for a term commencing on August 1, 1992 and
ending on July 31, 1994, unless sooner terminated as provided
herein or extended as provided in Article 23.
ARTICLE 2
RENT
A. Rent During the Term of this Lease, Tenant shall pay rent for
the Premises as follows:
(1) for the Building 90 Space, Twelve Thousand Three Hundred
Thirty and 00/100 Dollars ($12,330.00) per annum ($15.00 per
square foot per annum), which shall be payable in equal monthly
installments of One Thousand Twenty Seven and 50/100 Dollars
($1,027.50);
(2) as used in this Lease, the term "Rent" shall mean the rent
payable from time to time with respect to all of the Premises.
Rent shall be payable in advance on the first day of each and
every calendar month during the Term except that the first monthly
payment shall be paid in advance on the date Tenant executes this
Lease. If the Term ends on a day other than the first day of a
calendar month, then the portion of the rent for the first full
calendar month of the Term for which Rent is payable or the last
calendar month of the Term, as the case may be, shall be prorated
on the basis of 1/365th of the Rent (computed on an annual basis
for the year of the Term closest to the month for which the
proration is made) for each day of such fractional month.
B. Payment of Rent. Rent and all other amounts becoming due from
Tenant to Landlord hereunder shall be paid in lawful money of the United States
to Landlord at its Comptroller's Office located at 3300 South Federal Street,
Chicago, Illinois 60616 or as otherwise designated from time to time by written
notice from Landlord to Tenant. The payment
of rent hereunder is independent of each and every other covenant and agreement
contained in this Lease and shall be payable without any prior demand therefor
and without any deductions or set-offs whatsoever.
C. Interest on Overdue Payments. All rent and any other amounts
owed by Tenant to Landlord under this Lease shall be paid within five (5) days
of the due date. After said five days' grace period all such amounts shall bear
interest from the date due until the date paid at a rate equal to 2% (two
percent) per annum above the Reference Rate, or at the maximum legal rate,
whichever is lower. For purposes of this Lease, the term "Reference Rate" shall
mean the rate of interest announced from time to time by Continental Illinois
National Bank and Trust Company of Chicago, at Chicago, Illinois, as its
reference rate, changing as and when said reference rate changes.
ARTICLE 3
USE
A. Permitted Uses. Tenant shall use and occupy the Premises for
office and laboratory purposes and for no other purpose whatsoever. Tenant shall
not use or permit upon the Premises anything that will invalidate any policies
of insurance now or hereafter carried on the Building. Tenant will pay all extra
insurance premiums which may be caused by the use which Tenant shall make of the
Premises. Tenant will not use or permit upon the Premises anything that may be
dangerous to life or limb. Tenant will not in any manner deface or injure the
Building or any part thereof or overload the floors of the Premises. Tenant will
not do anything or permit anything to be done upon the Premises in any way
tending to create a nuisance, or tending to disturb any other tenant or occupant
of the Building or the occupants of neighboring property or tending to injure
the reputation of the Building. Tenant will promptly and fully comply with all
governmental, health and police requirements and regulations respecting the
Premises. Tenant will not use the Premises for lodging or sleeping purposes or
for any immoral or illegal purposes. Tenant shall not conduct nor permit to be
conducted on the Premises any business which is contrary to any of the laws of
the United States of America or of the State of Illinois or the Village of
Bedford Park, Illinois. Tenant shall not at any time manufacture, sell, use or
give away, and shall not at any time permit the manufacture, sale, use or gift
of any alcoholic liquors or controlled substances on the Premises. Tenant shall
not at any time sell, purchase or give away or permit the sale, purchase or gift
of, food in any form on the Premises. Notwithstanding the foregoing, if Tenant
makes a written request of Landlord as to whether any proposed use Tenant shall
desire to make of or conduct within the Premises will invalidate any policies of
insurance carried by Landlord on the Premises or the Building or will increase
the rate of insurance on the Premises or on the Building, Landlord shall, within
thirty (30) days of such request, inform Tenant as to whether such proposed use
will have either or both of such effects. If Landlord does not so inform Tenant,
such use shall be deemed not to invalidate or increase the premiums on any
policies of insurance and, so long as Landlord does not notify Tenant that such
use is not permitted pursuant to this Article 3, Tenant shall be free to conduct
such use without becoming obligated for paying any extra insurance premiums or
supplying any substitute policies of insurance.
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B. Hazardous Substances. If Tenant is using any hazardous
substance on the Premises, Tenant shall notify Landlord of such use and shall
identify to Landlord the hazardous substance. Tenant shall establish and
maintain a system for the disposal of chemical wastes that is safe and
environmentally acceptable. Tenant shall bear the full responsibility to track
and account for the hazardous chemicals and wastes from the time they are
generated until their ultimate disposal. This shall be accomplished according to
applicable federal and state laws, such as (but not limited to) the Resources
Conservation and Recovery Act 6 (RCHA) of 1976, the Hazardous and Solid Waste
Amendments (HSWA) of 1980, the Superfund Amendments and Reauthorization Act
(SARA) of 1986, and the Illinois Environmental Protection Act, pursuant to 35
Illinois Administrative Code. Landlord in no way accepts any ownership,
responsibility, or liability for said chemicals. Failure to comply with the
requirements of this clause shall have the right to cure that default pursuant
to Section 20 of this Lease. Tenant shall notify Landlord's Health and Safety
Officer of all hazardous substances brought into or stored on the Premises. For
purposes of this Lease, "hazardous substances" shall include those substances
defined as hazardous by the U.S. Environmental Protection Agency, radioactive
substances and any other substances which would pose a threat to person,
property or the environment.
No hazardous wastes, hazardous substances, regulated substances, fumes,
sound, vibration, or radiation in any form are presently being or during the
term of this Lease shall be discharged, emitted or released, by Landlord or
Tenant, into the Building from any source in excess of applicable workplace
exposure constraints imposed by OSHA.
Landlord shall exercise its best efforts to assure that, based on
hazardous waste, hazardous substance, and regulated substance information
supplied to Landlord by Tenant and other tenants in the Building, that during
the term of this Lease no activities involving incompatible hazardous wastes,
hazardous substances, or regulated substances will be conducted within a
proximity reasonably expected to result in any adverse reaction or consequences,
including but not limited to worker exposures in excess of any applicable
workplace exposure constraint imposed by OSHA, without notice of the potential
for such adverse occurrence to Tenant.
ARTICLE 4
SERVICES
A. Utility Services. Landlord shall furnish utility services to
the Premises at such time and in such amounts as Landlord deems reasonably
necessary for the comfortable use of the Premises as an office area. The utility
services to be provided by Landlord to the Premises shall include electricity,
steam heat and air conditioning. Landlord will use reasonable efforts to avoid
interruptions in the utility services to be provided hereunder, provided that
Landlord shall not be liable for interruptions caused by war, insurrection,
civil commotion, riots, acts of God, governmental action, repairs, renewal,
improvements, alterations, strikes, lockouts, picketing (whether legal or
illegal), and other labor disputes, accidents, inability of Landlord to obtain
fuel, supplies or utility services (after using reasonable efforts), restrictive
governmental laws and regulations, riots, insurrections, war, fuel shortages,
casualties, acts of God, acts of or circumstances caused by Tenant, unless
resulting from Landlord's failure to pay for such utility services (or by
Tenant's agents, employees, contractors, licensees or invitees, unless resulting
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from Landlord's failure to pay for such utility services) or any other cause or
causes beyond the reasonable control of Landlord. Any such interruption of
service shall never render Landlord liable to Tenant for damages or relieve
Tenant from performance of Tenant's obligation under this Lease. Landlord shall
not inhibit Tenant's access to telephone lines and services for purposes of
providing telephone service to the Premises.
B. Other Services. Landlord shall provide janitorial services to
the Premises and common areas of the Building at such times and to such extent
as Landlord deems reasonably necessary for the comfortable use, in Landlord's
opinion, of the Premises as an office area, but in any such event such services
shall be at the same level of quality as is generally provided by Landlord to
other tenants and occupants of the Building. If at time thereafter Tenant shall
be reasonably dissatisfied with respect to the level of quality of janitorial
services provided by Landlord, then Tenant shall notify Landlord specifying its
objections within ten (10) days notice to Landlord as Tenant's sole and
exclusive remedy, unless Landlord shall not have afforded Tenant the same level
of quality of janitorial services as is generally provided by Landlord to other
tenants and occupants of the Building, in which case Tenant may pursue any other
rights or remedies it may have at law or in equity.
ARTICLE 5
CONDITION OF PREMISES
No promise of Landlord to alter, remodel, repair or improve the
Premises or the Building and no representations respecting the condition of the
Premises or the Building have been made by Landlord to Tenant, other than as may
be contained herein. Tenant's taking possession of any portion of the Premises
shall be conclusive evidence as against Tenant that such portion of the Premises
were in good order and satisfactory condition.
ARTICLE 6
REPAIRS
A. Tenant Repairs. Except as otherwise provided in Article 9 of
this Lease and subject to the provisions of Article 7 of this Lease, Tenant
shall, at its sole cost and expense, keep the Premises in good order, repair and
tenantable condition at all times during the Term, ordinary wear and tear and
casualty excepted. Tenant shall promptly arrange with Landlord at Tenant's sole
cost and expense for the repair of all damages to the Premises and for the
replacement or repair of all damaged or broken glass, fixtures and appurtenances
within any reasonable period of time specified by Landlord. If Tenant does not
promptly make such arrangements, Landlord may, but need not, make such repairs
and replacements and the costs paid or incurred by Landlord for such repairs and
replacements (including Landlord's reasonable overhead) shall be deemed
additional Rent reserved under this Lease due and payable forthwith.
B. Landlord Repairs. Landlord may, but shall not be required so to
do, enter the Premises at all reasonable times, upon reasonable prior oral
notice (except in case of emergency), to make any repairs, alterations,
improvements or additions necessary for the safety, maintenance, repair,
preservation or improvement of the Building, or as Landlord may be
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required or requested to do by the Village of Bedford Park, by the order or
decree of any court or by any other proper authority or as a result of the
requirements of any other tenant or occupant of the Building. In the event
Landlord or its agents or contractors shall elect or be required to make
repairs, alterations, improvements or additions to the Premises or the Building,
Landlord shall be allowed to take into and upon the Premises all material that
may be required to make such repairs, alterations, improvements or additions
and, during the continuance of any of said work, to temporarily close doors,
entryways, public space and corridors in the Building and to interrupt or
temporarily suspend any services and facilities without being deemed or held
liable for damages to Tenant's property, business or person, and the Rent
reserved herein shall in no way abate while said repairs, alterations,
improvements or additions are being made, unless and to the extent the Premises
or any portion thereof become untenantable or such repairs, alterations,
improvements or additions unreasonably interfere with Tenant's ability to gain
access to or conduct its business in the Premises, but in no event shall Tenant
be entitled to maintain any set-off or counterclaim for damages of any kind
against Landlord by reason thereof. Landlord may, at its option, make all such
repairs, alterations, improvements or additions in and about the Building and
the Premises during ordinary business hours, but if Tenant desires to have the
same done at any other time, Tenant shall pay for all overtime and additional
expenses resulting thereof. Nothing contained in this Paragraph B shall be
construed as requiring Landlord to keep (i) the common elements, such as
entrances, stairways, lobbies, washrooms or corridors of the Building, (ii) any
landscaped areas outside the Building, (iii) any other areas, facilities or
appurtenances from time to time provided for use in common by Tenant and other
tenants or occupants of the Building, (iv) the structure or exterior portions of
the Building or (v) the utility systems of the Building (including mechanical,
electrical, plumbing, elevator, life safety or fire protection) in any
particular state of repair or condition, but if Tenant shall at any time be
reasonably dissatisfied with respect to the state of repair or condition of any
of the same, then Tenant shall notify Landlord specifying its objection to the
same and, if Landlord shall not have corrected the source of such objections
within thirty (30) days after such notice of any of the same, then Tenant shall
have the right to terminate this Lease upon not less than ten (10) days notice
to Landlord as Tenant's sole and exclusive remedy.
ARTICLE 7
ALTERATIONS
A. Tenant Alterations. Tenant shall not, without the prior written
consent of Landlord in each instance obtained, make any repairs, replacements,
alterations, improvements or additions to the Premises; provided, however, that
Landlord's consent shall not be required for minor electrical work, decorating,
cosmetic changes or repairs not in any case affecting the structure or exterior
appearance of the Building. In the event Tenant desires to make any alterations,
improvements or additions which require Landlord's consent pursuant to this
Article 7, or any repairs or replacements pursuant to Article 6 of this Lease
involving the structure or exterior appearance of the Building, Tenant shall
prior to commencing any such work:
(1) Submit to Landlord plans and specifications showing such work
in reasonable detail and obtain Landlord's prior written approval,
which approval shall not be unreasonably withheld and if notice of
approval or disapproval, as the case may be, shall not be
delivered by Landlord to Tenant within ten (10)
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business days after Landlord's receipt of such plans and
specifications the same shall be deemed approved;
(2) Provide for the benefit of Landlord and the Building such
security measures with respect to construction traffic, delivery
of materials and other similar issues as Landlord may reasonably
require, as well as all necessary permits evidencing compliance
with all ordinances and regulations of the Village of Bedford Park
or any department or agency thereof, and with the requirements of
all statutes and regulations of the State of Illinois or any
department or agency thereof;
(3) Provide Landlord with certificates of insurance in forms and
amounts reasonable and customary naming Landlord as an additional
insured when required by Landlord; and
(4) Comply with such other requests as Landlord may reasonably
make in connection with such work.
B. Contracts and Landlord's Reimbursement. All such work shall be
done at Tenant's expense by employees of or contractors hired by Landlord unless
Landlord gives its prior written consent (which consent shall not be
unreasonably withheld or delayed) to Tenant's hiring its own contractors or
using its own employees. All repairs, replacements, alterations, improvements
and additions shall be constructed in a good and workmanlike manner and only new
materials shall be used. Tenant shall promptly pay to Landlord or to Tenant's
contractors, as the case may be, when due, the cost of all such work and of all
decorating required by reason thereof. Tenant shall also pay to Landlord two
percent (2%) of this cost of such work to reimburse Landlord for all overhead,
fees and other costs and expenses arising from Landlord's involvement with such
work if Landlord's employees perform such work.
C. Indemnity. Tenant hereby agrees to protect, defend, indemnify
and hold Landlord, and its agents, officers and employees, the Building and the
Property harmless from and against any and all liabilities of every kind and
description which may arise out of or in connection with any repairs,
replacements, alterations, improvements or additions made by Tenant and shall at
all times keep the Premises and Building free from any and all mechanics' or
materialman's liens.
D. Tenant Obligations Upon Completion. Upon completing any of such
repairs, replacements, alterations, improvements or additions (provided the same
required Landlord's prior consent), Tenant shall furnish to Landlord
contractors' affidavits and full and final waivers of lien and receipted bills
covering all labor and material expended and used.
E. Landlord's Property. All alterations, improvements, additions,
repairs, or replacements, whether temporary or permanent in character,
including, without limitation, wall coverings, non-detachable carpeting and
other floor coverings, special lighting installations, built-in or attached
shelving or cabinetry and non-detachable mirrors, made by Landlord or Tenant in
or upon the Premises shall become Landlord's property and shall remain upon the
Premises at the termination of this Lease by lapse of time or otherwise without
compensation to
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Tenant (excepting only Tenant's movable office furniture, trade fixtures, office
equipment and other movable personal property). Notwithstanding the foregoing,
Landlord shall have the right to require Tenant to remove such alterations,
improvements, additions, repairs or replacements at Tenant's sale cost and
expense in accordance with the provisions of Article 16 of this Lease, unless
such items were installed in the Premises with Landlord's prior written consent
or were of a nature that Landlord's consent to make or install the same was not
required pursuant to Paragraph A of this Article 7.
ARTICLE 8
COVENANT AGAINST LIENS
Landlord's title is and always shall be paramount to the title of
Tenant. Nothing contained in this Lease shall authorize or empower Tenant to do
any act which shall in any way encumber Landlord's title to the Building or
Premises, nor in any way subject Landlord's title to any claims by way of lien
or encumbrance whether claimed by operation of law or by virtue of any expressed
or implied contract of Tenant. Tenant has no authority or power to cause or
permit any lien or encumbrance of any kind whatsoever, whether created by
operation of law, act of Tenant or otherwise, upon the Building or Premises, and
any and all liens and encumbrances created by act or omission of Tenant shall
attach only against Tenant's interest and shall in all respects be subordinate
to Landlord's title to the Building and Premises. If Tenant has not removed or
bonded over any such lien or encumbrance within thirty (30) days after written
notice to Tenant by Landlord, Landlord may, but shall not be obligated to, pay
the amount necessary to remove such lien or encumbrance, without being
responsible for making any investigation as to the validity or accuracy thereof,
and the amount so paid, together with all costs and expenses (including
reasonable attorneys' fees) incurred by Landlord in connection therewith, and
interest thereon at the rate set forth in Paragraph C of Article 2, shall be
deemed additional rent reserved under this Lease due and payable forthwith.
ARTICLE 9
DAMAGE OR DESTRUCTION BY FIRE OR CASUALTY
A. Landlord's Rights in Event of Damage or Destruction. If the
Premises or any material part of the Building that houses machinery or equipment
used in operation of the Building shall be damaged by fire or other casualty,
Landlord may elect:
(1) to terminate this Lease as of the date of the fire or casualty
by notice to Tenant within ninety (90) days after such date, or
(2) to proceed to repair and restore with reasonable promptness
the same (subject to reasonable delays for insurance adjustments
and delays of the nature described in Paragraph O of Article 31),
in which case this Lease shall not terminate. Notwithstanding
anything to the contrary herein set forth, Landlord shall have no
duty pursuant to this Article 9 to repair or restore any portion
of the alterations, additions or improvements owned or made by
Tenant in the Premises
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or to expend for any repair or restoration amounts in excess of
insurance proceeds paid to Landlord and available for repair or
restoration.
If Landlord elects to proceed pursuant to subparagraph (2) of this
Paragraph A, Landlord shall so notify Tenant within ninety (90) days after the
date of such fire or casualty, which notice shall contain Landlord's reasonable
estimate of the date on which the Premises will be ready for Tenant's occupancy
as evidenced by a certificate of occupancy issued by the Village of Bedford Park
or certificate of substantial completion issued by Landlord's architect for the
uses and with the services contemplated herein ("Reoccupancy Date"), and whether
Landlord does not reasonably believe it has sufficient insurance proceeds or
other resources to fully repair or restore the Building and Tenant's Premises.
In the event such estimate indicates that the Reoccupancy Date shall be more
than 150 days from the date of the fire or other casualty or Landlord's notice
indicates it does not have sufficient insurance proceeds or other resources to
fully repair or restore the Building and Tenant's Premises, Tenant shall have
the right to terminate this Lease as of the date of such casualty (as Tenant's
sole and exclusive remedy) by giving written notice thereof to Landlord not
later than thirty (30) days after Landlord's notice. If Landlord's estimate
indicates that the Reoccupancy Date will be within 150 days from the date of the
fire or casualty, Landlord's notice indicates it reasonably expects to have
sufficient insurance proceeds or other resources to fully repair or restore the
Building and Premises or if Tenant fails to exercise its right to terminate this
Lease, as aforesaid, this Lease shall remain in full force and effect; provided,
however, if the Premises are not so ready for Tenant's occupancy for the uses
and with the services contemplated herein by the Reoccupancy Date, Tenant, on
thirty (30) days prior written notice to Landlord, shall have the right to
terminate this Lease; provided, however, that if Landlord in fact substantially
completes such repairs or restorations to the Building and Premises within said
thirty (30) day period, Tenant's notice to terminate shall be of no force or
effect and this Lease shall remain in full force and effect.
B. Rent Abatement. In the event any such fire or casualty damage
is not caused by the act or neglect of Tenant, its agents or employees, but
renders the Premises untenantable, and if this Lease shall not be terminated
pursuant to the foregoing provisions of this Article 9 by reason of such damage,
then Rent shall abate on a per diem basis during the period beginning with the
date of such damage and ending with the date when Landlord tenders the Premises
to Tenant as being ready for occupancy. In the event that only a portion of
Premises is untenantable, such abatement shall be in an amount equal to the
total amount of Rent for such period multiplied by the ratio of the number of
square feet in the Premises that is not ready for occupancy from time to time to
the total number of square feet in the entire Premises. In the event of
termination of this Lease pursuant to this Article 9, Rent shall be apportioned
on a per diem basis and be paid to the date of the fire or casualty.
C. No Consequential Damage. In no event shall Landlord be liable
to Tenant for loss of profits or indirect, special or consequential damages
arising out of the partial or total damage to or destruction of the Premises or
the Building by fire or other casualty.
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ARTICLE 10
INSURANCE
A. Insurance to be Maintained by Tenant. Tenant shall maintain the
following policies of insurance during the entire Term with companies as
reasonably approved by Landlord, but with increases in limits of liability as
Landlord may from time to time reasonably request:
(1) Property. Insurance covering the full replacement value of all
t Tenant's fixtures and improvements including, but not limited
to, special wall and floor coverings, special lighting fixtures,
built-in cabinets and bookshelves and of all Tenant's contents,
furniture, equipment or other items of personal property on the
Premises against all risk of direct physical loss or damage,
including but not limited to, fire, lighting, sprinkler leakage,
water damage, vandalism and malicious mischief, theft, explosion,
and such other similar risks insured against under the typical
extended coverage form.
(2) Liability. Comprehensive general liability coverage for Tenant
and its agents and employees covering claims for personal injury,
including death, and property damage occurring in and about the
Premises under insurance policies offering coverage of not less
than One Million and no/100 Dollars ($1,000,000.00) per person and
per occurrence.
B. Evidence of Insurance. Tenant shall, prior to the Commencement
Date, furnish to Landlord certificates evidencing such policies of insurance.
Within thirty (30) days of receipt of a written request by Landlord (but in no
event more than once in each calendar year) Tenant shall provide Landlord with a
certificate of insurance evidencing that the insurance Tenant is obligated to
provide hereunder is currently in force.
C. Mutual Waiver of Subrogation. Landlord and Tenant agree to have
any and all property insurance policies issued to either of them contain a
clause providing that any release from liability of or waiver of claim for
recovery from the other party entered into in writing by the insured prior to
any loss or damage shall not affect the validity of said policy or the right of
the insured to recover thereunder, and providing further that the insured waives
all rights of subrogation which such insurer may have, against the other party.
Without limiting any release or waiver of liability or recovery contained in any
other provision of this Lease, but rather in confirmation in furtherance
thereof, each of the parties hereto waives any and all rights of action against
the other which may arise on account of damage to the Premises or Building or
either party's property located in the Premises or in the Building resulting
from fire or any other casualty of the kind covered by standard fire insurance
policies with extended coverage, regardless of whether or not, or in what
amounts, such insurance is now or hereafter carried by the parties.
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ARTICLE 11
CONDEMNATION
If the entire Building or land on which the Building is located shall
be taken or condemned for any public or quasi-public use or purpose, or conveyed
under threat of any such taking or condemnation, then the Term and this Lease
shall terminate upon the date when possession of the Building and land is taken
or conveyed to the condemning authority. If less than all, but any material part
of the Premises or Building or land on which the Building is located shall be
taken or condemned for any public or quasi-public use or purpose, or conveyed
under threat of any such taking or condemnation, or if any adjacent property or
street shall be condemned or improved in such manner as to require the use of
any part of the Premises or of the Building, the Term and this Lease, at the
option of Landlord, shall terminate upon the date when possession of the part so
taken or conveyed shall be taken or conveyed to the condemning authority for
such use or purpose. Landlord shall be entitled to receive the entire award with
respect to any such taking or condemnation without any payment to Tenant, Tenant
hereby assigning to the Landlord Tenant's interest therein, if any, but Rent
shall be apportioned as of the date of any such termination.
In the event that the Landlord does not elect to terminate the Term and
this Lease as provided in the preceding paragraph, this Lease shall continue and
Landlord will restore the Premises or Building; provided, however, that if the
Premises cannot in Tenant's reasonable opinion be restored to a tenantable
condition or size similar to that before such taking or if in Tenant's
reasonable opinion the Premises or any substitute Premises offered by Landlord
cannot be effectively used for the purposes contemplated herein, Tenant shall
have the right to terminate this Lease effective as of the date when possession
of the part so taken or conveyed shall be taken by or granted to the condemning
authority upon not more than thirty (30) days notice to Landlord given not more
than thirty (30) days after the date when possession is taken or granted. In the
event neither Landlord nor Tenant shall elect to terminate this Lease, as
aforesaid, and the Premises or a portion of the Premises is untenantable during
the period of restoration, all Rent under this Lease shall abate on a per diem
basis, with the amount of the abatement equal to the total amount of square feet
in the untenantable portion of the Premises to the total number of square feet
in the entire Premises.
ARTICLE 12
WAIVER OF CLAIMS AND INDEMNITY
A. Tenant's Indemnity. Tenant agrees to indemnify, defend and hold
Landlord harmless from and against any claim of liability or loss from personal
injury or property damage resulting from or arising out of the use and occupancy
of the Premises by Tenant, its agents or employees during the Term of this
Lease.
B. Limitation of Landlord's Liability. Except for any loss or
damage resulting from Landlord's negligence or more culpable conduct, including
negligence or more culpable conduct relating to Landlord's maintenance and
repair of the Building and its systems, Tenant releases Landlord and its agents
and employees from and waives all claims for, and Landlord
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shall not be liable for, (i) any damage occasioned by Landlord's failure to keep
the Building or the Premises or any part of any thereof in repair, nor for any
damage done or occasioned by or from plumbing, gas, water, sprinkler, steam or
other pipes or sewerage or the bursting, leaking or running of any pipes, tanks
or plumbing fixtures, in, above, upon or about the Premises; (ii) any damage
occasioned by water, snow or ice being upon or coming through the roof; (iii)
any damages arising from acts or neglect of any co-tenants or other occupants of
the Building or of any owners of adjacent or contiguous property; or (iv) any
theft or misappropriation of any of Tenant's personal property or trade fixtures
located from time to time in or on the Premises.
ARTICLE 13
NONWAIVER
No waiver of any condition expressed in this Lease shall be implied by
any neglect of Landlord to enforce any remedy on account of the violation of
such condition if such violation is continued or subsequently repeated, and no
express waiver by Landlord shall affect any condition other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated. No receipt of moneys by Landlord or its agent from Tenant
after the termination in any way of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given to Tenant prior to the receipt of such
moneys, it being agreed that after the service of notice or the commencement of
a suit or after final judgment for possession of the Premises, Landlord may
receive and collect any Rent or other sums due, and such payment shall not waive
or affect said notice, suit or judgment.
No waiver of any condition expressed in this Lease shall be implied by
any neglect of Tenant to enforce any remedy on account of the violation of such
condition if such violation is continued and subsequently repeated, and no
express waiver by Tenant shall affect any condition other than the time and in
the manner specifically stated, unless and to the extent expressly provided
otherwise herein, and no payment of Rent as provided herein shall be deemed to
be a waiver by Tenant of any of its other rights under this Lease, unless made
after the expiration of any time period during which any other right to Tenant
is required to be exercised.
ARTICLE 14
WAIVER OF NOTICE
Except as provided herein Article 15 hereof, Tenant hereby expressly
waives the service of any notice of intention to terminate this Lease or to
re-enter the Premises and waives the service of any demand for payment of Rent
or for possession and waives the service of any other notice or demand
prescribed by any statute or other law.
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ARTICLE 15
DEFAULT: LANDLORD'S RIGHTS AND REMEDIES
A. Default. The occurrence of anyone or more of the following
matters constitutes a default ("Default") by Tenant under this Lease:
(1) Failure by Tenant to pay any Rent within five (5) days after
the due date;
(2) Failure by Tenant to pay, within fifteen (15) days after
notice thereof from Landlord to Tenant, any other moneys required
to be paid by Tenant under this Lease;
(3) Failure by Tenant to observe or perform any of the covenants
in respect of assignment and subletting set forth in Article 24;
(4) Failure by Tenant to cure forthwith, immediately after receipt
of notice from Landlord, any hazardous condition which Tenant has
created in violation of law or of this Lease;
(5) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure
shall continue for thirty (30) days after notice thereof from
Landlord to Tenant, unless such failure cannot reasonably be cured
within said thirty (30) day period, in which case a Default shall
be deemed to have occurred only if Tenant has not commenced said
cure with said thirty (30) day period, or does not continue to
diligently pursue the cure of such failure with the shortest time
reasonably possible thereafter or does not in all events cure such
failure within 120 days after notice thereof from Landlord to
Tenant;
(6) The levy upon under execution or the attachment by legal
process of the leasehold interest of Tenant, or the filing or
creation of a lien in respect of such leasehold interest, which
lien shall not be released, bonded over or discharged within the
time period provided in Article 8;
(7) Tenant vacates or abandons the Premises or fails to take
possession of the Premises when available for occupancy (the
transfer of a substantial part of the operations, business, and
personnel of Tenant to some other location being deemed, without
limiting the meaning of the term "vacates" or "abandons", to be
vacation or abandonment within the meaning of this subparagraph
(7), unless Tenant thereafter continues to pay the Rent due under
this Lease);
(8) Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, or makes an assignment
for the benefit of creditors, or applies for or consents to the
appointment of a trustee or receiver for Tenant or for the major
part of its property;
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(9) A trustee or receiver is appointed for Tenant or for the major
part of its property and is not discharged within sixty (60) days
after such appointment; or
(10) To the extent permitted by Law, any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings for relief under any bankruptcy
law, or similar law for the relief of debtors, are instituted (a)
by Tenant or (b) against Tenant and are allowed against it or are
consented to by it or are not dismissed within sixty (60) days
after being instituted.
B. Landlord's Remedies. If a Default occurs, Landlord shall have
the rights and remedies hereinafter set forth, which shall be distinct, separate
or cumulative, at Landlord's option, and shall not operate to exclude or deprive
Landlord of any other right or remedy allowed it by law:
(1) Landlord may terminate this Lease by giving to Tenant notice
of Landlord's election to do so, in which event the Term of this
Lease shall end, and all right, title and interest of Tenant
hereunder shall expire on the date stated in such notice which
shall be no sooner than ten (10) days after Landlord's delivery of
such notice;
(2) Landlord may terminate the right of Tenant to possession of
the Premises without terminating this Lease by giving notice to
Tenant that Tenant's right of possession shall end on the date
stated in such notice, which shall be no sooner than ten days
after Landlord's delivery of such notice, whereupon the right of
Tenant to possession of the Premises or any part thereof shall
cease on the date stated in such notice; and
(3) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of Landlord hereunder by a suit or
suits in equity or at for the specific performance of any covenant
or agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all
moneys due or to become due from Tenant under any of the
provisions of this Lease.
C. Possession. If Landlord exercises either of the remedies
provided for in subparagraphs (1) and (2) of paragraph B of this Article 5,
Tenant shall surrender possession and vacate the Premises and immediately
deliver possession thereof to Landlord pursuant to the provisions of Article 16.
Landlord may re-enter and take complete and peaceful possession of the Premises,
with or without process of law, full and complete license so to do being hereby
granted to Landlord, and Landlord may remove all occupants and property
therefrom, using such force as may be necessary, without being deemed in any
manner guilty of trespass, eviction or forcible entry and detainer and without
relinquishing Landlord's right to Rent, additional rent, any other sums due
hereunder or any other right given to Landlord hereunder or by operation of law.
D. Rent Without Termination of Lease. If Landlord terminates the
right of Tenant to possession of the Premises without terminating this Lease,
such termination of
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possession shall not release Tenant, in whole or in part, from Tenant's
obligation to pay the Rent or any additional rent payable hereunder for the full
Term. In addition, Landlord shall have the right, from time to time, to recover
from Tenant, and Tenant shall remain liable for Rent, additional rent and any
other sums thereafter accruing as they become due under this Lease during the
period from the date of such notice of termination of possession to the stated
end of the Term.
Landlord may, but, unless otherwise required by law, shall be under no
obligation to, relet the Premises or any part thereof for the account of Tenant
for such rent, for such time (which may be for a term extending beyond the Term
of this Lease) and upon such terms as Landlord in Landlord's sole discretion
shall determine, and Landlord, unless otherwise required by law, shall not be
required to accept any tenant offered by Tenant or to observe any instructions
given by Tenant relative to such reletting. Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extent deemed by Landlord necessary or desirable and in connection therewith
change the locks to the Premises, and Tenant shall upon demand pay the cost
thereof together with Landlord's expenses of reletting. Landlord may collect the
rents from any such reletting and apply the same first to the payment of the
expense of reentry, redecoration, repair and alterations and the expenses of
reletting and second, to the payment of Rent or additional rent herein provided
to be paid by Tenant, and any excess or residue shall operate only as an
offsetting credit against the amount of Rent or additional rent due and owing or
as the same thereafter becomes due and payable hereunder, but the use of such
offsetting credit to reduce the amount of Rent or additional rent due Landlord,
if any, shall not be deemed to give Tenant any right, title or interest in or to
any credit on its indebtedness to Landlord in excess of the aggregate sum which
would have been paid by Tenant for the period for which the credit to Tenant is
being determined, had no Default occurred, and any such excess or residue shall
belong to Landlord solely.
No re-entry or repossession, repairs, alterations and additions, or
reletting by Landlord shall be construed as an eviction or ouster of Tenant or
as an election on Landlord's part to terminate this Lease, unless a written
notice of such intention is given to Tenant, or shall operate to release Tenant
in whole or in part from any of Tenant's obligations hereunder. Landlord may, at
any time and from time to time, sue and recover judgment for any deficiencies
from time to time remaining after the application from time to time of the
proceeds of any such reletting.
E. Damages Upon Termination of Lease. In the event of the
termination of this Lease by Landlord as provided for by subparagraph (1) of
paragraph B of this Article 15, Landlord shall be entitled to recover from
Tenant all the fixed dollar amounts of Rent accrued and unpaid for the period up
to and including such termination date, as well as all other additional rent or
sums payable by Tenant, or for which Tenant is liable or in respect of which
Tenant has agreed to indemnify Landlord under any of the provisions of this
Lease, which may be then owing and unpaid. Landlord may also recover all costs
and expenses, including court costs and attorneys' fees incurred by Landlord in
the enforcement of its rights and remedies hereunder. In addition, Landlord
shall be entitled to recover as damages for loss of the bargain and not as a
penalty (a) the aggregate sum which at the time of such termination represents
the excess, if any, of the present value of the Rent at the same annual rate for
the remainder of the Term as then in effect pursuant to the applicable
provisions of Article 2 or Article 23 of this Lease, over the then present value
of the then aggregate fair rental value of the Premises for the
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balance of the Term, such present worth to be computed in each case on the basis
of a discount rate equal to two percent (2%) per annum below the Reference Rate
in effect at the time Landlord delivers its notice pursuant to subparagraph (1)
of Paragraph B of this Article 15; and (b) any damages in addition thereto,
including reasonable attorneys' fees and court costs, which Landlord shall have
sustained by reason of the breach of any of the covenants .of this Lease other
than for the payment of Rent.
F. Bankruptcy. Notwithstanding anything contained in Paragraph A
(10) of this Article 15, in the event that Tenant shall be adjudged bankrupt, or
a trustee in bankruptcy shall be appointed for Tenant, Landlord and Tenant
agree, to the extent permitted by law, to request that the trustee in bankruptcy
shall determine within sixty (60) days thereafter whether to assume or reject
this Lease.
ARTICLE 16
SURRENDER OF POSSESSION
A. Tenant's Obligations on Termination of Possession. On or before
the date this Lease and the Term hereby created terminates, or on or before the
date Tenant's right of possession terminates, whether by lapse of time or at the
option of Landlord, Tenant shall:
(1) restore the Premises to the same condition as they were in at
the beginning of the Term, ordinary wear and tear or damage by
fire or other casualty excepted;
(2) remove those alterations, improvements or additions installed
for or during Tenant's occupancy, whether installed by Landlord or
Tenant, or acquired by Tenant from former tenants, which Landlord
shall request Tenant to remove, unless such items were installed
in the Premises prior to the date hereof, were installed with
Landlord's prior written consent or were of a nature that
Landlord's consent to make or install the same was not required
pursuant to Paragraph A of Article 7;
(3) remove from the Premises and the Building all of Tenant's
movable office furniture, trade fixtures, and other movable
personal property; ,
(4) surrender possession of the Premises to Landlord in a clean
condition free of all rubbish and debris; and
(5) surrender all keys of the Premises to Landlord and make known
to Landlord the combination of all locks on the Premises.
B. Failure to Surrender Possession. If Tenant shall fail or refuse
to surrender possession of the Premises to Landlord on or before the date
specified in Paragraph A of this Article 16, Landlord may forthwith re-enter the
Premises and repossess itself thereof as of its former estate and remove all
persons and effects therefrom, using such force as may be necessary, without
being guilty of any manner if trespass or forcible entry or detainer and, in
addition, may put the Premises in the condition required pursuant to said
Paragraph A and recover from Tenant Landlord's cost of so doing. Without
limiting the generality of the
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foregoing, Tenant agrees to pay Landlord, upon demand, the cost of restoring
the walls, ceilings and floors of the Premises to the same condition that
existed prior to the date of the commencement of the alterations, improvements,
or additions made by or for Tenant's occupancy (or a prior tenant's occupancy if
such alterations, improvements or additions were acquired by Tenant from a
former tenant) of the Premises, ordinary wear and tear or damage by fire or
other casualty excepted, unless such items were installed in the Premises prior
to the date hereof, were installed with Landlord's prior written consent or were
of a nature that Landlord's consent to make or install the same was not required
pursuant to Paragraph A of Article 70.
C. Failure to Remove Personal Property and Trade Fixtures. If
Tenant shall fail or refuse to comply with Tenant's duty to remove all personal
property or trade fixtures from the Premises and the Building on or before the
above-specified date, the parties hereto agree and stipulate that Landlord may
enter into and upon the Premises and may, at its election:
(1) treat such failure or refusal as an offer by Tenant to
transfer title to such personal property to Landlord, in which
event title thereto shall thereupon pass under this Lease as a
bill of sale to and vest in Landlord absolutely without any cost
either by set-off, credit allowance or otherwise, and Landlord may
retain, remove, sell, donate, destroy, store, discard, or
otherwise dispose of all or any part of said personal property or
trade fixtures in any manner that Landlord shall choose; provided,
however, that Landlord shall be solely liable for any claims of
liability or loss from personal injury or property damage
resulting from the manner in which any such personal property or
trade fixtures are removed, destroyed, discarded or otherwise
disposed of (but in no event shall Landlord be so liable to
Tenant); or
(2) treat such failure or refusal as conclusive evidence, on which
Landlord or any third party shall be entitled absolutely to rely
and act, that Tenant has forever abandoned such personal property
or trade fixtures, and without accepting title thereto, Landlord
may, at Tenant's expense, remove, store, destroy, discard or
otherwise dispose of all or any part thereof in any manner that
Landlord shall choose without incurring liability to Tenant or to
any other person; provided, however, that Landlord shall be solely
liable for any such personal property or trade fixtures are
removed, destroyed, discarded or otherwise disposed of (but in no
event shall Landlord be so liable to Tenant).
In no event shall Landlord ever become or accept or be charged with the
duties of a bailee (either voluntary or involuntary) of any personal
property or trade fixtures, and the failure of Tenant to remove all
personal property and trade fixtures from the Premises and the Building
shall forever bar Tenant from bringing any action or from asserting any
liability against Landlord with respect to any such property or
fixtures which Tenant fails to remove.
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ARTICLE 17
HOLDING OVER
Tenant shall pay to Landlord for each day Tenant retains possession of
the Premises or any portion thereof after the termination of this Lease, whether
by lapse of time or otherwise, an amount which is double the amount of rent per
day (computed on year of 365 days) based on the annual rate of Rent set forth in
Article 2 or Article 23, as the case may be, for the period in which such
possession occurs, and also shall pay all direct damages sustained by Landlord
on account thereof. The provisions of this Article 17 shall not operate as a
waiver by Landlord of any right of re-entry hereinbefore provided.
ARTICLE 18
COSTS, EXPENSES AND ATTORNEY'S FEES
In case Landlord shall, without fault on its part, be made a party to
any litigation commenced by or against Tenant, then Tenant shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by Landlord in
connection with such litigation. Tenant shall also pay all costs, expenses and
reasonable attorneys' fees that may be incurred or paid by Landlord in enforcing
any of Tenant's covenants and agreements in this Lease. In case Tenant shall,
without fault on its part, be made a party to any litigation commenced by or
against Landlord, then Landlord shall pay all costs, expenses and reasonable
attorneys' fees incurred or paid by Tenant in connection with such litigation.
Landlord shall also pay all costs, expenses and reasonable attorneys' fees that
may be incurred or paid by Tenant in enforcing any of Landlord's covenants and
agreements in this Lease.
ARTICLE 19
COMPLIANCE WITH LAWS
Tenant shall operate the Premises in compliance with all applicable
federal, state, and municipal laws, ordinances and regulations and shall not
knowingly, directly or indirectly, make any use of the Premises or Building
which is prohibited by any such laws, ordinances or regulations.
ARTICLE 20
CERTAIN RIGHTS RESERVED BY LANDLORD
A. Landlord's Rights. Landlord shall have the following rights,
exercisable without notice (except as otherwise expressly provided in this
Paragraph A) and without liability to Tenant for damage or injury to property,
person or business and without affecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession or giving rise to any claim for
set-off or abatement of Rent or additional rent or any other amounts due and
payable by Tenant under this Lease:
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(1) To name the Building and, upon not less than thirty (30) days
prior written notice to Tenant, to change the Building's name or
street address.
(2) To install, affix and maintain any and all signs on the
exterior and interior of the Building.
(3) To reasonably designate and approve, prior to installation,
all types of carpeting, paint, wall hanging devices, window
shades, blinds, drapes, and other similar equipment, and to
control all internal lighting that may be visible from the
exterior of the Building.
(4) In the event that Landlord believes the suppliers of services
or goods to Tenant or other tenants located in the Building are
impeding access to the Building, interfering with the security of
the Building or significantly increasing the amount of traffic in
the Building, Landlord shall have the right to establish
reasonable written rules and regulations designating, restricting
or controlling the suppliers of services or goods to Tenant and
other tenants in the Building.
(5) On reasonable prior notice to Tenant, to show the Premises to
prospective tenants or purchasers at reasonable hours during the
Term and, if vacated or abandoned (within the meaning of Paragraph
A (7) of Article 15) during such period, to decorate, remodel,
repair or otherwise prepare the Premises for re-occupancy without
affecting Tenant's obligation to pay Rent.
(6) To retain at all times, and to use in appropriate instances,
keys to all doors within and into the Premises. No locks shall be
changed without the prior written consent of Landlord.
(7) To have and retain a paramount title to the Premises free and
clear of any act of Tenant purporting to burden or encumber it.
(8) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such
exclusive right shall not operate to exclude Tenant from the use
expressly permitted herein.
(9) To approve the weight, size and location of safes and other
heavy equipment and bulky articles in and about the Premises and
the Building (so as not to overload the floors of the Premises),
and to require all such items and furniture and similar items to
be moved into and out of the Building and Premises only at such
times and in such manner as Landlord shall direct in writing. Any
damages done to the Building or Premises or to other tenants in
the Building by taking in or putting out safes, furniture, and
other items, or from overloading the floor in any way, unless the
location of such items shall have been approved in writing in
advance by Landlord, shall be paid by Tenant. Furniture, boxes,
merchandise or other bulky articles shall be transported within
the Building only upon or by vehicles equipped with rubber tires
and shall be carried only in freight elevators and at such times
as the management of the Building shall require. Movements of
Tenant's property into or out of the Building and within the
18
Building are entirely at the risk and responsibility of Tenant,
and Landlord reserves the right to require permits before allowing
any such property to be moved into or out of the Building.
(10) To prohibit the placing of vending or dispensing machines of
any kind in or about the Premises without the prior written
permission of Landlord.
(11) To have access for Landlord and other tenants of the Building
to any mail chutes located on the Premises according to the rules
of the United States Post Office.
(12) To change the arrangement or-location of entrances,
passageways, doors and doorways, corridors, stairs, toilets and
other public service portions of the Building not contained within
the Premises or any part thereof, so long as no such change
materially, adversely affects Tenant's use of or access to
Premises.
(13) To close the Building after regular working hours and on
Saturdays, Sundays and legal holidays subject, however, to
Tenant's right to admittance, under such reasonable written
regulations as Landlord may prescribe from time to time, which may
include by way of example but not of limitation, that persons
entering or leaving the Building identify themselves to Building
personnel by registration or otherwise and that said persons
establish their rights to enter or leave the Building.
B. Landlord May Enter Premises. Landlord may enter upon the
Premises and may exercise any or all of the foregoing rights hereby reserved
without being deemed guilty of an eviction or disturbance of Tenant's use or
possession and without being liable In any manner to Tenant; provided, however,
that if Landlord enters upon the Premises for any reason whatsoever, Landlord
shall use reasonable efforts so as not to unreasonably interfere with Tenant's
use of or access to the Premises.
ARTICLE 21
ESTOPPEL
Tenant agrees that from time to time, upon not less than ten (10) days'
prior request by Landlord, Tenant or Tenant's duly authorized representative
having knowledge of the following facts shall deliver to Landlord or to a
prospective purchaser of the Building, or any interest therein, or to any
prospective or actual mortgagee or any trustee under any mortgage against the
Building, a statement in writing certifying (a) that this Lease is unmodified
and in full force and effect (or if there have been modifications that the Lease
as modified is in full force and effect); (b) the dates to which the Rent and
any other sums due under this Lease have been paid; (c) that, to the best of
such authorized representative's knowledge, neither Landlord nor Tenant is in
default under any provision of this Lease, or, if in default, the nature thereof
in detail; (d) that there are no offsets or defenses to the payment of Rent or
any such offsets or defenses, specifying such in detail; and (e) such other
matters as may reasonably be requested by Landlord, or such prospective
purchaser or the mortgagee or trustee under any such mortgage.
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ARTICLE 22
RULES AND REGULATIONS
Landlord reserves the right to make such reasonable written rules and
regulations as in Landlord's judgment may from time to time be needful for the
safety, care and cleanliness of the Building and Premises and for the
preservation of good order therein.
Tenant agrees to observe the reservations to Landlord in Article 20
hereof and agrees, for itself, its employees, agents, servants, clients,
customers, invitees, licensees and guests to observe and comply at all times
with the written rules and regulations as Landlord may from time-to-time make
for the Building, and that failure to observe and comply with such reservations,
rules and regulations shall constitute a Default under Article 15 of this Lease.
All such rules and regulations shall be applied uniformly against all
tenants and other occupants of the Building, including, without limitation,
Landlord, but any failure by Landlord to enforce any rules or regulations now or
hereafter in effect, either against Tenant or any other tenant in the Building,
shall not constitute a breach hereunder or waive any such rules and regulations.
ARTICLE 23
OPTION TO EXTEND TERM
A. Extension Option; Option Period. Provided that, at the time
Tenant delivers its notice pursuant to Paragraph B of this Article 23, and at
the commencement of the particular Option Period (as hereinafter defined) to
which such notice relates, this Lease is then in full force and effect and that
no Default then exists or no event which, with notice or the passage of time or
both, would constitute a Default then exists under this Lease, Landlord hereby
grants to Tenant options to extend the Term of the Building 90 space (each such
option to extend being hereafter called an "Extension Option") on the same
terms, conditions and provisions as contained in this Lease, except as otherwise
provided herein, commencing on the first day following the last day of the then
Term. Tenant acknowledges that each Extension Option granted to Tenant under
this Article 23 shall apply only to the Current Space.
B. Manner of Exercise. Any Extension Option pursuant to this
Article 23 shall be exercisable by written notice from Tenant to Landlord, given
no later than three (3) months prior to the expiration of the Term (as the same
may have then been extended under this Article 23), time being of the essence.
If not so exercised, such Extension Option and each and every other subsequent
Extension Option under this Article 23 shall thereupon expire.
C. Effect of Exercise. If Tenant has validly exercised its
Extension Option under this Article 23, (i) the Term of this Lease will be
extended for the applicable Option Period, (ii) this Lease will expire, if not
extended pursuant to this Article 23 or if not terminated earlier under any
other provisions of this Lease, upon the last date of the application Option
Period, and (iii) the term "Term" as used in this Lease shall mean the original
or previous Term of this Lease as so extended.
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D. Rent During Option Period. Notwithstanding any other provision
contained in this Lease, the Rent payable during such Option Period shall be
current rent increased four percent (4%).
ARTICLE 24
ASSIGNMENT AND SUBLETTING
A. Assignment and Subletting. Except as otherwise provided herein,
Tenant shall not, without the prior written consent of Landlord, (1) assign,
convey, mortgage, pledge or otherwise transfer this Lease, or any part thereof,
or any interest hereunder; (2) permit any assignment of this Lease, or any part
thereof, by operation of law; (3) sublet the Premises, or any part thereof; or
(4) permit the use of the Premises, or any part thereof, by any parties other
than Tenant, its agents, invitees and employees. Except in the case of an
assignment or subletting to a Permitted Assignee as provided in Paragraph E of
this Article 24, Tenant shall, by notice in writing, advise Landlord of its
intention from, on or after a stated date (which shall not be less than thirty
(30) days after date of Tenant's notice), to assign this Lease, or any part
thereof, or to sublet any part or all of the Premises for the balance or any
part of the Term. Tenant's notice shall include all of the terms of the proposed
assignment or sublease or in separate agreements) and shall state the
consideration therefor. Tenant's notice shall state the name and address of the
proposed assignee or sub-tenant and a true and complete copy of the proposed
assignment or sublease and any and all other agreements relating thereto shall
be delivered to Landlord with Tenant's notice.
B. Landlord's Right to Recapture. In the event that Tenant intends
to sublet all or any portion of the Premises or assign this Lease, other than to
a Permitted Assignee (as described in Paragraph E below), Landlord shall have
the right, to be exercised by giving written notice to Tenant within ten (10)
business days after receipt of Tenant's notice, to recapture all or such portion
of the Premises as is described in Tenant's notice and such recapture notice
shall, if given, cancel and terminate this Lease with respect to the space
therein described as of the date stated in Landlord's notice. If Tenant's notice
shall cover all of the Premises, and Landlord shall have exercised its foregoing
recapture right, the Term of this Lease shall expire and end on the effective
date of such assignment or sublease as fully and completely as if that date had
been herein definitely fixed for the expiration of the Term. If, however, this
Lease is hereby canceled with respect to less than the entire Premises, Rent
reserved herein and additional rent shall be adjusted on the basis of the number
of square feet retained by Tenant in proportion to the number of square feet
contained in the Premises, as described in this Lease, and this Lease as so
amended shall continue thereafter in full force and effect.
C. Landlord Election Not to Recapture. If Landlord, upon receiving
Tenant's notice with respect to any such space, shall not exercise its right to
recapture as aforesaid, and if no Default then exists or no event which, with
notice or passage of time or both, would constitute a Default then exists,
Landlord will not unreasonably withhold its consent to Tenant's assignment of
the Lease or subletting such space to the party identified in Tenant's notice;
provided, however, that in the event Landlord consents to any such assignment or
subletting, and as a condition thereto, Tenant shall pay to Landlord all profit
derived by Tenant from such assignment or subletting. For purposes of the
foregoing, profit shall be deemed to include, but
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shall not be limited to, the amount paid or payable to Tenant to effect or to
induce Tenant to enter into any such transaction, and the amount of all rent and
other consideration of whatever nature payable by such assignee or sublessee in
excess of the Rent or additional rent payable by Tenant under this Lease, after
deducting Tenant's documented and reasonable costs associated with the
assignment or subletting of the Premises. If a part of the consideration for
such assignment or subletting shall be payable other than in cash, the payment
to Landlord of its share of such non-cash consideration shall be in such form as
is satisfactory to Landlord.
Tenant shall and hereby agrees that it will furnish to Landlord upon
request from Landlord a complete statement, certified by an officer of Tenant,
setting forth in detail the computation of all profit derived and to be derived
from such assignment or subletting. Tenant agrees that Landlord, Agent or any
other authorized representative of Landlord shall be given access at all
reasonable times to the books, records and papers of Tenant relating to any such
assignment or subletting, and Landlord shall have the right to make copies
thereof. Tenant's profit due Landlord hereunder shall be paid to Landlord within
five (5) days of receipt by Tenant of payments made from time to time by such
assignee or sublessee to Tenant.
D. Limitations on Percentage Rent. If Landlord consents to any
sublease, assignment, or other agreement for the possession, use, occupancy or
utilization of the Premises, no such sublease, assignment or agreement shall
contain a provision providing for rental or any other payment to be based in
whole or in part on the net income or profits derived by any person from the
property leased (other than an amount based on fixed percentage or percentages
of gross receipts or sales) and any such provision shall render such sublease,
assignment or agreement absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization of any part
of the Premises.
E. Permitted Assignee. Notwithstanding anything contained herein
to the contrary, at any time and from time to time during the Term, Tenant may
without Landlord's consent assign this Lease or sublet any portion or all of the
Premises for all or any portion of the Term to any Permitted Assignee (as
hereinafter defined), so long as on the effective date of such assignment or
subletting no Default then exists or no event which, with notice or passage of
time or both, would constitute a Default then exists. In connection with an
assignment or subletting to a Permitted Assignee, Tenant shall not be obligated
to pay to Landlord any portion of the sublease profit described in Paragraph C
of this Article 24 derived by Tenant from such assignment or subletting (if
any). For purposes of this Lease, "Permitted Assignee" shall mean Tenant's
parent corporation, any subsidiary, any Affiliate (as hereinafter defined), or
any Successor (as hereinafter defined) of Tenant or any Affiliate or Successor
of any subsidiary, Affiliate or Successor of Tenant. For purposes of this Lease,
an "Affiliate" shall mean any corporation or any subsidiary of or Successor to
Tenant or Tenant's parent corporation or any subsidiary of or Successor to
Tenant's parent corporation has a direct or indirect ownership interest equal to
or greater than fifty percent. For purposes of this Lease, a "Successor" shall
mean any party succeeding to all or substantially all of the business or assets
of Tenant or any party resulting from a merger or consolidation with Tenant.
F. Liability and Obligations of Tenant. Any subletting of
assignment hereunder shall not release or discharge Tenant of or from any
liability, whether past, present or future, under this Lease, and Tenant shall
remain fully liable thereunder. Any subtenant or
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assignee shall agree, pursuant to a sublease or assignment agreement in a form
satisfactory to Landlord, to comply with and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease to the extent of
the portion of the Premises sublet or to which such assignment applies, and
Tenant shall deliver to Landlord promptly after execution, an executed copy of
each such sublease or assignment and an agreement of compliance by each such
subtenant or assignee. Tenant agrees to pay Landlord, on demand, all reasonable
costs incurred by Landlord (including reasonable fees paid to consultants and
attorneys) in connection with any request by Tenant for Landlord to consent to
any assignment or subletting by Tenant. Any sale, assignment, mortgage,
transfer, or subletting of this Lease which is not in compliance with the
provisions of this Article 24 shall be of no effect and void.
ARTICLE 25
NOTICE
All notices, requests, waivers and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given (i) when delivered in person, or (ii) three
days after deposit in the United States mail, sent by registered or certified
mail, return receipt requested, or (iii) one day after deposit with a commercial
"overnight" delivery service, in any case, with postage, registration and
certification fees or delivery charges prepaid:
If to Landlord, to:
Illinois Institute of Technology
IIT Center
10 West 33rd Street - Suite 224
Chicago, Illinois 60616
Attention: Joel Asprooth, Vice President for
Business and Finance
With a copy to:
Illinois Institute of Technology
IIT Center
10 West 33rd Street - Suite 224
Chicago, Illinois 60616
Attention: Mary Anne Smith, Vice President
and University Counsel
or to such other address or addressee as hereafter shall be furnished by a
notice sent in like manner by any party hereto to the other. Persons to whom
copies of notices are to be sent shall be sent copies for information purposes
only and such copies may be sent via regular mail, telecopy or any other means.
A failure to give or receive such copies shall not affect the validity of notice
given to a party.
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ARTICLE 26
SUCCESSIVE LANDLORDS
The term "landlord" as used in this Lease means only the owner or
owners from time to time of the Building of which the Premises form a part. In
the event of any sale or sales of the Building, Landlord in its sole discretion
may either (i) terminate this Lease by providing Tenant within thirty (30) days
prior written notice and thereafter be discharged of any further liability under
this Lease; or (ii) assign this Lease to the purchaser of the Building and if
any security deposit has been made by Tenant, Landlord may transfer the balance
of the security deposit to the purchaser of the Building and thereafter landlord
shall be discharged of any further liability with respect to the security
deposit.
ARTICLE 27
SUBORDINATION OF LEASE
Landlord may hereafter execute and deliver a mortgage or trust deed in
the nature of a mortgage against the Building, or any interest therein. If
requested by the mortgagee or trustee under any mortgage or trust deed, Tenant
will, at the option of such mortgagee or trustee, either (a) subordinate its
interest in this Lease to such mortgage or trust deed, and to any and all
advances made thereunder and to the interest thereon, and to all renewals,
replacements and extensions thereof, provided that such mortgagee or trustee
shall agree concurrently therewith, pursuant to a non-disturbance and attornment
agreement executed in recordable form, so long as no Default then exists or no
event which, with notice or passage of time or both, would constitute a Default
then exists under this Lease, that this Lease shall not be terminated nor shall
Tenant's use, possession or enjoyment of the Premises be interfered with nor
shall the leasehold estate granted in this Lease be affected in any way by the
giving of a deed in lieu of foreclosure or the foreclosure of or any action or
proceeding instituted under such mortgage or trust deed, or (b) make Tenant's
interest in this Lease superior. Subject to the immediately preceding sentence,
Tenant will execute and deliver such agreement or agreements as may be
reasonably required by such mortgage or trustee. In addition, if any mortgage or
trust deed is foreclosed or a deed in lieu of foreclosure is given to the
mortgagee or trustee thereunder (or its designee), (i) the liability of the
mortgagee or trustee thereunder or purchaser at such foreclosure sale or the
liability of a subsequent owner designated as landlord under this Lease shall
exist only so long as such trustee, mortgagee, purchaser or owner is the owner
of the Building and such liability shall not continue or survive after further
transfer of ownership; and (ii) upon request of such mortgagee or trustee,
Tenant will agree to become tenant and attorn to the new owner or landlord after
the purchase at any foreclosure sale thereunder or the giving of a deed in lieu
of foreclosure on the same terms and conditions of this Lease, and will execute
such instruments as may be necessary or appropriate to evidence such agreement,
provided that such mortgagee, trustee, new owner or landlord shall agree
pursuant to a non-disturbance and attornment agreement executed in recordable
form, so long as no Default then exists or event which, with notice or passage
of time or both, would constitute a Default then exists under this Lease, that
this Lease shall not be terminated nor shall Tenant's use, possession or
enjoyment of the Premises be interfered with nor shall the leasehold estate
granted in this Lease be affected in any way by the giving of a deed in
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lieu of foreclosure or the foreclosure of or any action or proceeding instituted
under such mortgage or trust deed.
ARTICLE 28
BROKERS
Tenant represents and warrants to Landlord that neither it nor its
officers or agents nor anyone acting on its behalf has dealt with any real
estate brokers in the negotiation or making of this Lease, and Tenant agrees to
indemnify and hold harmless Landlord from the claim or claims of any other
broker or brokers claiming to have interested Tenant in the Building or Premises
or claiming to have caused Tenant to enter into this Lease.
ARTICLE 29
QUIET ENJOYMENT
Subject to the provisions of this Lease, Landlord covenants that
Tenant, on paying the Rent and other amounts due and payable pursuant to this
Lease and' performing the covenants of this Lease on its part to be performed,
shall and may peaceably and quietly have, hold and enjoy the Premises for the
Term of this Lease.
ARTICLE 30
MISCELLANEOUS
Landlord and Tenant further covenant with each other that:
A. Remedies Cumulative. All rights and remedies of Landlord under
this Lease shall be cumulative and none shall exclude any other rights and
remedies allowed by law.
B. Meaning of Tenant; Gender. The word "Tenant" wherever used
herein shall be construed to mean Tenants in all cases where there is more than
one Tenant, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, men or women,
shall in all cases be assumed as though in each case fully expressed.
C. Binding Effect. Each of the provisions of this Lease and all
covenants, indemnities and agreements of the parties hereto shall extend to and
shall, as the case may require, bind or inure to the benefit, not only of
Landlord and of Tenant, but also of their respective heirs, legal
representatives, successors and assigns, provided this clause shall not permit
any assignment contrary to the provisions of Article 24 hereof.
D. Complete Agreement Modifications. All negotiations,
considerations, representations and understandings between Landlord and Tenant
are incorporated herein and may be modified or altered only by agreement in
writing between Landlord and Tenant, and no act or omission of any employee or
other agent of Landlord, Landlord's agent or any brokers of Landlord shall
alter, change or modify any of the provisions hereof. This Lease constitutes the
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entire agreement between Landlord and Tenant with respect to the Premises and
there are no representations, warranties, promises, agreements, conditions or
undertakings, oral or written, between Landlord or Tenant other than those set
forth herein. Any subsequent change, addition or alteration to this Lease shall
not be binding upon Landlord or Tenant unless in writing and signed by both
parties.
E. No Rights to Air and Light. No rights to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
F. Headings. Article or paragraph headings in this Lease are
solely for convenience of reference and shall not in any way limit or amplify
the terms and provisions hereof.
G. Applicable Law; Construction of Provisions. The laws of the
State of Illinois shall govern the validity, performance and enforcement of this
Lease. If any provision of this Lease is capable of two constructions, one of
which would render the provision invalid and the other of which would make the
provision valid, then the provision shall have the meaning which renders it
valid.
H. Recording. Neither this Lease, nor any memorandum, affidavit or
other writing with respect thereto, shall be filed for record by Tenant or by
anyone acting through, under or on behalf of Tenant, and the filing for record
thereof in violation of this provision shall make this Lease null and void at
Landlord's election.
I. Relationship of Parties. Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venture or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of rent now any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
J. Application of Payments. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder, in
such order and amounts, as Landlord its sole discretion, may elect.
K. Severability. If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease shall not be affected
thereby and will be in force to the full extent permitted by law.
L. Authorization. Tenant represents to Landlord that Tenant has
full power and authority to enter into this Lease and to perform all of its
obligations hereunder, and that execution and delivery of this Lease does not
and will not violate or conflict with any provisions of any law, contract,
mortgage, lien, instrument, agreement or judgment to which Tenant is a party or
which is binding by Tenant. If Tenant is a corporation, the persons executing
this Lease on behalf of such corporation hereby represent and warrant that they
have been duly authorized
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to execute this Lease for and on behalf of such corporation pursuant to a duly
adopted resolution of its board of directors or by virtue of its by-laws.
M. Individual Liabilities of Representatives. No person executing
this Lease in a representative capacity for Landlord or Tenant shall be held
individually liable hereunder in the absence of fraud, provided such person
acted with due authority and that intended principals are bound.
N. Limitations of Liability. Notwithstanding anything to the
contrary contained in this Lease, it is specifically understood and agreed that
the liability of Landlord hereunder shall be limited to the interests of
Landlord in the Building in the event of a breach by Landlord of any of the
terms, covenants and conditions of this Lease to be performed by Landlord. In
furtherance of the foregoing, Tenant hereby agrees that any judgment it may
obtain against Landlord shall be enforceable solely against Landlord's ownership
interest in the Building.
O. Force Majeure. If Landlord fails to perform timely any of the
terms, covenants and conditions of this Lease on Landlord's part to be
performed, and such failure is due in whole or in part to a strike, lockout,
picketing (whether legal or illegal) or other labor dispute, inability to
procure fuel, supplies or materials (after using reasonable efforts), failure of
power or other utility services (other than where caused by Landlord's
non-payment for such services), restrictive governmental laws and regulations,
riots, insurrections, war, fuel shortages, accidents, casualties, acts of God,
acts of or circumstances caused directly or indirectly by Tenant (or Tenant's
agents, employees, contractors, licensees or invitees) or any other cause or
causes beyond the reasonable control of Landlord, then Landlord shall not be
deemed in default under this Lease as a result of such failure. If Tenant is
prevented from performing timely any of the terms, covenants and conditions of
this Lease on Tenant's part to be performed due to a strike, lockout, picketing
(whether legal or illegal) or other labor dispute, inability to procure fuel,
supplies, materials (after using reasonable efforts), failure of power or other
utility services (other than where caused by Tenant's non-payment for such
services or failure to supply any such services otherwise required to be
supplied by Tenant, so long as the same is not caused by Landlord's non-payment
for such services), restrictive governmental laws and regulations, riots,
insurrections, wars, fuel shortages, accidents, casualties, acts of God, acts of
or circumstances caused directly or indirectly by Landlord (or Landlord's
agents, employees, contractors, licensees or invitees) or any other cause or
causes beyond the reasonable control of Tenant, then Tenant shall be excused
from the failure to perform any such term, covenant or condition for the time
during which any such cause or causes shall continue to exist before any Default
shall be deemed to exist; provided, however, that except as otherwise provided
herein, nothing contained in this paragraph shall relieve Tenant from the
responsibility of paying Rent, additional rent or any other monetary sums or
amounts due pursuant to this Lease during the period the performance of such
other term, covenant or condition is excused.
P. Time of the Essence. Time is of the essence of this Lease and
of each and all provisions thereof.
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Q. Counterparts. This Lease may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
ARTICLE 31
LANDLORD'S RIGHT TO SUBSTITUTE PREMISES
At any time during the Term, but only once during the Term, Landlord
may substitute for the Premises any other premises within the Building (herein
referred to as the "New Premises") provided the New Premises shall be similar to
the Premises in area and use for Tenant's purposes. In addition:
(1) Landlord shall reimburse Tenant for all of the reasonable
expenses of Tenant incurred by Tenant in moving from the Premises
to the New Premises and improving the New Premises so that they
are substantially similar to the then condition of the Premises;
(2) Such move shall be made during evenings, weekends, or
otherwise so as to incur the least inconvenience to Tenant;
(3) Landlord shall first give Tenant at least sixty (60) days'
notice before making any such substitution; and
(4) Tenant shall have the right to terminate this Lease at any
time prior to the effective date set forth in Landlord's notice
delivered pursuant to subparagraph (3) above, if Tenant
determines, in its sale discretion, that the New Premises are or
will be unacceptable provided such termination notice is given not
more than thirty (30) days after Landlord's notice is aforesaid.
ARTICLE 32
EFFECT OF EARLY TERMINATION OF LEASE
If at any time during the Term of this Lease Tenant shall have the
right and shall elect to terminate the Term or this Lease prior to its then
state expiration date, the rights and obligations of the parties hereto,
including without limitation, Tenant's obligation to pay Rent, additional rent
and other additional sums due and payable pursuant to this Lease after the
effective date of such termination, shall cease as of the applicable termination
date, but in no event shall either party be relieved of any liabilities or
responsibilities incurred or arising prior to the applicable termination date.
ARTICLE 33
DEFAULT UNDER OTHER LEASES
If the term of any other lease made by Tenant for any other premises in
the Building shall be terminated after the making of this Lease because of any
default by Tenant (beyond any
28
applicable notice and cure or grace periods) under such other lease, Landlord,
at its option, may terminate this Lease effective immediately upon written
notice of Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused this lease to be
executed on the date first above written.
LANDLORD: ILLINOIS INSTITUTE OF TECHNOLOGY
an Illinois not-for-profit corporation
By: /s/ Authorized Signatory
----------------------------------
Its: Vice President
---------------------------------
TENANT: DONLAR CORPORATION
By: /s/ Larry P. Koskan
----------------------------------
Its: President
----------------------------------
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