EXHIBIT 10.15 Lease Agreement dated September, 1998, between the Company and
Crossroads of Commerce III, relating to premises at 3501 Algonquin Road, Rolling
Meadows, Illinois.
LEASE
BETWEEN
DELPHI INFORMATION SYSTEMS, INC.
TENANT
AND
LA SALLE NATIONAL BANK, N.A.,
as Trustee under Trust Agreement dated
August 27, 1982 and known as Trust
Number 105272
LANDLORD
CROSSROADS OF COMMERCE III
ROLLING MEADOWS, ILLINOIS
60008
LEASE SUMMARY SHEET
DATE OF LEASE: September , 1998
TENANT: DELPHI INFORMATION SYSTEMS, INC.BROKER:
For Landlord - Mark C. Smith, CB Richard Ellis
For Tenant - Brian Borkan, BKB CommercialPREMISES
LEASED: Entire 5th Floor
Rentable Square Feet - 20,686 square feet
COMMENCEMENT DATE: October 1, 1998
TERMINATION DATE: September 30, 2003
NET RENT: For Entire Term: $1,344,590.04 payable in 60 monthly
installments as follows:
10/1/98 to 9/30/99 - 12 installments of $20,686.00
10/1/99 to 9/30/00 - 12 installments of $21,547.92
10/1/00 to 9/30/01 - 12 installments of $22,409.83
10/1/01 to 9/30/02 - 12 installments of $23,271.75
10/1/02 to 9/30/03 - 12 installments of $24,133.67
ELECTRICITY: Separately Metered to Tenant
TENANT'S PRO-RATA SHARE
OF ADDITIONAL RENT: Tenant pays 11.12% of all taxes and operating expenses,
in addition to net rent
PERMITTED USES: General office use
SECURITY DEPOSIT: None
CANCELLATION RIGHTS: On 10/1/01 upon payment of $100,000
On 10/1/02 upon payment of $50,000
THE LEASE SUMMARY IS FOR INFORMATIONAL PURPOSES ONLY. IN THE EVENT
ANY INFORMATION ON THE LEASE SUMMARY IS IN CONFLICT WITH ANY PROVISION
IN THE LEASE AGREEMENT, THE LEASE AGREEMENT SHALL PREVAIL.
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this day
of September 1998, by and between LA SALLE NATIONAL BANK, N.A., not
individually, but as Trustee under Trust Agreement dated August 27, 1982 and
known as Trust No. 105272, hereinafter referred to as "Landlord," and DELPHI
INFORMATION SYSTEMS, INC., a Delaware Corporation, licensed to do business in
the State of Illinois, hereinafter referred to as "Tenant."
LANDLORD HEREBY LEASES TO TENANT, and Tenant accepts the entire fifth (5th)
floor, hereinafter referred to as "Premises," said Premises consisting of 20,686
rentable square feet (which includes a 13% add-on factor), hereinafter referred
to as "Rentable Square Feet," situated in that certain office building known as
Crossroads of Commerce III, Rolling Meadows, Illinois 60008. Said building is
comprised of a total of 195,779 rentable square feet of office space, which
together with the land upon which it is located, the walkway, driveway, and
parking areas (including those areas conferred by certain easements) are
hereinafter collectively referred to as the "Building."
SECTION 1. TERM The term of this Lease shall be sixty (60) months
commencing on October 1, 1998, hereinafter referred to as the "Commencement
Date," and shall end on September 30, 2003, hereinafter referred to as the
"Termination Date," unless sooner terminated as herein provided, said term of
months hereinafter referred to as the "Term."
SECTION 2. NET RENT
A. Tenant agrees to pay to Landlord a consideration of One Million, Three
Hundred and Forty Four Thousand, Five Hundred and Ninety and 04/100 Dollars
($1,344,590.04), for the entire Term, hereinafter referred to as "Net
Rent", in Sixty (60) monthly installments as hereinafter set forth:
1. For the twelve (12) month period from October 1, 1998 to
September 30, 1999, the Tenant shall pay to the Agent of the Landlord
twelve (12) monthly installments of Twenty Thousand, Six Hundred and
Eighty Six and 00/100 Dollars ($20,686.00) each ($12.00 per square
foot);
2. For the twelve (12) month period from October 1, 1999 to
September 30, 2000, the Tenant shall pay to the Agent of the Landlord
twelve (12) monthly installments of Twenty One Thousand, Five Hundred
and Forty Seven and 92/100 Dollars ($21,547.92) each ($12.50 per
square foot);
3. For the twelve (12) month period from October 1, 2000 to
September 30, 2001, the Tenant shall pay to the Agent of the Landlord
twelve (12) monthly installments of Twenty Two Thousand, Four Hundred
and Nine and 83/100 Dollars ($22,409.83) each ($13.00 per square
foot);
4. For the twelve (12) month period from October 1, 2001 to
September 30, 2002, the Tenant shall pay to the Agent of the Landlord
twelve (12) monthly installments of Twenty Three Thousand, Two Hundred
and Seventy One and 75/100 Dollars ($23,271.75) each ($13.50 per
square foot); and
5. For the twelve (12) month period from October 1, 2002 to
September 30, 2003, the Tenant shall pay to the Agent of the Landlord
twelve (12) monthly installments of
Twenty Four Thousand, One Hundred and Thirty Three and 67/100 Dollars
($24,133.67) each ($14.00 per square foot).
B. Net Rent and Additional Rent (as hereinafter defined), and other
payments reserved and required under this Lease are collectively referred
to as the "Rental". Tenant is required to pay Rental to Landlord's agent,
Lincoln Atrium Management Company, 59 W. Seegers Road, Arlington Heights,
Illinois 60005 ("Agent"), or to such other agent or at such other place as
Landlord may from time to time hereafter designate in writing. All Rental,
except as otherwise specifically provided or hereafter otherwise
designated, shall be made payable as indicated hereinabove without notice
or demand, and without abatement, deduction, counterclaim or set off of any
kind.
C. All Rental shall be paid in advance on the first day of each and every
calendar month of the Term.
SECTION 3. ADDITIONAL RENT It is mutually understood that the Net Rent
does not include therein the Tenant's share of taxes (as hereinafter defined and
referred to as "Taxes") on the Building and operating expenses (as hereinafter
defined and referred to as "Operating Expenses"). Commencing on the
Commencement Date, the Tenant agrees to pay to Landlord Eleven point Twelve
percent (11.12%) ("Tenant's Pro-rata Share") of Taxes and Operating Expenses,
which sums are hereinafter collectively referred to as "Additional Rent"), in
addition to the Net Rent. The Tenant's Pro-rata Share is calculated by dividing
the Rentable Square Feet by 185,990, which is 95% of 195,779, the rentable
square feet of the Building. In the event the Building is more than 95%
occupied the Tenant's Pro-rata Share shall be recalculated.
A. Taxes are defined as those taxes levied or assessed against the
Building by any lawful authority for each calendar year of the Term,
regardless of whether or not the amount assessed or levied is payable in
that year or in a subsequent year. Specifically, Taxes shall mean all
taxes and assessments, of every kind and nature, special or otherwise,
including without limitation, general real property taxes, personal
property taxes imposed upon fixtures, machinery, apparatus systems and
appurtenances in, upon, or used in connection with the Building or the
operation thereof, sewer rents, water rents, special assessments, transit
taxes, any tax or excise on Rental, or any other tax (however described) on
account of Rental received for use and occupancy of any or all of the
Building, whether such Taxes are imposed by the United States, the State of
Illinois, the County of Cook, the City of Rolling Meadows (hereinafter
referred to as the "City"), or any other governmental authority or agency
or political subdivision. There shall also be included in Taxes all
reasonable fees and costs including, without limitation, attorneys' fees
paid or incurred by Landlord in seeking to obtain a reduction of or a limit
on an increase in Taxes or assessment therefor, and objecting to or
defending against the levy of same. If at any time during the Term the
method of taxation then prevailing shall be altered so that any tax,
assessment, levy, imposition, or charge or any part thereof, shall be
imposed upon Landlord (or upon the beneficiaries of Landlord) in place, or
partly in place, of any such Taxes or increase therein heretofore described
in this subparagraph, and/or the same shall be measured by or be based in
whole or in part upon the Building or the Rental or other income therefrom,
then all such taxes, assessments, impositions, levies, or charges or part
thereof shall be included in Taxes, to the extent that such items would be
payable if the Building were the only property and/or income of Landlord
(or the only property and/or ncome of the beneficiaries of Landlord)
subject thereto. Taxes shall not include any Federal, State, or local
municipal income taxes, capital stock taxes, or estate or inheritance
taxes, other than as specifically provided for above, or penalties or
interest on the late payment of installments of Taxes, or late filing of
any reports. From time to time, the Landlord, in its reasonable
discretion, shall take all reasonable and proper steps and procedures to
minimize Taxes, including, but not limited to, the contesting of or
objecting to increases of the determination of the fair market value of the
Building by the Cook County Assessor for real estate tax purposes and the
objecting to the tax rate imposed by the taxing authorities. The Landlord
does not warrant that any such steps or procedures will result in the
reduction or minimization of Taxes. In the event of a refund of Taxes is
received, said sum shall be applied to the reduction of Taxes in the year
of receipt.
B. Operating Expenses are defined as those expenses and costs incurred by
or paid on behalf of the Landlord and which, in accordance with generally
accepted accounting practice as applied to the operation, repair,
management and maintenance of first-class office buildings, amenities and
parking areas, are properly charged, expensed or amortized to such
ownership, operation, management and maintenance, including but not limited
to, window washing, utility charges, parking lot and common area cleaning,
office cleaning expenses, elevator repair and maintenance, interior and
exterior plant maintenance and landscaping, maintenance and repair, snow
removal, lease payments of leased equipment, insurance, wages and other
benefits of janitors, security personnel and services, management fees (not
to exceed 5% of total rental collected) and expenses including secretarial,
engineers and other on-site employees (including without limitation, the
amount of any social security taxes, unemployment insurance contributions
and fringe benefits), professional fees, and fuel costs. Operating
Expenses shall not include: (a) interest and principal payments on
mortgages and other debt service and ground lease payments, if any; (b)
franchise or income taxes imposed upon Landlord; (c) the cost or fees for
any lease, work or service performed in any instance for an individual
tenant and not for all tenants in common; (d) capital improvements and
replacements as a result of defects in construction or equipment or caused
as a result of fire, casualties or the exercise of the right of eminent
domain; (e) leasing commissions and costs, (f) attorneys' fees, costs and
disbursements and other expenses connected with ownership, organization,
partnership or corporate legal expenses incurred for matters not related to
the operation of the Building; (g) costs of Landlord for services sold to
tenants and for which Landlord is entitled or would ordinarily be entitled
to be reimbursed directly by tenants and not chargeable to all tenants as
Operating Expenses; (h) depreciation and amortization, except as allowed
pursuant to this sub section; (i) fees or other compensation paid to
subsidiaries or affiliates of Landlord for services on or to the Building,
but only to the extent that the costs of such services exceed competitive
costs of services of equal quality and quantity were they not so rendered
by a subsidiary or affiliate; (j) any compensation paid to clerks,
attendants or other persons in commercial for profit concessions operated
by Landlord in the Building; (k) advertising and promotion expenses; (l)
wages, salaries or other compensation paid to any executive employees above
the grade of Building manager; (m) brokerage commissions, legal costs
(including attorneys fees and disbursements) and other costs incurred in
connection with the sale of the Building; (n) all capital improvements
except to the extent they reduce Operatng Expenses; (o) any expenses for
which Landlord is reimbursed by insurance, third parties or otherwise; (p)
costs of acquiring or maintaining works of art; and (q) costs, fines,
penalties, legal fees or costs of litigation incurred due to late payments
of Taxes, utility bills and other costs incurred as a result of Landlord's
failure to make such payments when lawfully and rightly due.
C. The Tenant is required to pay its share of Additional Rent on a
monthly basis in installments equal to 1/12th of the Landlord's estimate of
the amount due from the Tenant in each calendar year of the Term. As soon
as practicable in each year during the Term and in the calendar year next
following the year in which this Lease expires, Landlord shall deliver to
Tenant a statement, hereinafter referred to as the "Annual Statement,"
certified by Landlord's chief financial officer to be true and correct,
setting forth the amount of Taxes and Operating Expenses paid or incurred
by Landlord during the immediately preceding year. The Landlord
will endeavor to supply the Annual Statement to the Tenant by October 1st
of each calendar year, but failure to supply the Annual Statement by said
date shall not affect the rights of the Landlord to receive Additional
Rent, or any other sums, due from the Tenant, nor shall the Landlord be
prejudiced in any way. Within thirty (30) days after the delivery of the
Annual Statement, Tenant shall pay to Landlord in one lump sum, Tenant's
Pro-rata Share of any increase in Taxes and Operating Expenses for the
immediately preceding calendar year in excess of the previous year's
estimate of Taxes and Operating Expenses paid by the Tenant. If the Taxes
and Operating Expenses for the immediately preceding calendar year are less
than the previous year's estimate paid by Tenant, Landlord shall refund
Tenant's Pro-rata Share of such excess within thirty (30) days after the
delivery of the Annual Statement. Tenant shall pay, additionally, a lump
sum equal to one-twelfth (1/12) of Tenant's annual share of the estimate
for then current calendar year's Taxes and Operating Expenses in excess of
the previous year's estimate, multiplied by the number of months then
elapsed between January 1 of the then current calendar year and the month
in which the Annual Statement is delivered to the Tenant. After delivery
of the Annual Statement, the monthly installments of Additional Rent due
thereafter shall be appropriately increased or decreased to 1/12th of the
said current calendar year's estimate. If the Term of this Lease ends on
other than the last day of a calendar year, Tenant's share shown on the
Annual Statement delivered after the end of the Term shall be prorated and
paid as aforesaid.
D. The Tenant, or its representative, shall have the right to examine and
audit the Landlord's books and records with respect only to the items
relating to Additional Rent, after providing the Landlord with a prior
written notice requesting such examination ("First Exception Notice"),
within ninety (90) days following the date of the mailing of the Annual
Statement to the Tenant. Such examination or audit shall be made at the
Landlord's place of business during normal business hours. Within thirty
(30) days after the completion of the audit, which must begin within ninety
(90) days of the First Exception Notice, the Tenant must deliver to the
Landlord a written statement setting forth any alleged exceptions to any
items or calculations specified in the Annual Statement, stating in
particularity the grounds for said exception ("Second Exception Notice").
Failure on the part of the Tenant to serve on the Landlord the First
Exception Notice and/or the Second Exception Notice, as provided for
hereinabove, all within the time periods specified, shall result in the
binding and conclusive presumption of an approval by the Tenant of the
computations and charges set forth in the Annual Statement, and such
Additional Rent charges shall be considered as final and accepted and
binding upon and by the Tenant and may not be contested at any time
thereafter. If the audit by the Tenant reveals an overstatement of an
amount chargeable to the Tenant as provided in the Annual Statement and the
Landlord agrees to such overstatement, the overstatement shall be applied
to the succeeding month's Rental, or if the Lease has expired, then such
amount shall be paid by the Landlord to the Tenant assuming there are no
sums due from the Tenant to the Landlord, or if there are any sums due from
the Tenant to the Landlord, then such amount shall be applied to the
payment of such sums. In the event the Landlord disagrees as to whether or
not there has been an overcharge in Additional Rent, the Tenant can elect
to submit the controversy to bining arbitration before the American
Arbitration Association, in accordance with the rules then prevailing,
within one year after the date of the Annual Statement. Failure to do so
will result in a conclusive and final waiver of the Tenant's right to
contest the charges set forth in the Annual Statement or in the Second
Exception Notice, and such Additional Rent charges shall be considered as
final and accepted and binding upon and by the Tenant. Regardless of the
provisions set forth in this subparagraph and whether or not the Tenant
properly contests any Additional Rent charges in any Annual Statement, the
Tenant must pay, when due, all Rental and/or contested Additional Rent
charges, subject to its right to secure a refund or credit therefor should
the Tenant prevail successfully in any of the procedures set forth herein.
In the event the Landlord agrees to an alleged overstatement, or if the
court determines there is in fact an overstatement, the Landlord shall pay
the Tenant's reasonable legal costs and
audit fees; however should the Landlord agreed overstatement be less than
three percent (3%) of the total amount due from the Tenant for Additional
Rent for the year in question, or should the court determine that there was
no overstatement, reasonable legal and audit fees incurred by the Landlord
shall be paid by the Tenant to the Landlord.
E. The provisions of this Section 3. shall survive the termination of
this Lease.
SECTION 4. SERVICES
A. Landlord shall furnish the following services, without any additional
charges to the Tenant:
1. Janitorial and Cleaning Services - In and about the Premises and
the common areas of the Building on a daily basis, Saturdays, Sundays,
and major holidays excepted.
2. Heating and Air Conditioning - To provide a temperature required,
in Landlord's reasonable judgment and consistent with the operation of
a first class office building, for comfortable occupancy of the
Premises under normal business operations, from 8:00 A. M. to 6:00 P.
M. Monday through Friday, Saturdays 8:00 A. M. to 2:00 P.M., Sundays
and major holidays excepted. If the use of excessive heat-generating
equipment by the Tenant in the Premises affects the temperatures
otherwise maintained by the air conditioning system for normal
business operations, and thereby requires in the reasonable judgment
of Landlord the modification of the air conditioning system, including
installation of supplementary air conditioning units or diffusers in
the Premises, Landlord reserves the right to perform such
modification; and all of the cost thereof shall be paid by Tenant to
Landlord at the time of completion of such modification.
3. Water - Water for drinking, lavatory, and toilet purposes in the
common areas.
4. Elevator Service - Twenty-four (24) hour automatic passenger
elevator service in common with other tenants. All freight elevator
service shall be subject to reasonable scheduling by the Landlord
after prior notice to Landlord by Tenant.
5. Window Washing - Window washing of all windows in the Premises
both inside and out, weather permitting, at intervals to be reasonably
determined by Landlord.
6. Parking - Reasonable, safe and adequate outdoor parking
facilities for the joint use of all tenants, on a first-come,
first-serve basis.
7. Landscaping - Landscaping of common areas and interior plantings.
8. Lighting - Lighting of the parking lot and common areas during
appropriate hours depending upon seasons of the year.
9. Security Services - A card access security system for after-hours
security, and a security guard stationed in the first floor lobby area
from 6:00 P.M. to 12:00 A.M. on Monday to Friday and from 7:00 A.M. to
3:00 P.M. on Saturday, holidays excepted.
10. Keys and access cards - Landlord will supply 25 Premises entry
keys and access cards on or before the Commencement Date.
B. Landlord will perform additional services on such terms and conditions
as may be mutually agreed upon by Landlord and Tenant. All charges for
such additional services shall be due and payable at the same time as the
installment of Rental with which they are billed, or if billed separately,
shall be payable within thirty (30) days after such billing. In case
Tenant fails to pay for any such additional services, Landlord may, without
notice to Tenant, discontinue any or all of such additional services.
C. Unless due to Landlord's negligence, Tenant agrees that Landlord shall
not be liable in damages, by abatement of Rental or otherwise, for failure
to furnish or delay in furnishing any services itemized above, when such
failure or delay in furnishing same is occasioned, in whole or part, by
repairs, renewals, replacements, or improvements; or by any strike, lockout
or other labor trouble; or by inability to secure electricity, gas, water
or other utility; or by any accident or casualty whatsoever; or by the act
or default of tenants or other parties; or by any law, order, ordinance, or
regulation of any municipal, local, state, or federal government, agency,
or authority; and/or by any other causes beyond the reasonable control of
Landlord. Nor shall any such discontinuance or such failure or delay of
services be deemed to give rise to an eviction, constructive or actual, of
Tenant, or give rise to any right on the part of the Tenant to terminate
this Lease.
SECTION 5. CONSTRUCTION AND ACCEPTANCE OF PREMISES
A. Within six (6) months from the Commencement Date, the Tenant will
submit to the Landlord a detailed plan of the changes and modifications to
the Premises it may desire. The Landlord will then retain the architectural
firm of Tsolinas/Moreno & Associates, to prepare detailed architectural,
engineering, electrical, and mechanical working drawing plans, hereinafter
referred to as the "Tenant Plans", for all work requested by the Tenant,
said work hereinafter referred to as "Tenant Improvements". The Tenant
Plans are subject to the written approval of the Landlord and the Tenant,
which both parties agree shall not be unreasonably withheld or delayed.
When the Tenant Plans have been fully approved by the Landlord and the
Tenant, they will be attached to this Lease, labeled Exhibit A, and made a
part hereof as if they were part of this Lease at the time of the execution
hereof.
B. The Landlord agrees to construct the Tenant Improvements and any
Additional Tenant Improvements (as defined hereinafter), in accordance with
the Tenant Plans and Change Orders (as defined hereinafter), at the sole
cost and expense of the Landlord, provided the cost and expense of
constructing same does not exceed the sum of One Hundred Thirty Four
Thousand Dollars ($134,000), which is based upon Six and 50/100 Dollars
($6.50) per Rentable Square Feet. The fees and costs of Tsolinas/Moreno &
Associates shall be considered part of the costs of the Tenant
Improvements. The general contractor constructing the Tenant Improvements
will be CFM Construction Company. The Landlord agrees that the aggregate
of all fees charged by the general contractor for profit, overhead and
supervision shall not exceed Fifteen Percent (15%) of the total cost of the
Tenant Improvements or the Additional Tenant Improvements.
C. Any additional work or changes requested by the Tenant and not a part
of the originally approved Tenant Plans, shall be set forth in written
orders (herein referred to as "Change Orders"), detailing the additional
work or changes and the cost and expense (and/or credits, if any) thereof.
All approved additional work and changes shall be referred to herein as
"Additional Tenant Improvements". All Change Orders must be signed and
approved by both the Tenant and Landlord.
D. In the event the total costs of the Tenant Improvements and Additional
Tenant Improvements are in excess of One Hundred Thirty Four Thousand
Dollars ($134,000), said excess shall hereinafter be referred to "Tenant's
Share of Tenant Improvements", and shall be paid to the Landlord by the
Tenant upon the determination of the actual aggregate costs. In the event
the costs of the Tenant Improvements and the Additional Tenant Improvements
do not exceed One Hundred Thirty Four Thousand Dollars ($134,000), the
Tenant shall not be entitled to the said savings in an abatement of Rental
nor in any other payment or compensation.
E. When the Tenant Improvements and/or Additional Tenant Improvements are
Substantially Complete, the Landlord shall so notify the Tenant in writing.
Not later than five (5) business days thereafter, the Tenant agrees to
inspect the Premises with the Landlord. Should the inspection reveal that
certain items of Tenant Improvements have not been completed or are not in
compliance with the Tenant Plans, a written statement will jointly be
prepared, and agreed to by both Landlord and Tenant, setting forth such
items, which statement is hereinafter referred to as the "Punch List". The
Landlord agrees to promptly complete and remedy the Punch List items. By
occupying the Premises, the Tenant formally accepts and acknowledges that
the Premises are in a condition complying with all of Landlord's covenants
hereunder, with the exception of those items, if any, on the Punch List and
any latent defects.
F. No promise of the Landlord to alter, remodel or improve the Premises
or the Building, and no representation respecting the condition of the
Premises or the Building has been made by the Landlord to the Tenant unless
the same is contained herein or made a part hereof.
G. The construction and installation of all Tenant Improvements and
Additional Tenant Improvements shall be subject to the approval of the
Village of Rolling Meadows, and any other governmental authority having
jurisdiction thereof.
H. The Landlord warrants that its contractors have not nor will they use
asbestos materials in the construction of the Building or the Tenant
Improvements.
I. All work by Landlord and its contractors in constructing the Tenant
Improvements shall conform to all applicable building codes and shall be of
first class quality and workmanship.
J. In the event the Tenant fails to submit detailed plans to the Landlord
for its desired Tenant Improvements within six (6) months from the
Commencement Date, the requirement on the part of the Landlord to pay for
the Tenant Improvements shall cease and no longer be of any force and
effect.
SECTION 6. USE Tenant shall use and occupy the Premises only for general
office use and for no other purpose without the prior written consent of
Landlord, which shall not be unreasonably withheld or delayed. Tenant's use of
the Premises shall at all times be in a high grade and reputable manner and
conform to all applicable laws, ordinances, regulations, and codes promulgated
by any and all governmental bodies and to the requirements of any applicable
fire rating bureau or other body exercising similar functions.
SECTION 7. REPAIRS Tenant will, at its own expense, keep the Premises in
good order, repair and tenantable condition at all times during the Term of this
Lease. Except for repairs and restorations that may be required to be made by
Landlord pursuant to the provisions of this Lease or for repairs and
replacements covered by Landlord's insurance, Tenant shall promptly and
adequately repair all damages to the Premises and replace or repair all damaged
or broken glass, fixtures, and appurtenances. If the Tenant does not do so,
Landlord may, after giving Tenant written notice, but need not, make such
repairs
and replacements, and Tenant shall pay Landlord the cost thereof plus ten
percent (10%) within thirty (30) days thereafter. Landlord may enter the
Premises at all reasonable times to make such repairs and replacements after
giving the Tenant reasonable notice. Landlord agrees to keep and maintain the
Building in a first-class operating condition and in compliance with all
applicable laws, ordinances, rules and regulations.
SECTION 8. TENANT ALTERATIONS After the Commencement Date and occupancy
of the Premises, Tenant shall not make installations, alterations or additions
in or to the Premises without submitting plans and specifications therefor to
Landlord and securing the prior written consent of Landlord in each instance,
which consent shall not be unreasonably withheld. In the event the costs of the
installations, alterations or additions do not exceed Ten Thousand Dollars
($10,000), and does not involve the Building's structure or systems, the Tenant
does not have to obtain the prior written consent of the Landlord, however it
must notify the Landlord of its intentions, submit to the Landlord its plans and
specifications, and follow all other requirements and procedures provided for
the Section 8. All such installations, alterations or additions shall shall be
done at the sole cost, risk and responsibility of Tenant. Prior to letting of
contracts, Tenant shall submit to Landlord copies of contracts and necessary
permits, building permits, certificates of appropriate insurance, names of
Tenant's contractors, amounts of the contracts with each of Tenant's
contractors, and adequate guarantees (in the sole discretion of the Landlord)
which will insure the payment of Tenant's contractors and/or subcontractors upon
completion of their work, and comply with such other requirements related to the
work as Landlord may impose. All installations, alterations and additions shall
be constructed in a good and workmanlike manner with only good grades of
materials equivalent to or better than Building standards, and shall comply with
all insurance requirements and with all ordinances and regulations of the City
and all other applicable governmental bodies having jurisdiction thereof. The
Tenant agrees to hold Landlord harmless from all claims, costs, damages,
liabilities, and expenses which may arise or be connected in any way with the
work. All alterations, improvements, and additions made by Tenant in or upon
the Premises shall, unlss Landlord requests their removal at the time of
approval, 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
Tenant, unless such improvements are by their nature removable such as removable
cubicles. Nothing herein shall give Landlord any interest in Tenant's office
furniture and equipment, which shall remain the property of the Tenant subject
to the provisions of Section 23. hereinafter. Tenant is permitted to install a
security alarm system in the Premises, and to remove same upon the end of the
Term.
SECTION 9. COVENANT AGAINST LIENS Tenant covenants and agrees not to
permit any lien of mechanics or materialmen to be placed against the Building or
any part thereof, and, in case of any such lien attaching, to immediately pay
off and remove the same. Tenant has no authority or power to cause or permit
any lien or encumbrance of any kind whatsoever, whether created by act of
Tenant, operation of law, or otherwise, to attach to or be placed upon the
Building or any part thereof. In the event of a lien being placed against the
Building, Tenant shall have the right to contest such lien provided it gives the
Landlord security, adequate in Landlord's sole discretion, to insure payment
thereof. Adequate security is defined as a deposit of monies by the Tenant with
the Landlord equal to one hundred and fifty percent (150%) of the amount of said
lien, to be held by the Landlord without obligation for payment of interest
thereon to Tenant, or in lieu of a deposit of monies, a bond or letter of credit
equal to one hundred and fifty percent (150%) of the amount of said lien, the
terms of which shall be satisfactory to the Landlord. The deposit, the bond or
letter of credit ("Security") will be returned to the Tenant, less reasonable
attorneys fees and other costs incurred by the Landlord and less any Rental due
from the Tenant, if any, when the Landlord receives satisfactory evidence that
the Building has been fully and completely released from the lien. The Landlord
shall have the right to apply the Security to the payment and release of the
lien at any time it determines or finds, in its sole and exclusive discretion,
that (i) the Tenant is not diligently contesting the claim, or (ii) a court or
arbitrator determines the lien is valid, even though the Tenant may have
appealed, or intends to appeal, such court order or award, (iii) the lien holder
initiates foreclosure proceedings against the Building, or (iv) a period of
three hundred and sixty-five (365) days have expired since the date of said lien
without release or adjudication thereof. Any funds remaining from the Security
after payment of the lien, shall first be applied to the payment of Landlord's
attorneys fees and other costs incurred as a result of this matter, then to the
payment of any Rental due from the Tenant to the Landlord, if any, and the
balance, if any, shall be paid to the Tenant within thirty (30) days after the
date of the release of the lien.
SECTION 10. WAIVER OF CLAIMS To the extent not expressly prohibited by
law, Tenant hereby waives all rights to recover from Landlord, Landlord's
Beneficiaries, and their officers, agents, servants, employees, and mortgagees,
for any damage or injury either to person or property sustained by Tenant or by
other persons, due to the Building or the Premises becoming out of repair, or
due to the happening of any accident or occurrence in or about the Building or
the Premises or any part thereof, unless such damage or injury was caused by the
negligence or wrongful intentional acts of the Landlord, its employees or
agents. This provision shall apply particularly (but not exclusively) to damage
caused by fire, water, snow, frost, steam, sewage, gas, sewer gas or odors, or
by the bursting or leaking of pipes (including the sprinkler systems), faucets
and plumbing fixtures. Tenant further agrees that all of its personal property
and fixtures installed upon the Premises shall be there at the risk of Tenant
only and that Landlord shall not be liable for any damage thereto or theft
thereof, unless the Landlord caused the damage or loss on account of its
negligent or intentional acts.
SECTION 11. PARKING AREA Tenant and its officers, employees, agents,
customers, and invitees shall have the nonexclusive right in common with
Landlord and all others to whom Landlord has or may hereafter grant rights to
use the parking areas of the Building; subject to such rules and regulations,
including reserved parking, as Landlord may from time to time impose; however,
in no event shall the Tenant be charged any sums of money for the privilege and
right to use the said parking facilities. Tenant agrees to abide by all rules
and regulations and to use its best efforts to cause its officers, employees,
agents, customers, and invitees to conform thereto. Landlord may at any time
close temporarily any part of the parking area to make repairs or changes to
prevent the acquisition of public rights in such area or to discourage
non-customers' parking, and may do such other acts in and to the parking area as
in its judgment may be desirable to improve the convenience thereof, so long as
Tenant will still have adequate parking available for its use. Tenant shall not
at any time interfere with the rights of Landlord and other tenants, their
concessionaires, officers, employees, agents, customers, and invitees to use any
part of the parking areas.
SECTION 12. RIGHTS RESERVED BY LANDLORD Landlord shall have the
following rights, exercisable with reasonable notice (except said rights may be
exercised without notice in emergency situations) and without liability to
Tenant for damage or injury to property, person, or business, and without
effecting an eviction, constructive or actual, or giving rise to claim for
set-off or abatement of Rental; however in exercising all such rights, the
Landlord shall use reasonable efforts to minimize interference with the Tenant's
conduct of business at the Premises:
A. To change the Building's name, provided thirty (30) days prior written
notice is given to Tenant, however the new name will not be a software
company that is a direct competitor of the Tenant;
B. To install, affix, and maintain any and all signs on the exterior
and/or interior of the Building and in the parking areas;
C. To show the Premises to prospective tenants at reasonable hours during
the last three (3) months of the Term;
D. To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the Building,
or any part thereof, which Landlord may deem necessary or which may be
required by the City or by any other governmental agency having
jurisdiction over the Building; and for such purposes to enter upon the
Premises and, during the continuance of any said work, to temporarily close
doors, entryways, public space, and corridors in the Building and to
interrupt or temporarily suspend Building services and facilities, provided
that Landlord will at all times use its best efforts to maintain reasonable
accessibility to the Premises, and to minimize any disruption of Tenant's
business. The Landlord shall give the Tenant reasonable advance notice (at
least 24 hours, which notice may be oral) of any required entry; however in
the event of a serious emergency, in the Landlord's discretion, advance
notice shall not have to be given;
E. To grant to anyone the exclusive right and privilege to conduct any
business in the Building, and such exclusive right and privilege will be
binding upon Tenant, provided such exclusive right shall not operate to
exclude Tenant from the use expressly permitted in Section 6 above;
F. To approve the weight, size, and location of safes, printing
machinery, computers, and other heavy equipment and articles in and about
the Premises and the Building and to require all such items and furniture
and similar items to be moved into and/or out of the Building and Premises
only at such times and in such manner as Landlord shall direct in writing.
Movements of Tenant's property into or out of the Building and within the
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;
G. To close the Building after the regular working hours and on
Saturdays, Sundays, and legal holidays, subject however, to Tenant's right
to admittance under such 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 a watchman,
by registration or otherwise, and that said persons establish their right
to enter or leave the Building;
H. To have pass keys to the Premises; and
I. To establish reasonable controls and rules for the movement of
packages, supplies, and all property in and out of the Building to insure
the proper maintenance, management, and security of the Building.
SECTION 13. TENANT COVENANTS Tenant agrees to observe the following
covenants and to comply with all existing rules and regulations and those
reasonable rules and regulations that Landlord may hereafter from time to time
make for the Building; however, it is agreed by the Tenant that the Landlord
shall not be liable in any way for any damage caused to it or its invitees or
employees, by the nonobservance by any of the other tenants of such similar
covenants in their leases or of rules and regulations provided for herein or in
other leases:
A. Tenant shall occupy and use the Premises during the Term hereof for
the purpose specified in Section 6. above and none other, and shall not
conduct itself, or permit its agents, employees or invitees to conduct
themselves, in the Premises or in the Building, in a manner inconsistent
with the character of the Building as an office building of the highest
class, or interfere with the comfort or convenience of other tenants;
B. Tenant shall not, without the prior written consent of Landlord,
exhibit, sell, or offer for sale on the Premises or in the Building any
article or thing except those articles and things essentially connected
with the stated use of the Premises by Tenant as set forth in Section 6
above;
C. Tenant will not make or permit to be made any use of the Premises
which, directly or indirectly, is forbidden by public law, ordinance, or
governmental regulation;
D. Tenant shall not sell or offer to sell or permit to be sold or offered
for sale in the Premises any alcoholic or other intoxicating beverage;
E. Tenant shall not display, inscribe, print, paint, maintain, or affix
on any place in or about the Building (or the parking lot or landscaped
area of the Building) any sign, notice, legend, direction, figure, or
advertisement, except on the doors of the Premises and on the Directory
Boards, and then only such name or names and matter, and in such color,
size, style, place, and materials, as shall first have been approved in
writing by Landlord; however this provision shall not restrict the Tenant
from including its name on any directory or suite signage, and does not
apply to signs within the Premises;
F. Tenant shall not advertise the business, profession, or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession, or activities, and
shall not use the name of the Building for any purposes other than that of
the business address of Tenant, and Tenant shall never use any picture or
likeness of the Building in any circulars, notices, advertisements, or
correspondence without Landlord's prior written consent;
G. Tenant shall not obstruct or use for storage or for any purpose other
than ingress and egress, the common and/or public areas of the Building;
H. No additional locks or similar devices shall be attached to any door
in the Premises or the Building without Landlord's prior written consent
and only upon the condition that Landlord shall have the keys to or
combination of such additional locks or devices;
I. No keys for any door other than those provided by Landlord shall be
made by Tenant; if more than twenty five keys for the entry door are
desired, Landlord will provide the same to the Tenant at the Tenant's cost;
J. Upon termination of this Lease or of Tenant's possession of the
Premises, Tenant shall surrender all keys and entry cards to the Premises
and the Building;
K. Tenant shall not install or operate any steam or internal combustion
engine, boiler, pressure vessel, machinery, refrigerating, or heating
device (except for kitchen appliances customarily used in offices), or air
conditioning apparatus in or about the Premises, or carry on any mechanical
business therein, or use the Premises for housing accommodations or lodging
or sleeping purposes, or do any cooking therein, or use any illumination
other than electric light, or use or permit to be brought into the Building
any flammable oils or fluids such as gasoline, kerosene, naphtha and
benzine, or any explosive, radioactive materials, or other articles
hazardous to life, limb, or property;
L. Tenant shall not do or permit anything to be done, or keep or permit
anything to be kept, in the Premises which would increase the fire or other
casualty insurance rate on the Building, or
which would result in the Landlord's insurance companies refusing to insure
the Building in amounts reasonably satisfactory to Landlord;
M. In the event that any use of the Premises by Tenant increases the cost
of insurance, Tenant shall pay such increased cost to Landlord on demand,
but such demand or acceptance of such payment shall not be construed as a
consent by Landlord to Tenant's such use, or limit Landlord's further
remedies under this Lease;
N. Tenant shall cooperate fully with Landlord to assure the effective
operation of the Building's air conditioning, heating, and ventilating
systems;
O. Landlord reserves the right to require that any alterations or
additions done by the Tenant be done using Landlord's designated
contractors or contractors approved by Landlord, provided such contractors
are market competitive;
P. Tenant shall not use lamps in the ceiling light fixtures or window
coverings of a color or style other than that approved in advance in
writing by Landlord or managing agent;
Q. The color of all paint and other decorating materials used by Tenant
on those portions of the Premises which are visible to the exterior shall
be approved in writing in advance by Landlord;
R. Tenant will not install on the windows facing the exterior or the
interior lobby any window coverings without the prior written consent of
Landlord;
S. Tenant shall keep the doors to the corridors closed except when in use
for ingress and egress, and Tenant shall not place or allow anything to be
placed against or near the doors to the corridors which may diminish the
light in or be unsightly from the corridors;
T. Tenant shall not hang drapes, blinds, or other window treatments
except in a color, style, and manner approved by Landlord;
U. Tenant shall not bring or permit to be in the Building any bicycle or
other vehicle, or dog (except in the company of a blind person), or other
animal or bird;
V. Tenant shall not make or permit any noise, vibration, or odor to
emanate from the Premises;
W. Tenant shall not do anything therein tending to create or maintain a
nuisance;
X. Tenant shall not disturb, solicit, or canvass any occupant of the
Building;
Y. Tenant shall not do any act tending to injure the reputation of the
Building; and/or
Z. Tenant represents, warrants, and covenants to Landlord that Tenant
shall at no time (a) use or permit the use of the Premises and/or the
Building for the generation, manufacture, production, storage, release,
discharge, or disposal of Hazardous Materials (as hereinafter defined)
except in accordance with Environmental Regulations (as hereinafter
defined); or (b) to transport Hazardous Materials to or from the Premises,
except in accordance with Environmental Regulations; or (c) perform any act
or action whatsoever which violates any Environmental Regulations; and/or
(d) allow or permit any other person or entity to do any of the above:
1. The term "Hazardous Materials" is defined as and includes,
without limitation, any flammable explosives, radioactive materials,
asbestos and asbestos containing materials, hazardous wastes,
hazardous or toxic substances, or related materials defined in the
Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. Sections 1801, et
seq.), the Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. Sections 6901, et seq.), and in the regulations adopted and
publications promulgated pursuant thereto, or any other federal,
state, or local environmental laws, ordinances, rules, or regulations
dealing with hazardous materials, excluding customary general office
and cleaning supplies.
2. The term "Environmental Regulations" is defined as all federal,
state, and local laws, including all zoning laws or ordinances, and
all regulations, codes, requirements, public and private land use
restrictions, rules and orders which relate to or govern Hazardous
Materials, and/or the environmental conditions in, on, under, or about
the Premises or the Building, in force at the time of the execution of
the Lease and at any time during the Term.
SECTION 14. UTILITY SERVICES AND MAINTENANCE
A. The Tenant shall be responsible for and shall pay for utility costs
incurred in connection with lighting, telephone and data, machinery, office
machines and equipment, and all other devices used by Tenant in the
operation of the Premises and the business of the Tenant (other than for
heating and air-conditioning which is paid by the Landlord). Such utility
costs shall be separately metered to the Tenant, and Tenant agrees to pay
such cost promptly.
B. Tenant shall make arrangements directly with the telephone company
servicing the Building for such telephone and data service to the Premises
as may be desired by Tenant, and Tenant shall pay the entire cost thereof.
C. If Tenant desires telegraphic, fiber optic, computer data, fax,
telephonic, burglar alarm, or signal service (which services shall be at
Tenant's sole expense), Landlord shall, upon request, and within ten (10)
working days of such request, direct where and how all connections and
wiring for such service shall be introduced and run. In the absence of
such directions, Tenant shall make no borings, cuttings, or install any
wires or cables in or about the Premises.
D. Unless due to Landlord's negligence, Tenant covenants and agrees that
Landlord shall in no event be liable or responsible to Tenant for any loss,
damage, or expense which Tenant may sustain or incur if either the quality
or character of electrical service is changed or if it is no longer
suitable for Tenant's requirements. Tenant covenants and agrees that at
all times its use of electric current shall never exceed its allocable
portion of the capacity of existing feeders to the Building or the Premises
or wiring or installation; and also that it shall make no alterations or
additions to the electric service or wiring to the Premises without the
prior written consent of the Landlord in each instance, which consent shall
not be unreasonably withheld.
SECTION 15. QUIET ENJOYMENT Landlord represents that it has full power
and authority to enter into this Lease. Provided Tenant performs and observes
all terms, conditions and agreements herein contained, Tenant shall have the
quiet possession of the Premises during the full Term of this Lease, including
any extension thereof.
SECTION 16. INDEMNITY
A. Tenant agrees to protect, indemnify, and save harmless the Landlord,
the Landlord's beneficiaries, their mortgagees, agents, tenants, servants,
contractors and employees, from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs, or expenses (including
without limitation reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Landlord by reason of (a) any accident,
bodily injury to or death of persons or loss of or damage to property
occurring on or about the Building and the Premises or any part thereof,
and alleged to be due to any act or failure to act or any negligence or
default under this Lease by Tenant, its contractors, agents, servants, and
employees; (b) any failure on the part of Tenant to perform or comply with
any of the terms of this Lease; and/or (c) any performance by or for the
Tenant of any labor or services or the furnishing by or for the Tenant of
any materials or any property in respect to the Building and/or the
Premises or any part thereof. Excluded from this indemnity are any claims
resulting from the negligent or intentional acts of the Landlord, the
Landlord's beneficiaries, their mortgagees, agents, tenants, servants,
contractors or employees. In case any action, suit, or proceeding is
brought against the Landlord, the Landlord's beneficiaries, their
mortgagees, agents, tenants, servants, contractors or employees by reason
of any such occurrences, Tenant will, at Tenant's sole expense, resist and
defend such action, suit, or proceeding, by legal counsel, the choice of
whom shall be subject to the Landlord's reasonable written approval.
B. Landlord agrees to protect, indemnify, and save harmless the Tenant,
its agents, employees and contractors, from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs, or
expenses (including without limitation reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Tenant by reason
of (a) any accident, bodily injury to or death of persons or loss of or
damage to property occurring on or about the Building and the Premises or
any part thereof, and alleged to be due to any act or failure to act or any
negligence or default under this Lease by Landlord, its contractors,
agents, servants, and employees; (b) any failure on the part of Landlord to
perform or comply with any of the terms of this Lease; and/or (c) any
performance by or for the Landlord of any labor or services or the
furnishing by or for the Landlord of any materials or any property in
respect to the Building and/or the Premises or any part thereof. Excluded
from this indemnity are any claims resulting from the negligent or
intentional acts of the Tenant, its agents, employees and contractors. In
case any action, suit, or proceeding is brought against the Tenant, its
agents, employees and contractors by reason of any such occurrences,
Landlord will, at Landlord's sole expense, resist and defend such action,
suit, or proceeding, by legal counsel, the choice of whom shall be subject
to the Tenant's reasonable written approval.
SECTION 17. INSURANCE
A. Tenant shall procure and maintain at its own cost policies of
commercial general liability insurance insuring Landlord, the Landlord's
beneficiaries, the Agent, their mortgagees, agents, servants, and employees
from the following:
1. From all claims, demands, liabilities, lawsuits or actions for
bodily injury or death to any persons in an amount of not less than
Two Million Dollars ($2,000,000), and for damage to property in an
amount of not less than One Million Dollars ($1,000,000), made by or
on behalf of any person or persons, firm, entity, or corporation,
arising from, related to, or connected with the Tenant, its
operations, and/or the Premises; and
2. Said insurance shall also fully insure for the claims covered by
the indemnity provided for in Section 16. herein above.
The insurance shall be placed with companies, and in form and substance,
reasonably satisfactory to Landlord and the mortgagees of Landlord. Said
insurance shall not be subject to cancellation except after at least thirty
(30) days prior written notice to Landlord and/or the Landlord's
mortgagees. Certificates of insurance reasonably satisfactory to Landlord,
together with satisfactory evidence of payment of the premiums therefor,
must be delivered to Landlord prior to the Commencement Date, and thirty
(30) days prior to the end of the term of each such coverage.
B. Landlord will obtain insurance policies covering the Building for
public liability and fire, sprinkler leakage, malicious mischief,
vandalism, and other extended coverage perils, for the full insurable
replacement value of the Premises, the cost of which is an Operating
Expense, in accordance with Section 3. hereinabove.
SECTION 18. ASSIGNMENT AND SUBLETTING Tenant shall not assign nor in any
other way transfer this Lease or any interest therein, nor sublet the Premises
or any part or parts thereof, nor permit occupancy by anyone other than the
Tenant, without the previous written consent of the Landlord, which consent
shall not be unreasonably withheld or delayed. The Landlord may grant its
consent, provided the Landlord determines the proposed assignee or
sublessee is reasonably reputable and in the case of an assignee only is as
financially responsible as the Tenant. In order for Landlord to consider said
assignment or sublease, the Tenant shall provide the following:
A. The Tenant shall give the Landlord a notice of its intention to assign
or sublet ("Notice to Sublease"), which notice shall include reliable
information, including, but not limited to, the name of the proposed
assignee or sublessee, its financial responsibility evidenced by financial
statements and credit reports, its reputation, a description of its
business activities, and specific terms as to the assignment or sublease
agreement, including rental, term, and the date when the assignment or
sublease is to take effect. The Tenant shall comply with all reasonable
requests of the Landlord for additional information.
B. Within ten (10) business days from the date of the receipt by the
Landlord of the Notice to Sublease, or the additional information requested
by Landlord, if any, whichever date is later, the Landlord shall give its
consent or denial, in writing. Provided the Landlord consented to the
assignment or sublet, such consent shall be conditioned upon the delivery
to the Landlord, within ten (10) business days after such consent, of the
following documents:
1. Four executed copies of the assignment which shall include an
assumption by the assignee, from and after the effective date of the
assignment, of the performance and observance of those covenants and
conditions contained in this Lease to be performed and observed by the
Tenant. The substance and form of the assignment agreement shall be
subject to the Landlord's reasonable approval.
2. Should a sublease be involved, four executed copies of the
sublease agreement, which shall include an agreement on the part of
the subtenant to be obligated, from and after the effective date of
the sublease, to the performance and observance of the covenants and
conditions contained in this Lease to be performed and observed by the
Tenant. The substance and form of such sublease agreement shall be
subject to the Landlord's reasonable approval.
C. Consent by the Landlord to one or more assignments or subletting of
this Lease shall not operate as a waiver of Landlord's rights as to any
subsequent assignments or subletting.
D. Any consented assignment or sublease shall in no way release the
Tenant of any of its obligations and covenants under this Lease, nor should
said assignment or sublease be construed or taken as a waiver of any of the
Landlord's rights or remedies hereunder against or as relating to the
Tenant.
E. In the event the terms of the assignment or sublease provide for an
increase in rental in excess of the Rental provided for herein, or in the
event the Tenant receives a bonus or other considerations from the assignee
or subtenant in consideration of said assignment or sublease, after
deducting the reasonable costs of both the Landlord and the Tenant of the
assignment or sublease, including but not limited to tenant improvements,
leasing commissions, free rent, advertising expenses and legal expenses,
such increased Rental, bonus, or other considerations shall be paid to the
Landlord.
F. To the extent allowed by law, the Tenant's interest in this Lease
shall not pass to any trustee or receiver in bankruptcy, or any assignee
for the benefit of creditors or any other third party by operation of law.
G. Tenant shall pay to Landlord a reasonable fee for processing and
review of all sublease and/or assignment documents, whether or not said
sublease and/or assignment is actually executed by all parties, however
such fee shall not exceed five hundred dollars ($500) for each sublease
and/or assignment.
H. Notwithstanding any provisions in this Section to the contrary, Tenant
may assign this Lease or sublet the Premises or any portion thereof,
without Landlord's consent and without extending any recapture or
termination option to Landlord and without losing any other option or right
granted to Tenant under this Lease, to any corporation which controls, or
is controlled by or is under common control with the Tenant, or to any
person or entity which acquires all the assets of the Tenant's business as
a going concern, or to an entity into which the Tenant merges or with which
it is consolidated, provided (i) the assignee or sublessee assumes, in
full, the obligations of Tenant under this Lease, (ii) Tenant remains fully
liable under this Lease, (iii) the use of the Premises remains unchanged,
and (iv) the Tenant gives written notice to the Landlord of the assignment
or sublease.
SECTION 19. FIRE AND CASUALTY If the Premises and/or the Building shall
be damaged or destroyed by fire or other casualty, and if it appears that the
Premises and/or the Building may be repaired or restored within one hundred
eighty (180) days after such damage, and provided the Landlord's mortgagees
allow sufficient insurance proceeds for the cost of said repair or restoration,
the Landlord shall commence to repair or restore the Premises and/or the
Building as soon as reasonably possible and diligently complete said repairs and
restoration with reasonable promptness. Notwithstanding anything to the
contrary herein contained, Landlord shall have no duty pursuant to this Section
19. to repair or restore any portion of the alterations, additions, or
improvements in the Premises or the decorations thereto, except to the extent
that same were provided by Landlord at Landlord's cost, i.e., the Tenant
Improvements. If Tenant wants any other or additional repairs, restorations,
additions, or alterations, and if Landlord consents thereto, the same shall be
done by Landlord at the Tenant's expense. If the damage renders the Premises
untenantable in whole or in part and it cannot reasonably be repaired or
restored within one hundred eighty (180) days after the damage, or if Landlord
elects to demolish the Building or cease its operation, then Landlord shall have
the right to cancel and terminate this Lease as of the date of such damage by
giving written notice to Tenant at any time within sixty (60) days after such
damage shall
have occurred. If the damage had not been caused by the intentional act or
neglect of the Tenant, and if this Lease was not cancelled or terminated in
accordance with the provisions in this Section 19., then Rental shall abate
during the period beginning with the date of such damage and ending with the
date when the Premises and/or the Building are again rendered tenantable;
however such abatement shall be limited to the ratio that the untenantable
portion of the Premises bears to the entirePremises, should only a portion of
the Premises be untenantable. In the event the Premises is not restored or
repaired within one hundred and eighty (180) days, the Tenant shall have the
right to terminate the Lease upon notice to the Landlord. Should the damage be
caused by the intentional or wilful acts of the Tenant or its agents or
employees, Rental shall not abate nor shall the Tenant have a right to cancel
this Lease, and the Tenant shall continue to be liable therefor regardless that
the Premises may not be habitable.
SECTION 20. MUTUAL WAIVER OF SUBROGATION RIGHTS Whenever any loss, cost,
damage or expense resulting from fire, explosion, or any other casualty or
occurrence is incurred by either of the parties to this Lease in connection with
the Premises, and such party is then covered in whole or in part by valid and
collectible fire and extended coverage insurance with respect to such loss,
cost, damage, or expense, then the parties so insured hereby release the other
party from any liability it may have on account of such loss, cost, damage or
expense to the extent of any amount recovered by reason of such insurance and
waives any right to subrogation which might otherwise exist in or accrue to any
person on account thereof, provided that such release of liability and waiver of
the right of subrogation shall not be operative in any case where the effect
thereof is to invalidate such insurance coverage or increase the cost thereof
(provided that in the case of increased cost, the other party shall have the
right, within thirty (30) days following written notice from the other, to pay
such increased cost, thereupon keeping this release and waiver in full force and
effect).
SECTION 21. EMINENT DOMAIN
A. In the event that the entire or a substantial part of the Premises
shall be condemned or taken in any manner for any public or quasi-public
use, and as a result thereof the Premises cannot be used for the same
purpose as prior to such taking, this Lease and the Term shall cease and
terminate as of the date possession is taken. For purposes of this
Section, the phrase "substantial part of the Premises" is defined as and is
understood to mean "more than twenty-five percent (25%) of the Premises."
B. If less than a substantial part of the Premises shall be so condemned
or taken, and after such taking the Premises can be used for the same
purpose as prior thereto, the Term shall cease only on the part so taken,
as of the date possession shall be taken by such public authority, and
Tenant shall pay full Rental up to that date (with appropriate refund by
Landlord of such Rental as may have been paid in advance for any period
subsequent to the date possession is taken) and thereafter the Rental shall
be equitably adjusted. Landlord shall, at its expense, make all necessary
repairs or alterations to the Building and/or the Premises so as to
constitute the remaining Building and/or Premises a complete architectural
unit, provided that Landlord shall not be obligated to undertake any such
repairs and alterations if the cost thereof exceeds the award resulting
from such taking.
C. If part of the Building or any adjacent property or street shall be
condemned by a public or quasi-public authority, and in the reasonable
opinion of the Landlord, the Building should be demolished or restored in
such a way as to alter the Premises materially, Landlord may terminate this
Lease and the Term shall expire on the date specified in the notice of
termination as fully and
completely as if such date was the Termination Date, and the Rental
hereunder shall be apportioned as of such date.
D. All damages awarded for any taking by a public authority under the
power of eminent domain, whether for the whole or a part of the Premises
and/or the Building, shall be the property of Landlord, whether such
damages shall be awarded as compensation for diminution in value of the
leasehold or to the fee of the Building, provided however the Tenant shall
be entitled to an award and reimbursement for relocation expenses and
business interruption, provided the award to the Landlord is not diminished
or reduced in any way.
SECTION 22. DEFAULTS
A. Any one (1) or more of the following events shall be considered an
event of default, hereinafter referred to as "Event of Default":
1. Tenant shall be adjudged an involuntary bankrupt, or a decree or
order is entered approving a reorganization of Tenant, under the
Federal bankruptcy or insolvency laws, or under the laws of any State,
or any laws relating to the relief of debtors, readjustment of
indebtedness, reorganization, arrangements, composition, or extension,
and any such adjudication, decree, judgment or order shall not have
been vacated or stayed or set aside within ninety (90) days from the
date of the entry or granting thereof; or
2. A involuntary decree or order appointing a receiver of the
property of Tenant shall be entered by a court of competent
jurisdiction, and such decree or order shall not have been vacated or
set aside within ninety (90) days from the date of entry or granting
thereof; or
3. Tenant shall file a petition in bankruptcy, or Tenant shall
institute any proceedings or shall give its consent to the institution
of any proceedings for any relief of Tenant under any Federal
bankruptcy or insolvency laws, or under the laws of any state, or any
laws relating to the relief of debtors, readjustment of indebtedness,
reorganization, arrangements, composition, or extension; or
4. Tenant shall make any assignment for the benefit of creditors or
shall apply for or consent to the appointment of a receiver for Tenant
or any of the property of Tenant; or
5. The Premises are levied upon by any federal, state or municipal
revenue officer or similar officer, and such levy shall not have been
vacated or stayed or set aside within ninety (90) days from the date
of the entry or granting thereof; or
6. Tenant shall fail to pay any installment of Rental or other sums
required to be paid by Tenant hereunder when due as herein provided,
and such default shall continue for ten (10) business days after
notice thereof in writing by Landlord to Tenant; or
7. A lien is filed or served on or against the Building and/or the
Premises, which lien allegedly arose as a result of actions or actions
of the Tenant, and such lien is not released to the sole satisfaction
of the Landlord, within ninety (90) days from the date of the said
lien; or if the Tenant seeks to contest the lien, it does not, within
the sole discretion and judgement of the Landlord, fully comply with
the provisions of Section 9 hereinabove; or
8. Tenant shall fail to keep, observe, or perform any of the other
covenants and agreements herein contained to be kept, observed, and
performed by Tenant, and such failure shall continue for thirty (30)
days after notice thereof in writing to Tenant; provided, however,
should remedial activity on the part of the Tenant reasonably require
a period in excess of the said thirty (30) days, the Tenant shall not
be considered to have committed an Event of Default provided it
diligently pursues said remedial activity for a reasonable period of
time as may be required, however, in no event shall said reasonable
period of time exceed sixty (60) days.
B. Upon the occurrence of any one (1) or more of the above Events of
Default and after the expiration of any cure period provided, then upon
written notice from Landlord to Tenant, the Landlord may elect to either
(a) terminate the Lease, or (b) terminate the rights of the Tenant to
possession of the Premises only without terminating the Lease. Upon either
termination of the Lease or upon termination of the Tenant's right to
possession of the Premises without termination of the Lease, Tenant shall
surrender possession and vacate the Premises immediately and deliver
possession thereof to Landlord, and Tenant hereby grants to Landlord the
full and free right, without further demand or notice of any kind to
Tenant, to enter into and upon the Premises, with due process of law if
necessary, and to repossess the Premises as Landlord's former estate and to
expel or remove Tenant and any others who may be occupying the Premises,
and remove Tenant's personal property, signs, and other evidences of
tenancy, without being deemed in any manner guilty of trespass, eviction,
or forcible entry or detainer, without incurring any liability for any
damage resulting therefrom, and without relinquishing Landlord's rights to
Rental for the entire balance of the Term, or from any other obligations
under this Lease, or any other right given to Landlord by operation of law.
C. Upon termination of the Lease, Landlord shall be entitled to receive
as damages (a) all Rental and other sums due and payable by Tenant on the
date of the termination, plus (b) the present value of the Rental and other
sums provided herein to be paid by Tenant for the rest of the Term based
upon a discount rate of the then current prime rate of interest from time
to time charged by the First National Bank of Chicago per annum less the
present value of the fair market rental for the rest of the Term based upon
the same discount rate, plus (c) the cost of performing any other covenants
to be performed by Tenant and plus (d) the cost of attorneys' fees and
court costs incurred by the Landlord, if any, in enforcing the rights of
the Landlord.
D. If Landlord elects to terminate the Tenant's right to possession of
the Premises only without terminating the Lease, Landlord shall be entitled
to receive as damages (a) all Rental and other sums due and payable by
Tenant on the date of the termination, plus (b) all Rental and other sums
as such becomes due and payable thereafter for the rest of the Term, plus
(c) the cost of performing any other covenants to be performed by Tenant
and plus (d) the cost of attorneys' fees and court costs incurred by the
Landlord, if any, in enforcing the rights of the Landlord.
E. If the Landlord elects to terminate the Tenant's right to possession
of the Premises and not terminate the Lease, the Landlord shall have the
obligation to use reasonable efforts to relet the Premises. Landlord may
relet all or any part of the Premises for such rental and upon such terms
as shall be reasonably satisfactory to Landlord, including the right to
relet the Premises for a term greater or lesser than that remaining on the
Term of this Lease, and the right to relet the Premises as a part of a
larger area or a smaller area, and the right to change the character or use
made of the Premises. For the purpose of such reletting, Landlord may
decorate or make any repairs, changes, cleaning, painting, alterations, or
additions in or to the Premises, and may further pay customary leasing
brokers' commissions, market rent concessions to a new tenant or tenants,
and reasonable attorneys' fees that may be necessary to induce or procure
the replacement
tenant. If the Premises are relet and a sufficient sum shall not be
realized from the collection of the rental of such reletting, after paying
all the expenses of such reletting referred to hereinabove to satisfy the
remaining Rental and other charges due from the Tenant for the remainder of
the Term, Tenant shall pay to the Landlord on demand any such deficiency
within ten (10) days after demand.
F. Landlord shall use all reasonable efforts to secure a substitute
tenant for the Premises to mitigate its damages arising out of Tenant's
Events of Default; however, Landlord shall not be deemed to have failed to
use such reasonable efforts by reason of the fact that Landlord has leased
or sought to lease other vacant premises owned by Landlord (or Landlord's
Beneficiaries), whether in the Building or in other properties, in
preference to reletting the Premises.
G. In the event of any incurred Event of Default hereunder by Tenant,
including but not limited to, Tenant's failure to obtain insurance, make
repairs, or satisfy lien claims, Landlord may immediately or at any time
thereafter, with notice to the Tenant, cure the Event of Default for the
account and at the expense of Tenant. If Landlord at any time, by reason
of any Event of Default, is compelled to pay or elects to pay any sum of
money or do any act which will require the payment of any sum of money, the
sum or sums so paid by Landlord, with interest thereon at the rate of four
percent (4%) in excess of the then current prime rate of interest from time
to time charged by the First National Bank of Chicago per annum, or twelve
percent (12%) per annum, whichever is greater, commencing on the date of
payment thereof, shall be due and payable by the Tenant to the Landlord.
H. If either the Landlord or Tenant are compelled to incur any expense in
instituting or prosecuting any action or proceeding in law or in equity to
enforce any of their rights and obligations hereunder, the expenses
incurred, including but not limited to reasonable attorneys' fees and court
costs, with interest thereon at the rate of four percent (4%) in excess of
the then current prime rate of interest from time to time charged by the
First National Bank of Chicago per annum, or twelve percent (12%) per annum
whichever is greater, shall be due and payable from the losing party to the
prevailing party. The Landlord and the Tenant each waive the right to a
trial by jury in the event of any such action or proceeding in law or in
equity.
I. No remedy herein or otherwise conferred upon or reserved to Landlord
shall be considered to exclude or suspend any other remedy, but the same
shall be cumulative and shall be in addition to every other remedy given
hereunder now or hereafter existing at law or in equity or by statute, and
every power and remedy given by this Lease to Landlord may be exercised
from time to time and as often as occasion may arise or as may be deemed
expedient. No delay or omission of Landlord to exercise any right or power
arising from any Event of Default shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or any
acquiescence therein. No receipt of monies by Landlord from Tenant after
the termination of this Lease, or the termination of Tenant's right of
possession of the Premises, 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 monies, it being agreed that after the service
of any notices provided in this Section 22, or the commencement of a
lawsuit or after final judgment for possession of the Premises, Landlord
may receive and collect any Rental due, and the payment of said Rental
shall not waive or affect said notice, suit, judgment or Landlord's rights
hereunder. No remedy herein or otherwise conferred upon or reserved to
Landlord shall be considered to exclude or suspend any other remedy, but
the same shall be cumulative and shall be in addition to every other remedy
given hereunder now or hereafter existing at law, or in equity, or by
statute, and every power and remedy given by this Lease to Landlord may be
exercised from time to time and as often as occasion may arise or as may be
deemed expedient.
J. The monthly installments of Rental are due on the 1st day of each
month. Any other charges are due within ten (10) days of written notice
thereof. All Rental and/or other sums due from Tenant to Landlord which
are unpaid when due shall be assessed interest thereon at the rate of Four
Percent (4%) in excess of the then current prime rate of interest from time
to time charged by the First National Bank of Chicago per annum, or twelve
percent (12%) per annum, whichever is greater, and said sum shall be due
and payable by Tenant to Landlord.
K. The provisions of this Section 22. shall survive the termination of
this Lease.
SECTION 23. SURRENDER OF POSSESSION Upon the termination of this Lease
and/or the Term for any reason whatsoever, or in the event of the Tenant
vacating the Premises and stops paying Rental without approval by the Landlord,
Tenant shall surrender possession of the Premises to Landlord in good condition
and repair, reasonable wear and tear, and damage by fire or other casualty,
excepted, and remove all its personal property and effects therefrom. If
possession of the Premises is not immediately surrendered on the Termination
Date, 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, with due process of law, if necessary, without being
deemed guilty of any manner of trespass or forcible entry or detainer. Without
limiting the generality of the foregoing, Tenant agrees to remove on or before
the Termination Date, the items of property, title to which is to remain in
Tenant under the terms of Section 8. of this Lease. If Tenant shall fail or
refuse to remove all such property from the Premises, Tenant shall be
conclusively presumed to have abandoned the same, and title thereto shall
thereupon pass to Landlord without any cost to Landlord either by set-off,
credit, allowance, or otherwise, and Landlord shall be entitled to be reimbursed
by Tenant for the cost of any removal or other expenses incurred by Landlord
plus ten percent (10%).
SECTION 24. HOLDING OVER If Tenants shall retain possession of the
Premises or any part thereof after the termination of this Lease, whether by
lapse of time or otherwise, Tenants shall pay to Landlord one hundred and fifty
percent (150%) of the amount of all forms of Rental then applicable for each
month or portion thereof the Tenants remain in possession. Tenants shall also
pay all consequential damages sustained by Landlord on account thereof
including, but not limited to, loss of rental from prospective tenants for the
Premises. The provisions of this Section 24. shall not operate as a waiver by
Landlord of any right of re-entry hereinabove provided.
SECTION 25. BROKERAGE The Tenant and Landlord warrant to each other that
the only brokers or agents they have dealt with, or had any contact with, in
connection with this Lease are as follows:
BKB Commercial, and its agent, Brian Borkan
CB Richard Ellis, and its agent, Mark C. Smith.
The Landlord agrees to pay leasing commission arising out of this Lease and due
to these two brokers. Both the Landlord and the Tenant agree to hold harmless
and indemnify the other from and against any and all cost (including reasonable
attorneys' fees), expense, or liability for any compensation, commissions, and
charges claimed against them by any other undisclosed brokers or agents with
respect to this Lease or the negotiation thereof.
SECTION 26. SUBORDINATION From time to time before or after the
execution of this Lease, the Landlord may execute a mortgage, or trust deed in
the nature of a mortgage, of Landlord's interest in the Building. In such event:
A. This Lease and all rights of Tenant hereunder are subject and
subordinate to any and all such mortgages or trust deeds, blanket or
otherwise, which do now or may hereafter affect the Building, and to any
and all renewals, modifications, consolidations, replacements and
extensions thereof. It is the intention of the parties that this provision
be self-operative and that no further instrument shall be required to
effect such subordination of this Lease or the rights of the Tenant.
Tenant shall, however, upon demand at any time or times, execute,
acknowledge, and deliver to Landlord, without expense to Landlord, any and
all instruments that may be necessary or proper, in the reasonable judgment
of the Landlord, to subordinate this Lease, and all rights of Tenant
hereunder to any such mortgage or trust deed or to confirm or evidence such
subordination. Provided the Tenant is not in default of the terms of this
Lease, said subordination shall not disturb the quiet enjoyment of the
Leased Premises by the Tenant for the balance of the Term.
B. Should such mortgage or trust deed be foreclosed, the liability of the
Landlord, mortgagee, trustee or purchaser from such foreclosure sale, or
the liability of a subsequent owner designated as Landlord under this
Lease, shall exist only so long as such Landlord, trustee, mortgagee,
purchaser or owner is the owner of the Building, and such liability shall
not continue or survive as to liabilities arising after transfer of
ownership.
C. Landlord agrees promptly to notify Tenant of the placing of any
mortgage or trust deed against the Building (said notice shall contain the
name and address of the mortgagee), and Tenant agrees in the event of any
act or omission by Landlord which would give Tenant the right to terminate
this Lease, or to claim a partial or total eviction, Tenant shall not
exercise any such rights until it has notified in writing the holder of any
mortgage or trust deed which at the time shall be a lien on the Leased
Premises, of such act or omission, and such holder shall be provided with a
reasonable time to cure any such act or omission.
D. Tenant covenants and agrees, in the event any proceedings are brought
for the foreclosure of any such mortgage or trust deed, to attorn, without
any deductions or set-offs whatsoever, to the purchaser upon any such
foreclosure sale, if so requested to do, by such purchaser, and to
recognize such purchaser as the Landlord under this Lease. Tenant agrees
to execute and deliver, at any time and from time to time, upon the request
of Landlord or any holder of such mortgage, or trust deed or such
purchaser, any instrument which, in the reasonable judgment of such
requesting party, may be necessary or appropriate in any such foreclosure
proceeding or otherwise to evidence such attornment. However, in the event
of such foreclosure the Tenant's right to possession and quiet enjoyment
shall not be disturbed provided it is in full compliance with all the terms
and conditions of this Lease and it has not committed an incurred Event of
Default.
E. Any reference herein to the words "foreclosure, foreclosure sale
and/or foreclosure proceeding" shall be interpreted to include a conveyance
by deed in lieu of foreclosure.
SECTION 27. ESTOPPEL CERTIFICATES Tenant shall at any time and from time
to time, upon fifteen (15) days prior written notice from Landlord, execute,
acknowledge, and deliver to Landlord, in the form attached hereto as Exhibit B,
a written statement certifying (if true) that Tenant has accepted the Premises,
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), that the Landlord is not in default hereunder, the
date to which Rental and other charges have been paid in advance, if any, and
such other accurate certifications as may reasonably be required by Landlord or
Landlord's mortgagee. It is intended that any such statement delivered pursuant
to this Section 27. may be relied upon by any prospective purchaser or mortgagee
of the Building, and their respective successors
and assigns. The failure or refusal of Tenant to execute any such statement
within fifteen (15) days after written notice by Landlord shall constitute a
material Event of Default of this Lease in accordance with the provisions of
Section 22.
SECTION 28. NOTICES AND CONSENTS
A. Whenever under this Lease a provision is made for notice of any kind
(hereinafter referred to as "Notice"), the Notice shall be in writing, and
signed by or on behalf of the party giving or making the Notice, and shall
be given to the party at its address and/or fax number set forth below or
such other address and/or fax number as the party may later specify for
that purpose by Notice to the other party. Each Notice shall, for all
purposes, be deemed given and received:
1. If given by fax, when the fax is transmitted to the party's fax
number specified below and confirmation of complete receipt is
received by that transmitting party during normal business hours or on
the next business day if not confirmed during normal business hours;
2. If hand delivered to a party, when the copy of the Notice is
receipted;
3. If given by a nationally recognized and reputable overnight
delivery service, the day on which the Notice is actually received by
the party;
4. If given by certified mail, return receipt requested, postage
prepaid, two (2) business days after it is posted with the United
States Postal Service, to the address of the party specified below.
B. If any Notice is sent by fax, the transmitting party shall send a
duplicate copy of the Notice to the other party by regular mail. In all
events, however, any Notice sent by fax transmission shall govern all
matters dealing with delivery of the Notice, including the date on which
the Notice is deemed to have been received by the other party.
C. The provisions above governing the date on which a Notice is deemed to
have been received by a party to this Lease shall mean and refer to the
date on which a party to this Lease, and not its counsel or other recipient
to which a copy of the Notice may be sent, is deemed to have received the
Notice.
D. If Notice is tendered under the provisions of this Lease and is
refused by the intended recipient of the Notice, the Notice shall
nonetheless be considered to have been given and shall be effective as of
the date of the refusal. The contrary notwithstanding, any Notice given to
a party in a manner other than that provided in this Lease, that is
actually received by that party, shall be effective with respect to said
party on receipt of the Notice.
E. Notices shall be sent to the following addresses:
To the Landlord:
Lincoln Atrium Management Company
59 West Seegers Road
Arlington Heights, Illinois 60005
Fax Number - 847-364-7772
To the Tenant:
Delphi Information Systems, Inc.
3501 Algonquin Road
Rolling Meadows, IL 60008
Fax Number - 847-590-8280
Attention: President
and copy to: Attention: Chief Financial Officer
at the same address
SECTION 29. AMERICANS WITH DISABILITIES ACT Notwithstanding anything to
the contrary contained in this Lease, Landlord is and shall be solely
responsible for ensuring that at the time of the Commencement Date, the Premises
and the Building are in full compliance with Title III of the Americans With
Disabilities Act (42 U.S.C. SS. 12101 et seq. - hereinafter referred to as
"ADA"), and all regulations pursuant thereto (the "Regulations"). Landlord
hereby indemnifies, saves, and holds harmless Tenant from and against any and
all claims, demands, causes of action, suits, losses, costs, and expenses
(including, without limitation, attorneys' fees and litigation costs), damages,
penalties and fines asserted against, suffered or incurred by, Tenant in any way
relating to or arising from, in whole or in part, an actual or asserted claim
that the Premises or the Building (or any portion thereof), were in violation of
the ADA or the Regulations as of the Commencement Date.
SECTION 30. CANCELLATION OPTION
A. If the Tenant has not committed an uncured Event of Default
beyond any applicable cure period on the date it exercises its option, the
Tenant shall have the right to cancel and terminate this Lease effective on
September 30, 2001, provided the Tenant pays to the Landlord in the amount
of One Hundred Thousand Dollars ($100,000) ("First Cancellation Fee"). To
exercise the rights provided for in this Section 30, the Tenant shall serve
a written notice upon the Landlord on or before January 1, 2001; included
with such written notice shall be a cashiers check in the full amount of
the First Cancellation Fee. The exercise of this right of cancellation,
shall not excuse the Tenant from the continued performance of all of its
covenants and obligations provided for in this Lease until September 30,
2001. Provided the Tenant has not committed an incurred Event of Default
and has timely paid the First Cancellation Fee, the Term of this Lease
shall terminate on September 30, 2001, as if such date was the end of the
Term as set forth in Section 1.
B. Provided the Tenant has not exercised its option to cancel this
Lease as of September 30, 2001, and provided the Tenant has not committed
an uncured Event of Default beyond any applicable cure period on the date
it exercises its option, the Tenant shall have the right to cancel and
terminate this Lease effective on September 30, 2002, provided the Tenant
pays to the Landlord in the amount of Fifty Thousand Dollars ($50,000)
("Second Cancellation Fee"). To exercise the rights provided for in this
Section 30, the Tenant shall serve a written notice upon the Landlord on or
before January 1, 2002; included with such written notice shall be a
cashiers check in the full amount of the Second Cancellation Fee. The
exercise of this right of cancellation, shall not excuse the Tenant from
the continued performance of all of its covenants and obligations provided
for in this Lease until September 30, 2002. Provided the Tenant has not
committed an incurred Event of Default and has timely paid the First
Cancellation Fee, the Term of this Lease shall terminate on September 30,
2002, as if such date was the end of the Term as set forth in Section 1.
SECTION 31. MISCELLANEOUS
A. 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 Trustee owner at the time in question of the fee of
Building, and in the event of any transfer or transfers of the title to
such fee, provided such grantee assumes liability for the grantor's
obligations under this Lease, Landlord herein named (and in case of any
subsequent transfer or conveyances, the then grantor) shall be
automatically freed and relieved, from and after the date of such transfer
or conveyance, of all liability regarding 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.
B. The Tenant may not record this Lease or a memorandum thereof with the
Recorder of Deeds of Cook County, without the written consent of the
Landlord.
C. Time is of the essence of this Lease, and all provisions herein
relating thereto shall be strictly construed.
D. Nothing contained herein shall be deemed or construed by the parties
hereto nor by any third party as creating the relationship of principal or
agent or of partnership, or of joint venture by the parties hereto, it
being understood and agreed that no provisions contained in this Lease nor
any act of the parties hereto shall be deemed to create any relationship
other than the relationship of Landlord and Tenant.
E. The captions of this Lease are for convenience only and are not to be
construed as part of this Lease nor as defining or limiting in any way the
scope or intent of the provisions hereof.
F. If any term or provision of this Lease shall to any extent be held
invalid or unenforceable, the remaining terms and provisions of this Lease
shall not be affected thereby, but each term and provision of this Lease
shall be valid and enforced to the fullest extent permitted by law.
G. All of the covenants, agreements, conditions, and undertakings
contained in this Lease shall extend and inure to and be binding upon the
representatives, successors, and assigns of the respective parties hereto,
the same as if they were in every case specifically named, and whenever in
this Lease reference is made to either of the parties hereto, it shall be
held to include and apply, wherever applicable, to the representatives,
successors, and assigns of such party. Nothing herein contained shall be
construed to grant or confer upon any person or persons, firm, corporation,
or governmental authority, other than the parties hereto, their
representatives, successors, and assigns, any right, claim, or privilege by
virtue of any covenant, agreement, condition, or undertaking in this Lease
contained.
H. Submission of this Lease for examination or signature by Tenant does
not constitute a reservation of or option for this Lease; it shall become
effective as a Lease only upon execution and delivery by both Landlord and
Tenant.
I. No rights to light or air over any real estate, whether belonging to
Landlord or any other party, are granted to Tenant by this Lease.
J. This Lease shall be governed by and construed in accordance with the
laws of the State of Illinois.
K. 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 in its sole discretion may elect.
L. This Lease and the Exhibits, attached hereto and forming a part
hereof, set forth all the covenants, promises, agreements, conditions, and
understandings between Landlord and Tenant concerning the Premises, and
there are no covenants, promises, agreements, conditions, or
understandings, either oral or written, between them other than as are
herein set forth. Except as herein otherwise provided, no subsequent
alteration, amendment, change, or addition to this Lease shall be binding
upon Landlord or Tenant unless reduced to writing and signed by them. This
Lease consists of the following:
Lease of 28 Pages
Exhibit A - Tenant Plans
Exhibit B - Estoppel Certificate
M. Notwithstanding anything contained herein to the contrary, Landlord
shall remain responsible for, and shall indemnify and save Tenant harmless
from and against any and all liability, damages, losses, claims, suits, and
other costs (including reasonable attorneys' fees) arising out of, or
connected with the presence on, in, or under the Building or the Premises,
of any Hazardous Materials existing prior to the Commencement Date, or
thereafter, resulting from any cause other than the Tenant, its agents,
invitees, contractors, and/or employees, and/or its occupancy in, or use
of, the Premises.
O. The Tenant has been occupying the Premises since September 22, 1993
under a Lease Agreement with the Landlord dated April 7, 1993, and amended
July 27, 1993 and June 15, 1995 (the "Old Lease"). The Tenant shall not be
obligated under the terms and provisions of the Old Lease on and after the
Commencement Date, however the Tenant shall remain obligated and liable
under the Old Lease for any Rental and other amounts due or other
obligations and liabilities which were due or accrued prior to the
Commencement Date.
SECTION 32. EXCULPATORY CLAUSE This Lease is executed by Landlord, not
personally, but as trustee (hereinafter "Trustee") pursuant to a certain Trust
Agreement dated August 27, 1982 and known as Trust Number 105272 (hereinafter
"Trust Agreement"), in the exercise of the power and authority conferred upon
and vested in it as Trustee, under the express direction of the Landlord's
Beneficiaries, and subject to all provisions of the Trust Agreement, to which
the Lease is expressly made subject. It is expressly understood and agreed that
nothing in this Lease contained shall be construed as creating any liability
whatsoever against the Trustee or Landlord's Beneficiaries, and in particular,
without limiting the generality of the foregoing, there shall be no personal
liability to pay any indebtedness accruing hereunder or to perform any covenant,
either express or implied, herein contained, to keep, preserve, or sequester any
property of the Trust, and that all personal liability of the Trustee, and the
Landlord's Beneficiaries, of every sort, if any, is hereby expressly waived by
Tenant, and by every person now or hereafter claiming any right or security
hereunder; and that so far as the parties hereto are concerned, the owner of any
indebtedness or liability accruing hereunder shall look solely to the Trust
Estate, which is the Building, subject to the provisions of the Trust Agreement,
for the payment thereof. It is further understood and agreed that the Trustee
has no agents or employees and merely holds a leasehold interest to the Building
and has no control over the management thereof or the income therefrom and has
no knowledge respecting rentals, leases, or other factual matter with respect to
the Building, except as represented to it by the Landlord's Beneficiaries.
THE BALANCE OF THIS PAGE IS INTENTIONALLY OMITTED
THE SIGNATURE PAGE IS THE NEXT PAGE
IN WITNESS WHEREOF, Landlord and Tenant have executed and entered into three (3)
duplicate originals of this Lease of twenty-eight (28) pages, this page
included, the day and year above first written.
LANDLORD:
LA SALLE NATIONAL BANK, N.A., not individually
but as Trustee aforesaid,
-----------------------------------------
TENANT:
DELPHI INFORMATION SYSTEMS, INC., a Delaware Corporation
ATTEST:
- --------------- -----------------------------------------
Secretary President
LANDLORD'S ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF COOK
I, , a Notary Public in and for said Country, in the State
aforesaid, DO HEREBY CERTIFY THAT , personally known to me to
be a Vice President of LA SALLE NATIONAL BANK, N.A., and personally known to me
to be the same person whose name is subscribed to the foregoing instrument,
appeared before me this day in person and acknowledged that he/she signed and
delivered the said instrument as Vice President, and caused the corporate seal
of said corporation to be affixed thereto, pursuant to authority given by the
Trust Agreement, dated August 27, 1982 and known as Trust No. 105272, all by the
direction of the beneficiaries thereof, for the uses and purposes therein set
forth.
Given under my hand and notarial seal this day of September 1998.
Notary Public
My commission expires .
TENANT'S ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF COOK
I, , a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY THAT personally known to me
to be that President of DELPHI INFORMATION SYSTEMS, INC., a
Delaware Corporation, duly licensed to transact business in the State of
Illinois, and personally known to me to be the Secretary
of said Corporation, and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, appeared before me this day in
person and severally acknowledged that they signed and delivered the said
instrument as President and Secretary of said Corporation, and caused the
Corporate Seal to be affixed thereto, pursuant to authority given by the Board
of Directors of said Corporation, as their free and voluntary act and as the
free and voluntary act and deed of said Corporation, for the uses and purposes
therein set forth.
Given under my hand and notarial seal this day of September 1998.
Notary Public
My Commission expires: .
ESTOPPEL CERTIFICATE
The undersigned, DELPHI INFORMATION SYSTEMS, INC., a Delaware Corporation,
hereby certifies that it is the Tenant under a certain Lease Agreement dated the
day of September, 1998 with La Salle National Bank, N.A., as Trustee under
Trust Agreement dated August 27, 1982, and known as Trust No. 105272, as the
Landlord, which Lease Agreement leases to Tenant 20,686 square feet on the 5th
floor (hereinafter referred to as Premises) at 3501 Algonquin Road, Rolling
Meadows, Illinois 60008, in an office building known as Crossroads of Commerce
III.
The Tenant hereby further certifies as to the following:
1. That the Lease is in full force and effect and has not been modified,
altered or amended;
2. That possession of the Premises has been accepted by the Tenant;
3. That the Term of the Lease commenced on October 1, 1998 and terminates
on September 30, 2003;
4. That the Rentable Square Feet of the Premises is 20,686;
5. That the Base Rent payable by the Tenant for the entire Term is
$1,344,590.04 payable as follows:
10/1/98 to 9/30/99 - 12 installments of $20,686.00
10/1/99 to 9/30/00 - 12 installments of $21,547.92
10/1/00 to 9/30/01 - 12 installments of $22,409.83
10/1/01 to 9/30/02 - 12 installments of $23,271.75
10/1/02 to 9/30/03 - 12 installments of $24,133.67
6. That the Tenant has accepted, and is in possession, of the Premises;
that any Tenant Improvements to the Premises, required by the terms of the Lease
to be made by the Landlord, have been completed to the satisfaction of the
Tenant;
7. That there are no payments, credits or concessions required to be made
or granted by Landlord to Tenant in connection with the Lease, so that the
Landlord has no obligations or liabilities with respect thereto;
8. That no Rental due under the Lease has been paid more than thirty (30)
days in advance of the date hereof;
9. That the Lease, the Premises or any portion thereof, have not been
assigned or sublet, by operation of law or otherwise;
10. That there has been no default under the Lease, by either the Tenant
or the Landlord, and that no event has occurred which, with the giving of
notices, or the passage of time, or both, could result in a default under the
Lease;
11. That the Tenant, as of the date hereof, does not have any charge,
claim, lien, or right of set-off, under the Lease and/or against the Landlord;
12. That there are no agreements between the Landlord and the Tenant other
than is stated and provided in the Lease and its Exhibits;
13. That the Tenant has no claim or right with respect to the Premises
and/or Crossroads of Commerce III other than those rights set forth in the
Lease;
14. That exceptions to the above statements are set forth hereinafter:
(If none, state none) __________________________________________ and
15. That this Certificate is being made to _________________________
_________________________________________________________________________and
said party may rely on the truthfulness of the statements set forth herein.
This Certificate of Tenant is dated this day of .
TENANT:
DELPHI INFORMATION SYSTEMS, INC., a Delaware Corporation
ATTEST:
- --------------- -----------------------------------------
Secretary President