U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-Q
X Quarterly Report pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934
For the quarterly period ended June 30, 1999
Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ________ to ________.
Commission File Number 0-23235
Success Bancshares, Inc.
(Exact name of registrant as specified in its charter)
Delaware 36-34976644
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Marriott Drive, Lincolnshire, IL 60069
(Address of Principal Executive Offices) (Zip Code)
(847) 279-9000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange of Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common stock: 2,854,757 shares $0.001 par value, outstanding as of July 26,
1999.
Table of Contents
Part I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheet 1
Consolidated Statements of Income 2
Consolidated Statements of Cash Flow 3
Footnotes to Unaudited Consolidated Financial Statements 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 5 - 11
Item 3. Quantitative and Qualitative Disclosures about
Market Risk Not Applicable 12
Part II. OTHER INFORMATION
Item 6. (a) Exhibits 13 - 15
(b) Reports of Form 8-K
None
Form 10-Q Signature Page 16
Success Bancshares, Inc. and Subsidiaries
Consolidated Balance Sheets
June 30, 1999 and December 31, 1998
June 30, December 31
1999 1998
----------- ----------
(Unaudited)
ASSETS (In thousands)
Cash and cash equivalents $ 30,328 $ 38,824
Securities available-for-sale 38,709 41,037
Real estate loans held-for-sale 716 1,006
Loans, less allowance for loan losses
of $3,576 at June 30, 1999,
and $3,824 at December 31, 1998 370,163 371,263
Premises and equipment, net 11,666 11,362
Interest receivable 2,648 2,699
Other real estate owned - 435
Other assets 4,675 3,852
--------- ---------
$458,905 $470,478
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Liabilities
Deposits
Non-interest bearing deposits $ 55,961 $ 53,557
Interest bearing deposits 328,363 345,178
--------- ---------
Total deposits 384,324 398,735
Federal Home Loan Bank advances 15,370 15,491
Securities sold under repurchase agreements 6,953 5,136
Demand notes payable to U.S. Government 2,574 886
Trust preferred securities 15,000 15,000
Interest payable and other liabilities 2,849 2,906
-------- -------
Total liabilities 427,070 438,154
Shareholders' equity
Preferred stock, $0.001 par value, 1,000,000
shares authorized, none issued 0 0
Common stock, $0.001 par value, 7,500,000
shares authorized, At June 30, 1999: 3,074,326
shares issued and 2,899,897 shares outstanding
At December 31, 1998: 2,959,236 shares issued
and outstanding, 3 3
Additional paid-in capital 25,351 24,528
Retained earnings 8,291 7,556
Treasury Stock (1,773) -
Loan to Employee Stock Ownership Plan (113) (113)
Unearned compensation (69) (92)
Accumulated other comprehensive income 142 442
-------- ---------
Total shareholders' equity 31,835 32,324
-------- --------
$458,905 $470,478
========= ========
See accompanying notes to Unaudited Consolidated Financial Statements
Success Bancshares, Inc. and Subsidiaries
Consolidated Statements of Income
(Unaudited)
Three Months Ended Six Months Ended
June 30, June 30
1999 1998 1999 1998
--------- --------- -------- --------
(In thousands, except share data)
Interest income:
Loans (including fee income) $ 7,587 $ 6,931 $15,208 $13,469
Investment securities:
Taxable 375 667 765 1,273
Exempt from federal income tax 155 146 312 291
Other interest income 73 207 170 330
-------- -------- ------- -------
8,190 7,951 16,455 15,363
Interest expense:
Deposits 3,540 3,776 7,278 7,375
Note payable - - - -
Convertible subordinated debentures - 4 - 8
Other borrowings 630 456 1,249 697
-------- -------- ------- --------
4,170 4,236 8,527 8,808
-------- -------- ------- -------
Net interest income 4,020 3,715 7,928 7,283
Provision for loan losses 150 281 300 477
-------- -------- ------- ------
Net interest income after provision
for loan losses 3,870 3,434 7,628 6,806
Other operating income:
Service charges on deposit accounts 521 536 1,010 1,036
Gain on sale of loans 53 - 148 17
Gain on sale of other assets 5 16 5 16
Credit card processing income (expense) (8) (9) (15) 19
Other noninterest income 78 64 401 120
-------- -------- -------- -------
649 607 1,549 1,208
Other operating expenses:
Salaries and employee benefits 2,214 2,009 4,398 3,862
Occupancy and equipment expense 825 635 1,640 1,172
Data processing 214 178 404 369
Other noninterest expenses 884 874 1,729 1,708
-------- -------- ------- -------
4,137 3,696 8,171 7,111
-------- -------- ------- -------
Income before income taxes 382 345 1,006 903
Income tax expense 90 27 273 200
-------- -------- ------- -------
Net income 292 318 733 703
======== ======== ======= ======
Basic earnings per share $0.10 $0.11 $0.25 $0.24
Diluted earnings per share $0.10 $0.10 $0.25 $0.23
See accompanying notes to Unaudited Consolidated Financial Statements
Success Bancshares, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
Six Months Ended June 30, 1999 and 1998
(Unaudited)
1999 1998
(In thousands)
Net cash provided by operating activities $ 1,422 $ 1,183
Cash flows from investing activities:
Proceeds from maturities of available-for-sale
securities 7,103 5,333
Purchase of available-for-sale securities (5,229) (7,461)
Proceeds from maturities of held-to-maturity
securities - 1,594
Purchase of held-to-maturity securities - (3,000)
Proceeds from sale of other real estate owned 440 246
Net decrease (increase) in loans 1,090 (40,448)
Premises and equipment expenditures (1,056) (1,620)
-------- --------
Net cash provided by (used in)
investing activities 2,348 (45,356)
-------- --------
Cash flows from financing activities:
Increase in non-interest
bearing deposits 2,404 4,325
Increase (decrease) in interest
bearing deposits (16,816) 30,269
Increase in demand notes payable to U.S.
Government 1,688 1,869
Increase in securities sold under
agreements to repurchase 1,817 1,890
Net increase (decrease) in Federal Home
Loan Bank advances (121) 3,886
Repayments of convertible subordinated
debentures - (200)
Issuance of Trust Preferred Securities - 15,000
Issuance of common stock 534 250
Purchase of common stock for treasury (1,773) -
Principal payment on ESOP loan - 20
-------- -------
Net cash provided by (used in)
financing activities (12,266) 57,309
-------- -------
Increase (decrease) in cash and cash equivalents (8,496) 13,136
Cash and cash equivalents at beginning of period 38,824 23,901
-------- --------
Cash and cash equivalents at end of period $30,328 $37,037
======= =======
See accompanying notes to the Unaudited Consolidated Financial Statements.
NOTE 1: Basis of Presentation
The financial information of Success Bancshares, Inc. and subsidiaries (the
Company) included herein is unaudited; however, such information reflects all
adjustments (consisting of normal recurring adjustments) which are, in the
opinion of management, necessary for a fair statement of results for the
interim periods. The interim financial statements should be read in
conjunction with the Company's Annual Report and Form 10-K for the period
ending December 31, 1998. The results of the interim period ended June 30,
1999 are not necessarily indicative of the results expected for the year ended
December 31, 1999.
NOTE 2: Recent Accounting Developments
In October 1998, the FASB issued SFAS No. 134, "Accounting for Mortgage-Backed
Securities Retained after the Securitization of Mortgage Loans Held for Sale by
a Mortgage Banking Enterprise" which is effective for the first fiscal quarter
after December 15, 1998. This statement amends SFAS No. 65 "Accounting for
Certain Mortgage Banking Activities." This statement revises the accounting
for retained securities and beneficial interests. The adoption of SFAS No. 134
does not presently impact the Company's consolidated financial condition or
results of operations.
NOTE 3: Earnings Per Share
Basic earnings per share are computed by dividing net income, after deducting
any dividends on preferred stock, by the weighted average number of common
shares outstanding. Diluted earnings per share assumes the exercise of any
dilutive instruments, including stock options and convertible subordinated
debt.
The table following summarizes the computation of earnings per share for the
periods indicated:
For the Three Months Ended June 30,
1999 1998
Income Share Per-Share Income Share Per-Share
Numerator Denominator Amt Numerator Denominator Amt
- ------------------------------------------------------------------------------
(In thousands, except per share amounts)
Net income $292 $318
Less: Preferred stock
dividends - -
------ -----
Basic EPS
Income available to common
stockholders 292 2,918 $0.10 318 2,929 $0.10
Effect of Dilutive Securities
Options - - - 77
------ ------ ------ ------
Diluted EPS
Income available to common
stockholders + assumed
conversions $292 $2,918 $0.10 $318 $3,006 $0.10
====== ====== ====== ====== ====== ======
For the Six Months Ended June 30,
1999 1998
Income Share Per-Share Income Share Per-Share
Numerator Denominator Amt Numerator Denominator Amt
- ------------------------------------------------------------------------------
(In thousands, except per share amounts)
Net income $733 $703
Less: Preferred stock
dividends - -
------ -----
Basic EPS
Income available to common
stockholders 733 2,938 $0.25 703 2,924 $0.24
Effect of Dilutive Securities
Options - - - 76
Convertible subordinated
debt - - 5 20
------ ------ ------ ------
Diluted EPS
Income available to common
stockholders + assumed
conversions $733 $2,938 $0.25 $708 $3,020 $0.23
====== ====== ====== ====== ====== ======
NOTE 4: Comprehensive Income
For the three months ended March 31, 1999 accumulated other comprehensive
income decreased $40,000. For the comparable period in 1998, accumulated other
comprehensive income increased $75,000.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
General
The Company's principal business is conducted by its majority owned subsidiary,
Success National Bank (the "Bank") and consists of full service community
banking. The Bank is headquartered in Lincolnshire, Illinois located
approximately 35 miles north of downtown Chicago, and, in addition to its
headquarters, has eleven branch offices. These banking facilities are located
in Deerfield (2), Libertyville (2), Lincolnwood (2), Chicago (2) (Lincoln Park
and downtown), Arlington Heights, Skokie and Northbrook.
The profitability of the Company's operations depends primarily on its net
interest income, provision for loan losses, other operating income, and other
operating expenses. Net interest income is the difference between the income
the Company receives on its loan and investment portfolios and its cost of
funds, which consists of interest paid on deposits and borrowings. The
provision for loan losses reflects the cost of credit risk in the Company's
loan portfolio. Other operating income consists of service charges on deposit
accounts, securities gains, gains on sale of loans, net credit card processing
income and fees and commissions. Other operating expenses include salaries and
employee benefits as well as occupancy and equipment expenses and other
non-interest expenses.
Net interest income is dependent on the amounts and yields of interest earning
assets as compared to the amounts of and rates on interest bearing liabilities.
Net interest income is sensitive to changes in market rates of interest and the
Company's asset/liability management procedures in coping with such changes.
The provision for loan losses is dependent on increases in the loan portfolio,
management's assessment of the collectibility of the loan portfolio, as well as
economic and market factors. Non-interest expenses are heavily influenced by
the growth of operations, with additional employees necessary to staff and open
new branch facilities and marketing expenses necessary to promote them. Growth
in the number of account relationships directly affects such expenses as data
processing costs, supplies, postage and other miscellaneous expenses.
Operating Results
For the three months ended June 30, 1999, net income was $292,000 or $0.10 per
share on a diluted basis, an increase of 8.2% from the net income of $318,000
or $0.10 per diluted share for the same period in 1998. For the first six
months of 1999, net income was $733,000 or $0.25 per diluted share, an increase
of 4.3% from the net income of $703,000 or $0.23 per diluted share for the
comparable period in 1998.
Net Interest Income
The major source of earnings for the Company is net interest income. The
related net interest margin represents the net interest income as a percentage
of average interest earning assets during the period. The following table sets
forth information relating to the Company's consolidated average balance sheets
and reflects the average yield on assets and cost of liabilities for the
periods ended June 30, 1999 and 1998. The yields and costs include adjustments
for accretion and amortization of deferred fees and costs.
Six Months Ended June 30,
1999 1998
Average Average Average Average
Assets Balance Interest Rate Balance Interest Rate
- ------------------------------------------------------------------------------
(Dollars in thousands)
Loans (1)(2) $371,681$15,221 8.19%$305,033$13,487 8.84%
Taxable investment securities 26,873 765 5.69 43,503 1,273 5.85
Investment securities exempt from
Federal income tax (1) 13,250 473 7.14 11,928 441 7.39
Interest bearing deposits with
financial institutions 1,889 42 4.45 6,678 179 5.36
Other interest earning assets 5,197 128 4.93 5,266 151 5.73
--------------- ------ ------ ------ ------
Total interest earning assets $418,890$16,629 7.94 $372,408$15,531 8.34
Non-interest earning assets 39,408 31,439
------ ------
Total Assets $458,298 $403,847
======= =======
Liabilities & Shareholders' Equity
Deposits:
NOW & money market accounts $163,844 $3,238 3.95%$121,657$2,366 3.89%
Savings deposits 22,825 241 2.11 20,458 328 3.21
Time deposits 143,225 3,799 5.30 160,389 4,681 5.84
Other borrowings 38,488 1,249 6.49 18,933 705 7.45
------ ------ ------ ------ ------ ------
Total interest bearing
liabilities 368,382 8,527 4.63 321,437 8,080 5.03
Demand deposits - non-interest
bearing 54,898 45,158
Other non-interest bearing
liabilities 2,841 6,735
Shareholders' equity 32,177 30,517
------ ------
Total liabilities & shareholders'
equity $458,298 $403,847
======= =======
Net Interest Income $8,102 $7,451
======= =======
Net Yield on Interest Earning Assets 3.87% 4.00%
====== ======
(1) Tax exempt income as reflected on a fully tax equivalent basis utilizing a
34% rate for all years presented.
(2) Non-accrual loans are included in average loans.
The decline in annualized net interest margin for the six months ended June 30,
1999 compared with the same period of 1998, is primarily attributable to a
decline in the rate earned on loans as market pressures continue to require
that the Bank be more competitive in commercial loan, home equity loan and
residential loan pricing. The situation was further impacted by promotional
deposit programs intended to fund the growth experienced by the Company during
the past three years. For the quarter ended June 30, 1999, the Company's
annualized net interest margin was 3.95% as compared to 3.79% for the quarter
ended March 31, 1999. Management attributes the increase to its revised
deposit pricing strategy which focuses on profitability as well as growth. Net
interest margin for all of 1998 was 3.95%. To the extent the Company continues
to grow utilizing promotional products, the net interest margin could
experience further compression.
The following table represents a reconciliation of fully tax equivalent net
interest income.
(In thousands)
Fully tax equivalent net interest income for the
six months ended June 30, 1998 $7,451
Change due to average balance fluctuations 1,208
Change due to interest rate fluctuations (557)
------
Fully tax equivalent net interest income for the
three months ended June 30, 1999 $8,102
======
Other Operating Income
Other operating income was $649,000 and $1.5 million for the quarter and six
month periods ended June 30, 1999, respectively, as compared to $607,000 and
$1.2 million for the comparable periods in 1998. During the quarter ended June
30, 1999, gain on sale of loans was $53,000 versus $0 for the comparable
quarter in 1998. Until late in 1998, residential loans were originated and
held in the Company's loan portfolio. For the six month period ended June 30,
1999, gain on sale of loans was $148,000 as compared to $17,000 for the same
period in 1998. For the six month period ended June 30, 1999, other
non-interest income increased $281,000 or 234.2% to $401,000 over the
comparable period in 1998. The increase was primarily the result of the
Company having received a lawsuit settlement of $70,000 and having settled
monthly billing claims and conversion related charges with its service provider
resulting in the reduction of previously accrued expenses by $94,000.
Other Operating Expenses
Other operating expenses were $4.1 million and $8.2 million for the three and
six-month periods ended June 30, 1999, respectively, as compared with $3.7
million and $7.1 million for the comparable periods, respectively, in 1998.
The higher level of expenses reflects the expenditures made to support the
Company's branch expansion. Salaries and benefits expense increased $205,000,
or 10.2% to $2.2 million for the quarter ended June 30, 1999, as compared to
the same period in 1998. Occupancy expenses increased $190,000 or 30.0%, to
$825,000 for the quarter ended June 30, 1999 versus the comparable period in
1998. For the six-month period ended June 30, 1999, occupancy expense increased
$468,000 or 39.9% to $1.6 million over the same period in 1998.
Financial Condition
Loans
The loan portfolio is the largest category of the Company's interest earning
assets. At June 30, 1999 total loans were $373.7 million, a decrease of $1.4
million, or 0.4% from the $375.1 million at December 31, 1998. The decrease
resulted primarily from continued competitive rate pressures in the commercial
and home equity loan areas.
The following table sets forth the composition of the loan portfolio:
June 30, 1999 December 31, 1998
Percent of Percent of
Amount Portfolio Amount Portfolio
--------- --------- --------- --------
(Dollars in thousands)
Commercial $98,998 26.48% $102,592 27.34%
Real estate - construction 15,434 4.13 15,517 4.14
Real estate - mortgage 177,676 47.53 168,833 45.00
Home equity 73,012 19.53 78,384 20.89
Installment 8,312 2.22 9,471 2.52
Credit cards 393 .11 418 .11
------- ------- -------- -------
Total gross loans 373,825 100.00% 375,215 100.00%
======= ========
Net deferred loan fees 126 135
Unaccreted discount resulting
from loss on transfer of loans
held-for-sale to portfolio (212) (263)
------- --------
Loans net of unearned discount
and net deferred loan fees 373,739 375,087
Allowance for loan losses (3,576) (3,824)
-------- -------
Net loans $370,163 $371,263
======= =======
Allowance to gross loans 0.96% 1.02%
Non-Performing Loans
The following table presents a summary of book value of non-performing assets
which includes (a) non-performing loans and (b) other real estate owned.
Non-performing loans include: (1) loans accounted for on a non-accrual basis;
(2) accruing loans contractually past due 90 days or more as to interest or
principal payment; and (3) loans whose terms have been renegotiated to provide
a reduction or deferral of interest or principal because of a deterioration in
the financial position of the borrower. The Company has a reporting and
control system to monitor non-performing loans.
Loans with principal or interest payments contractually due but not yet paid
are reviewed by senior management on a weekly basis and are placed on
non-accrual status when scheduled payments remain unpaid for 90 days or more,
unless the loan is both well-secured and in the process of collection.
Interest income on non-accrual loans is recorded when actually received in
contrast to the accrual basis, which records income over the period in which it
is earned, regardless of when it is received.
June 30, December 31,
1999 1998
(Dollars in thousands)
Non-performing loans:
Non-accrual $2,036 $ 268
90 days or more past due, still accruing 444 81
Restructured - -
------ -------
Total non-performing loans 2,480 349
Other real estate owned - 435
------ -------
$2,480 $ 784
====== ======
Non-performing loans to total loans,
net of unearned discount and net deferred loan fees 0.66% 0.09%
Non-performing loans to allowance for loan losses 69.35% 9.13%
The increase in non-performing loans of $2.1 million from December 31, 1998 to
June 30, 1999 is primarily the result of the deterioration of loans totaling
$2.3 million to one customer and related interests. During the current quarter,
$435,000 of the $2.3 million was charged off. Management is currently analyzing
options including a foreclosure action and ultimate sale of the underlying
collateral. Since one of the affected loans involves a forgery, a claim has
been initiated with the Bank's bond carrier. In addition, loans to another
customer in the amount of $444,000, which are classified as 90 days or more
past due and still accruing, are in the process of being refinanced by another
financial institution.
Potential Problem Loans
In addition to those loans disclosed under "Non-performing Loans," there are
certain loans in the portfolio which management has identified through its
problem loan identification system which exhibit a higher than normal credit
risk. However, these loans do not represent non-performing loans to the
Company. Management's review of the total loan portfolio to identify loans
where there is concern that the borrower will not be able to continue to
satisfy present loan repayment terms includes factors such as review of
individual loans, recent loss experience and current economic conditions.
Loans in this category include those with characteristics such as those that
have recent adverse operating cash flow or balance sheet trends, or have
general risk characteristics that the loan officer believes might jeopardize
the future timely collection of principal and interest payments. The principal
amount of loans in this category as of June 30, 1999 and December 31, 1998 were
approximately $1.3 million and $812,000, respectively. At June 30, 1999, there
were no significant loans which were classified by any bank regulatory agency
that are not included above as non-performing or as a potential problem loan.
Allowance for Loan Losses
The allowance for loan losses is maintained at a level considered adequate to
provide for potential future losses in the Company's loan portfolio. The level
of the allowance is based upon management's periodic and comprehensive
evaluation of the loan portfolio, as well as current and projected economic
conditions. Reports of examination furnished by Federal banking authorities
are also considered by management in this regard. These evaluations by
management in assessing the adequacy of the allowance include consideration of
past loan loss experience, changes in the composition of the loan portfolio,
the volume and condition of loans outstanding and current market and economic
conditions.
Loans are charged to the allowance for loan losses when deemed uncollectible by
management, unless sufficient collateral exists to repay the loan.
The following table summarizes transactions in the allowance for loan losses
for the periods indicated:
Six Months Ended
June 30,
1999 1998
(Dollars in thousands)
Allowance at beginning of period $3,824 $2,079
Provision for loan losses 300 477
Recoveries on loans previously charged off 3 6
Loans charged-off (551) (18)
----- ------
Balance at end of year 3,576 2,544
====== ======
Allowance as a % of total loans, net of
unearned discount and net deferred loan fees 0.96% 0.77%
Ratio of net charge-offs to average loans
outstanding (annualized) 0.29% 0.01%
Control of the Company's loan quality is continually monitored by management
and is reviewed by the Board of Directors and loan committee of the Bank on a
monthly basis, subject to the oversight by the Company's Board of Directors
through its members who serve on the loan committee. Independent external
review of the loan portfolio is provided by the examinations conducted by
regulatory authorities, independent public accountants in conjunction with
their annual audit, and an independent loan review performed by a consultant
engaged by the Board of Directors. The amount of additions to the allowance
for possible loan losses which are charged to earnings through the provision
for loan losses are determined based on a variety of factors, including actual
charge-offs during the year, historical loss experience, delinquent loans, and
an evaluation of current and prospective economic conditions in the market
area. Although management believes the allowance for possible loan losses is
adequate to cover any potential losses, there can be no assurance that the
allowance will prove sufficient to cover actual loan losses in the future.
Deposits
The following table sets forth deposits at the periods indicated:
June 30, Percent December 31,Percent
1999 or Deposits 1997 of Deposits
(Dollars in thousands)
NOW and money market accounts $165,163 42.97% $166,421 41.74%
Savings deposits 23,222 6.04 22,686 5.69
Time deposits 139,978 36.42 156,071 39.14
Demand deposits 55,961 14.56 53,557 13.43
-------- -------- ------- -------
Total $384,324 100.00% $398,735 100.00%
======= ======== ======= =======
Liquidity and Capital Resources
Shareholders' Equity and Capital Standards
The Company and the Bank are subject to various regulatory capital requirements
administered by the federal banking agencies. Failure to meet minimum capital
requirements can initiate certain mandatory, and possibly additional
discretionary, actions by regulators that, if undertaken, could have a direct
material effect on the Company's growth and financial condition. The
regulations require the Company and the Bank to meet specific capital adequacy
guidelines that involve quantitative measures of assets, liabilities, and
certain off-balance-sheet items as calculated under regulatory accounting
principles. The capital classifications are also subject to qualitative
judgments by the regulators about risk weightings and other factors.
Quantitative measures established by Federal regulations to ensure capital
adequacy require the Company and the Bank to maintain minimum ratios (set forth
in the table below) of Tier I capital (as defined in the regulations) to total
average assets (as defined in the regulations). As of June 30, 1999, the
Company's actual total capital to risk-weighted assets ratio was 15.14%. As of
June 30, 1999, the ratio of the Bank's total capital to risk-weighted assets
was 11.31% indicating that the Bank is considered "well capitalized."
The required ratios and the Company's and Bank's actual ratios at June 30,
1999, are presented below:
To Be Well Capitalized
For Capital Under Prompt Corrective
Actual Adequacy Purposes Action Provisions
Actual Ratio Actual Ratio Actual Ratio
(Dollars in thousands)
As of June 30, 1999
Total Capital (to Risk
Weighted Assets):
Consolidated $50,266 15.14% $26,555 8.0% Not Applicable
Bank 37,266 11.31 26,367 8.0 $32,959 10.0%
Tier 1 Capital (to Risk
Weighted Assets):
Consolidated 42,253 12.73 13,277 4.0 Not Applicable
Bank 33,690 10.22 13,184 4.0 19,775 6.0
Tier 1 Capital (To
Total Average Assets):
Consolidated 42,253 9.22 18,332 4.0 Not Applicable
Bank $33,690 7.38% $18,270 4.0% $22,838 5.0%
Operating Investing and Financing Activities
Liquidity management at the Bank involves planning to meet anticipated funding
needs at a reasonable cost. Liquidity management is guided by policies
formulated and monitored by the Company's senior management and the Bank's
asset/liability committee, which take into account the marketability of assets,
the sources and stability of funding and the level of unfunded commitments.
The Bank's principal sources of funds are deposits, short-term borrowings and
capital contributions by the Company. Borrowings by the Bank from the Federal
Reserve Bank of Chicago and Federal Home Loan Bank of Chicago provide
additional available sources of liquidity.
The Bank's core deposits, the most stable source of liquidity for community
banks due to the nature of long-term relationships generally established with
depositors and the security of deposit insurance provided by the FDIC, are
available to provide long-term liquidity. At June 30, 1999 and December 31,
1998, 40.73% and 38.96%, respectively, of the Company's total assets were
funded by NOW accounts and demand deposits.
Liquid assets refer to money market assets such as cash and due from banks,
federal funds sold and interest bearing time deposits with financial
institutions, as well as securities available for sale and securities
held-to-maturity with a remaining maturity less than one year. Net liquid
assets represent the sum of the liquid asset categories less the amount of
assets pledged to secure public funds. As of June 30, 1999 and December 31,
1998, net liquid assets totaled approximately $39.1 million and $52.7 million,
respectively.
The Company's cash flows are composed of three classifications: cash flows
from operating activities, cash flows from investing activities, and cash flows
from financing activities. Net cash provided by operating activities consists
primarily of earnings. Net cash provided by investing activities, consisting
primarily of loan and investment funding, was $2.3 million at June 30, 1999 as
compared to cash used of $45.3 million for the same period in 1998. The
decreased usage is primarily attributed to a decline in loan volume in 1999.
Net cash used in financing activities, consisting primarily of deposit
activities, was $12.2 million at June 30, 1999 as compared to cash provided of
$57.3 million at June 30, 1998. The decrease in cash provided is primarily the
result of a decline in deposit balances during the first six months of 1999.
Year 2000 Issue
The year 2000 will be the first century date change ever for an automated
society. For years, information systems were designed using a two-digit date
field. This practice has created an environment in which older generation
software programs may not be able to discern the difference between the year
2000 and the year 1900. This problem could result in the failure of computers
and/or information systems. Due to its reliance on both computers and
information systems, in early 1998, the Company began the process of
identifying and assessing the degree to which its hardware and software would
be impacted by the date change.
A committee, comprised of representatives from all major operating areas, was
created to assess whether or not the Company's internal and external systems,
particularly those that are mission-critical, are year 2000 compliant. The
committee has developed and adopted an action plan that addresses the Company's
year 2000 renovation, testing, contingency planning and management review
process. In addition the Company has developed a due diligence process to
monitor and evaluate the efforts of external third party suppliers to achieve
year 2000 readiness. The committee has developed and implemented a written
testing plan for both internal and external mission-critical systems and
finalized substantially all testing of internal mission-critical systems by
December 31, 1998. A business resumption contingency plan that defines
scenarios for mission-critical systems failing to achieve year 2000 readiness
and evaluates the Company's options has been completed and will be updated as
necessary.
The Company is committed to year 2000 compliance and, as such, has taken steps
to educate its customers in identifying potential year 2000 problems. A year
2000 risk assessment of borrowers with loans in excess of $100,000 has been
completed. The Company is satisfied that these borrowers represent a low year
2000 risk; however, the Company has instituted a program to assist in the
management of underwriting risk.
As of June 30, 1999, year 2000 compliance costs incurred are estimated to be
$105,000 to $115,000. It is estimated that the Company will spend $150,000 to
$175,000 in total. The only remaining material expenditure the Company expects
to make relates to the replacement of the current voice response unit estimated
at $45,000. However, this is a complex issue and no assurances can be given
that compliance will be achieved without any unplanned outlays that would
affect future financial results.
Forward Looking Statements
Statements made about the Company's future economic performance, strategic
plans or objectives, revenues or earnings projections, or other financial
items and similar statements are not guarantees of future performance, but
are forward looking statements. By their nature, these statements are
subject to numerous uncertainties that could cause actual results to differ
materially from those in the statements. Important factors that might cause
the Company's actual results to differ materially include, but are not
limited to, the following:
. Federal and state legislative and regulatory developments;
. The impact of continued loan and deposit promotions on the Company's net
interest margin;
. The impact of opening, staffing and operating new branch facilities;
. Changes in management's estimate of the adequacy of the allowance for
loan losses;
. Changes in the level and direction of loan delinquencies and write-offs;
. Interest rate movements and their impact on customer behavior and the
Company's net interest margin;
. The impact of repricing and competitors' pricing initiatives on loan and
deposit products;
. The Company's ability to adapt successfully to technological changes to
meet customers' needs and developments in the marketplace;
. The Company's ability to access cost effective funding;
. Changes in financial markets and general economic conditions; and
. The Company's ability to achieve year 2000 compliance without incurring
material unplanned expenditures.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company's net income is dependent on its net interest income. Net interest
income is susceptible to interest rate risk to the degree that interest bearing
liabilities mature or reprice on a different basis than interest earning
assets. When interest bearing liabilities mature or reprice more quickly than
interest earning assets in a given period, a significant increase in market
rates of interest could adversely affect net interest income. Similarly, when
interest earning assets mature or reprice more quickly than interest bearing
liabilities, falling interest rates could result in a decrease in net income.
In order to evaluate its asset/liability sensitivity, management employs a
measurement tool which determines exposure to changes in interest rates by
measuring the percentage change in net interest income due to changes in rates
over a one-year time horizon. Management measures such percentage change
assuming an instantaneous permanent parallel shift in the yield curve of 100
and 200 basis points, both upward and downward. The model uses an option-based
pricing approach to estimate the sensitivity of mortgage loans. The most
significant embedded option in these types of assets is the prepayment option
of the borrowers. The model uses various prepayment assumptions depending upon
the type of mortgage instrument (residential mortgages, commercial mortgages,
mortgage-backed securities, etc.). Prepayment rates for mortgage instruments
ranged form 5 to 45 CPR (Constant Prepayment Rate) as of June 30, 1999 and
December 31, 1998. For administered rate core deposits (e.g. NOW and savings
accounts), the model utilizes interest rate floors equal to 100 basis points
below their current levels.
Utilizing this measurement concept, the interest rate risk of the Company,
expressed as a percentage change in net interest income over a one-year time
horizon due to changes in interest rates, at June 30, 1999 and December 31,
1998, was as follows:
Basis Point Change
+200 +100 -100 -200
At June 30, 1999 (2.7%) (1.3%) 0.7% (0.7)%
At December 31, 1998 (9.5%) (4.8%) 3.9% 5.6%
The Company does not currently engage in trading activities or use derivative
instruments to control interest rate risk. Although such activities may be
permitted with the approval of the Board of Directors of the Bank, the Company
does not intend to engage in such activities in the immediate future.
Interest rate risk is the most significant market risk affecting the Company.
Other types of market risk, such as foreign currency exchange rate risk and
commodity price risk, do not arise in the normal course of the Company's
business activities.
PART II: OTHER INFORMATION
Item 4: Submission of Matters to a Vote of Security Holders.
(a) The Annual Meeting of Stockholders was held on May 26, 1999.
(c) At the Annual Meeting of Stockholders the following matters were submitted
to a vote of stockholders:
(1) The election of three directors to the Board of Directors to serve for a
three year term or until their successors are elected and qualified.
Director Votes For Votes Withheld
Wilbur G. Meinen 2,070,798 209,943
Avrom H. Goldfeder 2,073,798 206,943
Sherwin Koopmans 2,074,798 205,943
(2) The approval of the Success Bancshares, Inc. 1998 Employee Stock Purchase
Plan.
The purpose of the Employee Stock Purchase Plan is to encourage and facilitate
the purchase of Common Stock by eligible employees of the Company and the Bank
in order to provide a further incentive for eligible employees to promote the
best interests of the Company and an additional opportunity to participate in
the Company's economic progress.
Votes For Votes Against Votes Withheld Broker Nonvotes
1,345,029 253,062 11,425 671,225
(3) The approval of the Success Bancshares, Inc. 1999 Stock Option Plan.
The purpose of the 1999 Stock Option Plan is to enhance the long-term
stockholder value of the Company by offering opportunities to employees,
directors, officers, consultants, agents, advisors and independent contractors
of the Company and the Bank to participate in the Company's growth and success
and to encourage them to remain in the service of the Company and the Bank and
to acquire and maintain stock ownership in the Company.
Votes For Votes Against Votes Withheld Broker Nonvotes
1,238,769 356,752 13,995 671,225
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit
Number Exhibit Title
3.1 Second Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's Form S-1
Registration Statement (No. 333-32561) filed with the Securities and
Exchange Commission (the "Commission") on July 31, 1997).
3.1.1 Certificates of Designations of Series B Junior Participating
Preferred Stock
3.2 By-laws of the Company (incorporated by reference to Exhibit 3.2 of
The Company's Form S-1 Registration Statement (No. 333-32561) filed
with the Commission on July 31, 1997).
3.2.1 Amendment No. 1 to By-laws
4.1 Form of Subordinated Indenture relating to the Junior Subordinated
Debentures (incorporated by reference to Exhibit 4.1 of the Form S-1
Registration Statement of the Company and Success Capital Trust I
("Success Capital") (No. 333-51271 and No. 333-51271-01) filed with
the Commission on April 28, 1998).
4.2 Form of Junior Subordinated Debenture Certificate (included as an
exhibit to Exhibit 4.1).
4.3 Certificate of Trust of Success Capital (incorporated by reference to
Exhibit 4.3 of the Form S-1 Registration Statement of the Company and
Success Capital (No. 333-51271 and 333-51271-01) filed with the
Commission on April 28, 1998).
4.4 Form of Amended and Restated Trust Agreement of Success Capital
(incorporated by reference to Exhibit 4.4 of the Form S-1
Registration Statement of the Company and Success Capital (No.
333-51271 and 333-51271-01) filed with the Commission on April 28,
1998).
4.5 Form of Trust Preferred Security Certificate of Success Capital
(included as an exhibit to Exhibit 4.4).
4.6 Form of Common Security Certificate of Success Capital (included as
an exhibit to Exhibit 4.4).
4.7 Form of Guarantee Agreement of the Company relating to the Trust
Preferred Securities (incorporated by reference to Exhibit 4.7 of the
Form S-1 Registration Statement of the Company and Success Capital
(No. 333-51271 and 333-51271-01) filed with the Commission on April
28, 1998).
4.8 Form of Rights Agreement, dated as of August 1, 1998, between the
Company and Harris Trust and Savings Bank, which includes as Exhibit
B thereto the Form of Right Certificate (incorporated by reference to
Exhibit 1 of the Company's Form 8-A Registration Statement (File No.
001-14381) filed with the Commission on August 6, 1998).
10.1 $10 Million Business Loan Agreement, dated January 13, 1997, between
the Company and Cole Taylor Bank (incorporated by reference to
Exhibit 10.1 of the Company's 1997 Annual Report on Form 10-K filed
with the Commission on March 31, 1998).
10.2 Success Bancshares, Inc. 1995 Employee Stock Option Plan
(incorporated by reference to Exhibit 10.2 of the Company's Form S-1
Registration Statement (No. 333-32561) filed with the Commission on
July 31, 1997).
(1) 10.3 Employment Agreement dated as of April 15, 1999 between the Bank and
Laurie K. Breitenstein.
10.4 Success Bancshares, Inc. 1999 Stock Option Plan (incorporated by
reference to Exhibit 10.4 of the Company's Annual Report on Form 10-K
filed with the Commission on March 30, 1999).
10.5 Lease with respect to Lincolnwood branch banking facility (October,
1991) (incorporated by reference to Exhibit 10.5 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Securities and Exchange Commission on July 31, 1997).
10.6 Lease with respect to Lincoln Park branch banking facility (April,
1993) (incorporated by reference to Exhibit 10.6 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Commission on July 31, 1997).
10.7 Lease with respect to Northbrook branch banking facility (December,
1994) (incorporated by reference to Exhibit 10.7 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Commission on July 31, 1997).
10.8 Lease with respect to Deerfield/Riverwoods branch banking facility
(September, 1995) (incorporated by reference to Exhibit 10.8 of the
Company's Form S-1 Registration Statement (No. 333-32561) filed with
the Commission on July 31, 1997).
10.9 Employment Agreement between the Bank and Christa N. Calabrese dated
as of August 1, 1998, as amended (incorporated by reference to
Exhibit 10.9 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.10 Employment Agreement between the Bank and Kurt C. Felde dated as of
August 1, 1998, as amended (incorporated by reference to Exhibit
10.10 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.11 Employment Agreement between the Bank and Ronald W. Tragasz dated as
of August 1,1 998, as amended (incorporated by reference to Exhibit
10.11 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.12 Employment Agreement between the Bank and Marlene Sachs dated as of
August 1, 1998 (incorporated by reference to Exhibit 10.12 of the
Company's Form 10-Q filed with the Commission on November 13, 1998).
10.13 Stock Option Agreement dated as of September 23, 1998 between the
Company and Christa N. Calabrese (incorporated by reference to
Exhibit 10.13 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.14 Stock Option Agreement dated as of June 25, 1998 between the Company
and Kurt C. Felde (incorporated by reference to Exhibit 10.14 of the
Company's Form 10-Q filed with the Commission on November 13, 1998).
10.15 Stock Option Agreement dated as of September 23, 1998 between the
Company and Ronald W. Tragasz (incorporated by reference to Exhibit
10.15 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.16 Stock Option Agreement dated as of September 23, 1998 between the
Company and Marlene Sachs (incorporated by reference to Exhibit 10.16
of the Company's Form 10-Q filed with the Commission on November 13,
1998).
10.17 Stock Option Agreement dated as of August 26, 1998 between the
Company and Sherwin Koopmans (incorporated by reference to Exhibit
10.17 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.18 Stock Option Agreement dated as of August 26, 1998 between the
Company and George M. Ohlhausen (incorporated by reference to Exhibit
10.18 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.19 Stock Option Agreement dated as of August 26, 1998 between the
Company and Charles G. Freund (incorporated by reference to Exhibit
10.19 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.20 Stock Option Agreement dated as of August 26, 1998 between the
Company and Norman D. Rich (incorporated by reference to Exhibit
10.20 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.21 Amendment No. 1 to Employment Agreement dated as of August 1, 1998
between the Bank and Marlene Sachs (incorporated by reference to
Exhibit 10.21 of the Company's Annual Report on Form 10-K filed with
the Commission on March 30, 1999).
10.22 Stock Option Agreement dated as of August 26, 1998 between the
Company and Avrom H. Goldfeder (incorporated by reference to Exhibit
10.22 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.23 Stock Option Agreement dated as of August 26, 1998 between the
Company and Glen Wherfel (incorporated by reference to Exhibit 10.23
of the Company's Form 10-Q filed with the Commission on November 13,
1998).
10.24 Employment Agreement dated as of December 16, 1998 between the Bank
and Wilbur G. Meinen (incorporated by reference to Exhibit 10.24 of
the Company's Annual Report on Form 10-K filed with the Commission on
March 30, 1999).
10.25 Stock Option Agreement dated as of December 16, 1998 between the
Company and Kurt C. Felde (incorporated by reference to Exhibit 10.25
of the Company's Annual Report on Form 10-K filed with the Commission
on March 30, 1999).
10.26 Stock Option Agreement dated as of December 16, 1998 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.26 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.27 Stock Option Agreement dated as of January 27, 1999 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.27 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.28 Success Bancshares, Inc. 1998 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.28 of the Company's Annual
Report on Form 10-K filed with the Commission on March 30, 1999).
10.29 Amendment No. 1 to 1995 Stock Option Plan (incorporated by reference
to Exhibit 10.29 of the Company's Annual Report on Form 10-K filed
with the Commission on March 30, 1999).
10.30 Restricted Stock Agreement dated as of December 16, 1998 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.30 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.31 Lease with respect to Chicago downtown branch banking facility (May,
1998) (incorporated by reference to Exhibit 10.31 of the Company's
Annual Report on Form 10-K filed with the Commission on March 30,
1999).
10.32 Amendment No. 2 to Employment Agreement dated as of December 16,
1998 between the Bank and Christa N. Calabrese (incorporated by
reference to Exhibit 10.32 of the Company's Form 10-Q filed with the
Commission on May 13, 1999).
(1) 10.33 Agreement dated April 28, 1999 between the Company and Ronald W.
Tragasz.
(1) 10.34 Stock Option Agreement dated April 28, 1999 between the Company and
Ronald W. Tragasz.
(1) 10.35 Sublease with respect to Corporate Center (April, 1999).
(1) Filed herewith
(b) Reports on Form 8K
None
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Success Bancshares, Inc.
(Registrant)
August 13, 1999 /s/
- ----------------------- ----------------------------
Date Wilbur G. Meinen
President & Chief Executive Officer
August 13, 1999 /s/
- ------------------------- --------------------------------
Date Kurt C. Felde
Executive Vice President
& Chief Financial Officer
EXHIBIT INDEX
Exhibit
Number Exhibit Title
3.1 Second Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's Form S-1
Registration Statement (No. 333-32561) filed with the Securities and
Exchange Commission the ("Commission") on July 31, 1997).
3.1.1 Certificates of Designations of Series B Junior Participating
Preferred Stock
3.2 By-laws of the Company (incorporated by reference to Exhibit 3.2 of
The Company's Form S-1 Registration Statement (No. 333-32561) filed
with the Commission on July 31, 1997).
3.2.1 Amendment No. 1 to By-laws
4.1 Form of Subordinated Indenture relating to the Junior Subordinated
Debentures (incorporated by reference to Exhibit 4.1 of the Form S-1
Registration Statement of the Company and Success Capital Trust I
("Success Capital") (No. 333-51271 and No. 333-51271-01) filed with
the Commission on April 28, 1998).
4.2 Form of Junior Subordinated Debenture Certificate (included as an
exhibit to Exhibit 4.1).
4.3 Certificate of Trust of Success Capital (incorporated by reference to
Exhibit 4.3 of the Form S-1 Registration Statement of the Company and
Success Capital (No. 333-51271 and 333-51271-01) filed with the
Commission on April 28, 1998).
4.4 Form of Amended and Restated Trust Agreement of Success Capital
(incorporated by reference to Exhibit 4.4 of the Form S-1
Registration Statement of the Company and Success Capital (No.
333-51271 and 333-51271-01) filed with the Commission on April 28,
1998).
4.5 Form of Trust Preferred Security Certificate of Success Capital
(included as an exhibit to Exhibit 4.4).
4.6 Form of Common Security Certificate of Success Capital (included as
an exhibit to Exhibit 4.4).
4.7 Form of Guarantee Agreement of the Company relating to the Trust
Preferred Securities (incorporated by reference to Exhibit 4.7 of the
Form S-1 Registration Statement of the Company and Success Capital
(No. 333-51271 and 333-51271-01) filed with the Commission on April
28, 1998).
4.8 Form of Rights Agreement, dated as of August 1, 1998, between the
Company and Harris Trust and Savings Bank, which includes as Exhibit
B thereto the Form of Right Certificate (incorporated by reference to
Exhibit 1 of the Company's Form 8-A Registration Statement (File No.
001-14381) filed with the Commission on August 6, 1998).
10.1 $10 Million Business Loan Agreement, dated January 13, 1997, between
the Company and Cole Taylor Bank (incorporated by reference to
Exhibit 10.1 of the Company's 1997 Annual Report on Form 10-K filed
with the Commission on March 31, 1998).
10.2 Success Bancshares, Inc. 1995 Employee Stock Option Plan
(incorporated by reference to Exhibit 10.2 of the Company's Form S-1
Registration Statement (No. 333-32561) filed with the Commission on
July 31, 1997).
(1) 10.3 Employment Agreement dated as of April 15, 1999 between the Bank and
Laurie K. Breitenstein.
10.4 Success Bancshares, Inc. 1999 Stock Option Plan (incorporated by
reference to Exhibit 10.4 of the Company's Annual Report on Form 10-K
filed with the Commission on March 30, 1999).
10.5 Lease with respect to Lincolnwood branch banking facility (October,
1991) (incorporated by reference to Exhibit 10.5 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Securities and Exchange Commission on July 31, 1997).
10.6 Lease with respect to Lincoln Park branch banking facility (April,
1993) (incorporated by reference to Exhibit 10.6 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Commission on July 31, 1997).
10.7 Lease with respect to Northbrook branch banking facility (December,
1994) (incorporated by reference to Exhibit 10.7 of the Company's
Form S-1 Registration Statement (No. 333-32561) filed with the
Commission on July 31, 1997).
10.8 Lease with respect to Deerfield/Riverwoods branch banking facility
(September, 1995) (incorporated by reference to Exhibit 10.8 of the
Company's Form S-1 Registration Statement (No. 333-32561) filed with
the Commission on July 31, 1997).
10.9 Employment Agreement between the Bank and Christa N. Calabrese dated
as of August 1, 1998, as amended (incorporated by reference to
Exhibit 10.9 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.10 Employment Agreement between the Bank and Kurt C. Felde dated as of
August 1, 1998, as amended (incorporated by reference to Exhibit
10.10 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.11 Employment Agreement between the Bank and Ronald W. Tragasz dated as
of August 1,1 998, as amended (incorporated by reference to Exhibit
10.11 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.12 Employment Agreement between the Bank and Marlene Sachs dated as of
August 1, 1998 (incorporated by reference to Exhibit 10.12 of the
Company's Form 10-Q filed with the Commission on November 13, 1998).
10.13 Stock Option Agreement dated as of September 23, 1998 between the
Company and Christa N. Calabrese (incorporated by reference to
Exhibit 10.13 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.14 Stock Option Agreement dated as of June 25, 1998 between the Company
and Kurt C. Felde (incorporated by reference to Exhibit 10.14 of the
Company's Form 10-Q filed with the Commission on November 13, 1998).
10.15 Stock Option Agreement dated as of September 23, 1998 between the
Company and Ronald W. Tragasz (incorporated by reference to Exhibit
10.15 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.16 Stock Option Agreement dated as of September 23, 1998 between the
Company and Marlene Sachs (incorporated by reference to Exhibit 10.16
of the Company's Form 10-Q filed with the Commission on November 13,
1998).
10.17 Stock Option Agreement dated as of August 26, 1998 between the
Company and Sherwin Koopmans (incorporated by reference to Exhibit
10.17 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.18 Stock Option Agreement dated as of August 26, 1998 between the
Company and George M. Ohlhausen (incorporated by reference to Exhibit
10.18 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.19 Stock Option Agreement dated as of August 26, 1998 between the
Company and Charles G. Freund (incorporated by reference to Exhibit
10.19 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.20 Stock Option Agreement dated as of August 26, 1998 between the
Company and Norman D. Rich (incorporated by reference to Exhibit
10.20 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.21 Amendment No. 1 to Employment Agreement dated as of August 1, 1998
between the Bank and Marlene Sachs (incorporated by reference to
Exhibit 10.21 of the Company's Annual Report on Form 10-K filed with
the Commission on March 30, 1999).
10.22 Stock Option Agreement dated as of August 26, 1998 between the
Company and Avrom H. Goldfeder (incorporated by reference to Exhibit
10.22 of the Company's Form 10-Q filed with the Commission on
November 13, 1998).
10.23 Stock Option Agreement dated as of August 26, 1998 between the
Company and Glen Wherfel (incorporated by reference to Exhibit 10.23
of the Company's Form 10-Q filed with the Commission on November 13,
1998).
10.24 Employment Agreement dated as of December 16, 1998 between the Bank
and Wilbur G. Meinen (incorporated by reference to Exhibit 10.24 of
the Company's Annual Report on Form 10-K filed with the Commission on
March 30, 1999).
10.25 Stock Option Agreement dated as of December 16, 1998 between the
Company and Kurt C. Felde (incorporated by reference to Exhibit 10.25
of the Company's Annual Report on Form 10-K filed with the Commission
on March 30, 1999).
10.26 Stock Option Agreement dated as of December 16, 1998 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.26 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.27 Stock Option Agreement dated as of January 27, 1999 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.27 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.28 Success Bancshares, Inc. 1998 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.28 of the Company's Annual
Report on Form 10-K filed with the Commission on March 30, 1999).
10.29 Amendment No. 1 to 1995 Stock Option Plan (incorporated by reference
to Exhibit 10.29 of the Company's Annual Report on Form 10-K filed
with the Commission on March 30, 1999).
10.30 Restricted Stock Agreement dated as of December 16, 1998 between the
Company and Wilbur G. Meinen (incorporated by reference to Exhibit
10.30 of the Company's Annual Report on Form 10-K filed with the
Commission on March 30, 1999).
10.31 Lease with respect to Chicago downtown branch banking facility (May,
1998) (incorporated by reference to Exhibit 10.31 of the Company's
Annual Report on Form 10-K filed with the Commission on March 30,
1999).
10.32 Amendment No. 2 to Employment Agreement dated as of December 16,
1998 between the Bank and Christa N. Calabrese (incorporated by
reference to Exhibit 10.32 of the Company's Form 10-Q filed with the
Commission on May 13, 1999).
(1) 10.33 Agreement dated April 28, 1999 between the Company and Ronald W.
Tragasz.
(1) 10.34 Stock Option Agreement dated April 28, 1999 between the Company and
Ronald W. Tragasz.
(1) 10.35 Sublease with respect to Corporate Center (April, 1999).
(1) Filed herewith
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
This schedule contains summary financial information extracted from the
quarterly unaudited financial statements of Success Bancshares, Inc. for the six
months ended June 30, 1999, and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
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</TABLE>
SUBLEASE
THIS SUBLEASE is made and entered into as of the 28th day of April, 1999
by and between ALTERNATIVE RESOURCES CORPORATION ("Sublandlord") and SUCCESS
NATIONAL BANK ("Subtenant").
WITHNESSETH:
WHEREAS, Sublandlord is the tenant under that certain Office Lease dated
July 15, 1996 and as thereafter amended (the "Prime Lease"), a copy of which
is attached hereto as Exhibit A, with EQUITY OFFICE PROPERTIES (successor to
NEW YORK LIFE INSURANCE COMPANY), as landlord ("Prime Landlord"), with respect
to the office space commonly known as Suite 300, Building 100, Tri-State
International Office Center, Lincolnshire, Illinois, and as more particularly
described in the Prime Lease (the "Premises"); and
WHEREAS, Subtenant desires to sublease from Sublandlord, and Sublandlord
desires to sublease to Subtenant, the Premises, which contain 26,578 rentable
square feet square feet and are depicted on Exhibit B attached hereto, upon
the terms and conditions contained in this Sublease.
NOW, THEREFORE, for and in consideration of the covenants and agreements
set forth in this Sublease, Sublandlord and Subtenant agree as follows:
1. Incorporation of Prime Lease. All of the terms of the Prime Lease are
hereby incorporated into this Sublease and shall, as between Sublandlord and
Subtenant (as if they were the Landlord and Tenant, respectively, under the
Prime Lease) constitute the terms of this Sublease, except to the extent they
are inapplicable to, inconsistent with, or modified by the terms of this
Sublease. Subtenant acknowledges that it has thoroughly reviewed the Prime
Lease, that it is familiar with the terms and conditions thereof, and that it
agrees to be bound thereby in accordance with the terms and conditions
contained in this Sublease. Notwithstanding anything to the contrary
contained herein, the following Sections and Subsections of the Prime Lease
are not made a part of this Sublease: 5; 23; 28.15; 28.17; 28.18; 28.19;
28.20; 28.22; Exhibit E, and Section 3 of the First Amendment to Office Lease.
2. Demise of Premises: Term. Sublandlord hereby leases to Subtenant and
Subtenant hereby accepts from Sublandlord the Premises for a term (the "Term")
commencing on the one hundred twentieth (120th) day following the receipt of
the consent of the Prime Landlord to this Sublease (the "Commencement Date")
and ending on October 31, 2003, unless sooner terminated or unless extended as
provided herein. So long as Subtenant is not in default hereunder, Subtenant
shall have the right to extend the Term for an additional three (3) year
period commencing on November 1, 2003 and ending on October 31, 2006 (the
"Extended Term") by giving written notice of extension to Sublandlord on or
before October 31, 2002. The terms of this Sublease shall govern any
extension of the Term. As soon as possible after the Commencement Date
Sublandlord and Subtenant shall execute and exchange a memorandum (in the form
attached hereto as Exhibit C) confirming the Commencement Date. If
Sublandlord does not deliver possession of the Premises to Subtenant by the
aforesaid 120th day, then the Rent (as defined below) shall abate for the
first full month of the Term, and if Sublandlord does not deliver possession
of the Premises to Subtenant by the one hundred fiftieth (150th) day following
receipt of the consent of the Prime Landlord to this Sublease, then the Rent
shall abate at the rate of two (2) month's Rent for each month that possession
is delayed after said 150th day; provided, however, if Sublandlord does not
deliver possession of the Premises to Subtenant by the one hundred eightieth
(180th) day following receipt of the consent of the Prime Landlord to this
Sublease, then Subtenant shall have the right to terminate this Sublease by
delivering written notice of termination to Sublandlord at any time after said
180th day and before possession of the Premises is delivered to Subtenant.
3. Rent.
A. Base Rent.
(i) Commencing on the Commencement Date, Subtenant shall pay
Sublandlord Base Rent at the rates per annum set forth below, payable in equal
monthly installments, on the first day of each month during the term. If the
Commencement Date is other than the first day of a calendar month, the first
payment of Base Rent shall be payable on the Commencement Date and shall be
equal to a proportionate part of the monthly installment of Base Rent.
(ii) The Base Rent per annum for the year commencing on the
Commencement Date shall be Three Hundred Seventy Two Thousand Ninety Two and
No/100 Dollars ($372,092.00) payable in equal monthly installments of Thirty
One Thousand Seven and 67/100 Dollars ($31,007.67). During the Term the Base
Rent per annum for the year commencing on any anniversary of the Commencement
Date shall be the product of the Base Rent in effect immediately prior to such
anniversary, multiplied by one and three one-hundredths (1.03).
(iii) During the Extended Term the Base Rent shall be as follows:
Period Annual Base Rent Monthly Base Rent
11/01/03-10/31/04 $ 503,918.88 $ 41,993.24
11/01/04-10/31/05 519,068.34 43,255.70
11/01/0510/31/06 534,483.58 44,540.30
B. Additional Rent.
(i) Subtenant shall, within twenty (20) days after demand therefor,
pay to Sublandlord, any Additional Rent and any Per Square Foot Operating
Expenses and Per Square Foot Taxes payable by Sublandlord pursuant to the
Prime Lease with respect to the Term of this Sublease. Subtenant shall not be
responsible for any portion of the Adjusted Monthly Base Rent Described in
subsections 4.02A and B of the Prime Lease.
(ii) Sublandlord shall promptly furnish Subtenant with any billings,
statements and other information received by Sublandlord from Prime Landlord
with respect to any year of the Term. Sublandlord shall cooperate with
Subtenant's efforts to review Prime Landlord's books and records to verify
Operating Expenses and Taxes and shall permit Subtenant to conduct such review
in Sublandlord's name, subject in each instance to the prior written approval
of Sublandlord, such approval not be unreasonably withheld, conditioned or
delayed. Any such review shall be performed pursuant to the terms of the
Prime Lease. All expenses of any review undertaken by Subtenant shall be
borne by Subtenant and all refunds and/or adjustments resulting therefrom
shall be remitted to Sublandlord who shall then remit all of such refunds, net
of Sublandlord's reasonable expenses, to Subtenant.
C. Payment of Rent. Subtenant shall pay Base Rent, Additional Rent, and
all other amounts due from Subtenant to Sublandlord pursuant to this Sublease
at such place as Sublandlord may designate in writing, in lawful money of the
United States of America, without demand and without any deduction, setoff, or
abatement. Sublandlord shall have the same rights and remedies with respect
to the nonpayment of Additional Rent and any other amounts due from Subtenant
to Sublandlord pursuant to this Sublease as with respect to the nonpayment of
Base Rent. As used in this Lease, the term "Rent" or "rent" shall include
Base Rent, Additional Rent, and all other amounts due from Subtenant to
Sublandlord pursuant to this Sublease. Any delinquent Rent shall bear
interest from the due date until paid or shall be subject to a flat late
charge as provided in Subsection 28.01 of the Prime Lease.
4. Use. Subtenant shall use and occupy the Premises only for general
office and banking purposes.
5. Condition and Maintenance of Premises. Subtenant subleases the
Premises from Sublandlord in its "as is" condition, without requiring any
further alterations, improvements or repairs to be made by Sublandlord.
Subtenant represents that it has inspected the Premises and has found the same
to be in satisfactory condition and that it is not relying on any
representations or warranties of Sublandlord or Sublandlord's agents or
employees with respect to the condition of the Premises.
6. Sublandlord and Subtenant's Covenants. Subtenant agrees that
Subtenant will not do anything which would constitute a default under the
Prime Lease or omit to do anything which Subtenant is obligated to so under
the terms of this Sublease and the omission of which would constitute a
default under the Prime Lease. Sublandlord agrees that Sublandlord will not
enter into any modification, termination or other agreement or take or omit to
take any action with respect to the Prime Lease that would prevent or
adversely affect the use by Subtenant of the Premises in accordance with the
terms of this Sublease or increase the obligations of Subtenant hereunder.
Sublandlord agrees to perform all of its obligations under the Prime Lease as
and when due.
7. Utilities and Services. Subtenant shall be entitled to all those
services and utilities which the Prime Landlord is required by the Prime Lease
to provide. Subtenant shall look solely to the Prime Landlord for the
provision of such services and utilities, and Sublandlord shall not be
responsible for the Prime Landlord's failure to provide the same. To the
extent that the Prime Landlord charges Sublandlord for any additional services
provided at Subtenant's request to the Premises beyond that required to be
supplied by the Prime Lease without charge (i.e. additional cleaning, after
hours "HVAC," etc.), Subtenant shall pay such charges, as Rent, within ten
(10) days after demand therefor. If the Prime Landlord will not accept such
requests directly from Subtenant, Subtenant is hereby authorized to submit the
same in the name of Sublandlord. Sublandlord agrees to use its best efforts
to assure performance by Prime landlord of its obligations under the Prime
Lease. Notwithstanding the foregoing, Subtenant acknowledges (i) that its
electricity usage in the Premises is separately metered and is billed directly
to Subtenant by ComEd and (ii) that Subtenant shall be responsible for paying
the cost of such electricity.
8. Shortening of Time Periods. Notwithstanding the provisions of
Paragraph 1 of this Sublease, the time limits contained in the incorporated
provisions of the Prime Lease for the giving of notices, making of demands or
performing of any act, condition or covenant on the part of tenant under the
Prime Lease, or for the exercise by the tenant thereunder of any right, remedy
or option contained in any of the incorporated provisions of the Prime Lease
are changed for the purpose of incorporation herein by reference by shortening
the same, in each instance, by five (5) days, so that, in each instance,
Subtenant shall have five (5) days less time to observe or perform hereunder
than Sublandlord has as tenant under the Prime Lease. If the incorporated
provisions of the Prime Lease only allow five (5) days or less for Subtenant
to perform any act or to correct any failure relating to the Premises or this
Sublease, then, except in the event of an emergency, Subtenant shall
nevertheless be allowed three (3) days to perform any such act or correct any
such failure.
9. Termination of Prime Lease. If the Prime Lease is terminated for any
reason, this Sublease shall terminate simultaneously.
10. Indemnification. Subtenant shall indemnify and hold harmless
Sublandlord from and against any and all claims, liabilities, costs and
expenses, including reasonable attorneys' fees and costs, asserted against or
sustained by Sublandlord under the Prime Lease by reason of any breach or
violation by Subtenant of this Sublease or of the incorporated provisions of
the Prime Lease, including a termination of the Prime Lease caused by or
resulting from any such breach or violation by Subtenant. Sublandlord shall
promptly notify Subtenant of any such claim and shall promptly deliver to
Subtenant a copy of any summons or other process, pleading or notice issued in
any action or proceeding asserting any such claim. Subtenant shall have the
right to assume the defense of any such action or proceeding, at Subtenant's
sold cost and expense. If Subtenant so assumes such defense, Subtenant shall
not be liable for any of the fees and expenses of any separate counsel
retained by any indemnified party to participate in or monitor such defense
provided Subtenant diligently pursues such defense.
11. Prime Landlord's Consents. If the consent or approval of Prime
Landlord is required under the Prime Lease with respect to any matter relating
to the Premises or this Sublease, it shall also be required hereunder. As to
any such matter: (a) Subtenant shall furnish to Sublandlord a copy of any
request for consent or approval delivered by Subtenant to Prime Landlord and
any response thereto delivered by Prime Landlord to Subtenant, within five (5)
days of such delivery; and (b) Sublandlord shall, if requested, assist
Subtenant in obtaining such consent or approval from Prime Landlord and shall
allow Subtenant to seek the same in Sublandlord's name, but Sublandlord shall
not be responsible for obtaining such consent or approval, nor be responsible
for any costs or expenses in connection therewith.
12. Notices. All notices required or desired to be given hereunder by
either party shall be in writing and be given by personal delivery or by
registered mail, return receipt requested, as follows:
If to Sublandlord: Alternative Resources Corporation
600 Hart Road
Barrington, Illinois 60010
Attention: Steve Purcell
If to Subtenant: Success National Bank
Suite 300
100 Tri-State International Center
Lincolnshire, Illinois 60069
Attention: Bill G. Meinen
Or at such other address as either party may provide to the other in writing
for the stated purpose of receiving notices. Notice given as aforesaid shall
be a sufficient service thereof and shall be deemed given upon receipt or
refusal of delivery.
13. Intentionally Deleted.
14. Quite Enjoyment. Sublandlord covenants that Subtenant shall, on
paying the Rent reserved and performing all the other obligations on the part
of Subtenant to be performed hereunder, peaceably and quietly have, hold and
enjoy the Premises during the Term, subject to the terms hereof.
15. No Broker. Each party represents and warrants to the other that it
has not had dealings with any real estate broker, finder or other person with
respect to this Sublease other than Steinco Inc. and Podolsky Northstar, Inc.
Each party agrees to indemnify, defend and hold the other harmless from and
against all claims for broker's commissions or finder's fees in breach of the
foregoing representation and warranty.
16. Relationship between Parties. The relationship between Sublandlord
and Subtenant is solely that of landlord and tenant, and is not and never
shall be deemed a partnership, agency or joint venture relationship.
17. Consent to Sublease by Prime Landlord. This Sublease shall not
become operative until and unless the Prime Landlord shall execute and deliver
written consent to this Sublease (the "Consent"). Sublandlord and Subtenant
agree promptly to countersign the Consent. Sublandlord shall not be
responsible for the failure of Prime Landlord to give the Consent. If the
Consent is not given by Prime Landlord, this Sublease shall be void and of no
force or effect.
18. Furniture. Sublandlord hereby leases to Subtenant, and Subtenant
hereby leases from Sublandlord, all of Sublandlord's furniture and partitions
(the "Furniture") now located in the Premises for the Term of this Sublease.
A schedule identifying the Furniture is attached hereto as Exhibit D. The
rent for the Furniture shall be equal to One Dollar ($1.00) per square foot of
the Premises per annum and is included in the Base Rent. At the expiration of
the Term or the earlier termination of this Sublease as a result of the
termination of the Master Lease (provided that Subtenant is not then in
default hereunder), Sublandlord shall deliver a quitclaim bill of sale
transferring title to the Furniture to Subtenant.
19. Limitations on Sublandlord's Obligations.
A. No Representations. Subtenant acknowledges that Sublandlord has made
no representations or warranties with respect to the Premises except as
provided in this Sublease.
B. Assignment of Sublandlord's Interest. If Sublandlord assigns its
interest in and under the Prime Lease:
(i) Sublandlord shall also assign to the assignee its interest in
and under this Sublease and shall cause the assignee to assume all of
Sublandlord's obligations hereunder,
(ii) Subtenant shall recognize Sublandlord's assignee as Sublandlord
hereunder, and
(iii) Sublandlord, from and after such assignment to and assumption
by such assignee, shall have no obligation to Subtenant arising thereafter.
C. Prime Landlord Covenants. Sublandlord shall not be required to
perform any of the covenants and obligations of the Prime Landlord under the
Prime Lease and, insofar as any of the obligations of the Sublandlord
hereunder are required to be performed under the Prime Lease by the Prime
Landlord, Subtenant shall rely on and look solely to the Prime Landlord for
the performance thereof. If the Prime Landlord shall default in the
performance of any of its obligations under the Prime Lease, such default
shall not constitute an actual or constructive eviction nor result in any
offset, abatement or deduction against the Base Rent, Additional Rent or any
other amounts due under this Sublease; provided, however, that (i) Subtenant
shall have the right, as Subtenant's sole expense and upon prior notice to
Sublandlord, in the name of Sublandlord or Subtenant, to make any demand or
institute any action or proceeding, not contrary to any provision of law or
the Prime Lease, against the Prime Landlord for the enforcement of the Prime
Landlord's obligations under the Prime Lease, and (ii) the benefits of any
such demand, action or proceeding shall be remitted to or otherwise passed
through to Subtenant.
D. Limitation on Damages. In no event shall Sublandlord be liable to
Subtenant for any indirect or consequential damages.
E. Limitation on Sublandlord's Liability. Notwithstanding any other
provision contained in this Sublease to the contrary, Subtenant shall look
only to the assets of Sublandlord for the satisfaction of any liability of
Sublandlord under this Sublease, it being expressly understood and agreed that
no partner, officer, director, shareholder, or employee of Sublandlord shall
be held personally liable therefor and that Subtenant shall not pursue
satisfaction of any judgement against Sublandlord against the assets of any
such partner, officer, director, shareholder, or employee of Sublandlord.
20. MISCELLANEOUS
A. Partial Invalidity. If any provision of this Sublease shall to any
extent be invalid, the remainder of this Sublease shall not be affected
thereby.
B. No Other Agreements. There are no oral or written agreements between
Sublandlord and Subtenant affecting this Sublease.
C. Amendment of this Sublease. This Sublease may be amended, and the
provisions hereof may be waived or modified, only by instruments in writing
executed by Sublandlord and Subtenant.
D. Captions. The titles of the several sections contained herein are for
convenience only and shall not be considered in construing this Sublease.
E. Insurance. The insurance policies required to be maintained by
Subtenant pursuant to Section 18.01 of the Prime Lease shall include both
Sublandlord and Prime Landlord as additional insureds thereon.
F. Contingency. Sublandlord's obligations hereunder are subject to and
contingent upon Sublandlord's receipt of a fully executed lease for space at
600 Hart Road, Barrington, Illinois on or before May 7, 1999. If Sublandlord
does not receive the executed lease by May 7, 1999, then Sublandlord may elect
to terminate this Sublease by delivering written notice thereof to Subtenant
on or before May 11, 1999. If Sublandlord elects to terminate this Sublease
as provided in this Subsection 20F, then this Sublease shall thereupon
terminate and be of no further force or effect.
* * * * * * * * *
IN WITNESS WHEREOF, the parties have executed this Sublease as of the
date and year first above written.
SUBLANDLORD: ALTERNATIVE RESOURCES CORPORATION
_____________________________________
By: Steve Purcell
Its Vice President
SUBTENANT: SUCCESS NATIONAL BANK
___________________________
By: W. G. Meinen, Jr.
Its President & CEO
Exhibit A
COPY OF THE PRIME LEASE
OFFICE LEASE
1. BASIC LEASE PROVISIONS AND IDENTIFICATION OF EXHIBITS
1.01 BASIC LEASE PROVISIONS
A. BUILDING AND PREMISE ADDRESS:
Suite 300
Building 100
Tri-State International Office Center
Lincolnshire, Illinois 60069
B. LANDLORD AND ADDRESS:
New York Life Insurance Company
c/o Greystone Realty Corporation
1111 SW 22nd Street, Suite 240
Oak Brook, Illinois 60521
C. TENANT AND CURRENT RESIDENT:
Alternative Resources Corporation
75 Tri-State International Center, Suite 100
Lincolnshire, Illinois 60069
D. DATE OF LEASE: July 15, 1996
E. LEASE TERM: The period from and including the Commencement Date
through and including the expiration date.
F. COMMENCEMENT DATE OF TERM: September 1,1996
G. EXPIRATION DATE OF TERM: August 31, 2006
H. INITIAL MONTHLY BASE RENT: $34,152.73
I. RENTABLE AREA OF THE PREMISES: 26,578 rentable square feet, said
determination being determinative among the parties hereto.
J. SECURITY DEPOSIT: $12,235.31
K. COMPLEX: The land and building comprising Tri-State International
Office Center in Lincolnshire, Illinois, including related parking areas,
storm water retention areas, access roads and offsite and onsite incidental
improvements.
1.02 ENUMERATION OF EXHIBITS
The exhibits set forth below and attached to this Lease are incorporated in
this Lease by this reference:
EXHIBIT A -- Plan of Premises
EXHIBIT B -- Rules and Regulations
EXHIBIT C -- First Expansion Space
EXHIBIT D -- Second Expansion Space
EXHIBIT E -- Work Letter
EXHIBIT F -- Plans
EXHIBIT G -- Addendum to Lease
EXHIBIT H -- Non Disturbance Agreement
2. PREMISES AND TERMS
2.01 LEASE OF PREMISES Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises shown on Exhibit A (the "Premises") which
are contained in the commercial building (the "Building") commonly known as
Building 100, Tri-State International Office Center, Lincolnshire, Illinois
60069, for the term and upon the conditions provided in this lease (the
"Lease"). Provided that as of the Commencement Date hereunder an Event of
Default does not exist hereunder or under Tenant's existing lease for Suite
100 of Building 75 of the Complex, the Expiration Date under said existing
lease shall be later of (i) the Commencement Date hereunder, and (ii) Tenant's
vacation of said Suite 100, provided, however, for purposes of this Section
2.01, the Expiration Date under Tenant's said existing lease shall not occur
prior to September 1, 1996.
2.02 TERM
The term of this Lease (the "Term") shall commence on the date (the
"Commencement Date") which is the earlier to occur of:
(i) the date specified in Subsection 1.01.F or
(ii) the date Tenant first occupies all or part of the Premises.
Notwithstanding anything to the contrary contained herein, provided Tenant has
caused no delays, in no event shall the Commencement Date occur or any space
be included in the Premises (or any Initial Monthly Base Rent provided for in
Sections 3 and 4 herein commence) unless and until (a) all of Tenant's
Improvements in such space have been substantially completed in accordance
with the Work Letter and plans and specifications attached hereto as Exhibits
E and F and (b) Landlord has procured, at Landlord's sole cost and expense,
all governmental permits required to permit Tenant to legally occupy and use
the Building and Premises.
The Term shall expire on the date (the "Expiration Date") specified in
Subsection 1.01.G, unless sooner extended or terminated as otherwise provided
elsewhere in this Lease.
3. RENT
Tenant shall pay to Landlord at the office of the managing agent (the
"Manager") of Landlord, or at such other place designated by Landlord in a
written notice to Tenant, without any prior demand therefore and without any
deduction whatsoever, rent at the monthly rate specified in Subsection 1.01.H
("Monthly Base Rent"), subject to increases pursuant to Section 4.02, if any.
Unless otherwise provided to the contrary in this Lease, Adjusted Monthly Base
Rent, as defined in Subsection 4.01.C hereinbelow, shall be paid monthly in
advance on the first day of each month of the Term. Adjusted Monthly Base
Rate shall be prorated for partial months within the term. All charges, costs
and sums required to be paid by Tenant to Landlord under this Lease in
addition to Adjusted Monthly Base Rent shall be deemed additional rent
("Additional Rent"), and Adjusted Monthly Base Rent and Additional Rent shall
hereinafter be collectively called the "Rent". Tenant's covenant to pay Rent
shall be independent of every other covenant in this Lease. Rent shall be
paid without any set-off or deduction whatsoever, except as expressly set
forth in this lease.
4. INCREASE IN MONTHLY BASE RENT
4.01 DEFINITIONS
The following words and phrases shall have the following meanings:
A. "Adjustment Date" shall mean the Commencement Date, and each January 1
thereafter, falling within the Term.
B. "Initial Year" shall mean the period which begins with the
Commencement Date and ends on December 31 of the calendar year in which the
Commencement Date falls. "Adjustment Year" shall mean the Initial Year and
each twelve-month period (or portion thereof if the Lease shall terminate
prior to the end of twelve months from an Adjustment Date) beginning with an
Adjustment Date.
C. "Adjusted Monthly Base Rent" shall mean rental (exclusive of
Additional Rent) as from time to time computed under Section 4.02 hereinbelow,
and shall mean the then-applicable "Monthly Base Rent" for all periods of time
during which no adjustment has been applied.
D. "Rentable Area of the Premises" shall mean the number of rentable
square feet set forth in Subsection 1.01.I.
E. "Operating Expenses" shall mean all costs, expenses and disbursements
of every kind and nature which Landlord shall pay or become obligated to pay
in connection with the management (including management fees), operation,
maintenance, and repair of the Complex, Building and the land upon which the
Building and Complex are situation (the "Land") and of the management,
operation, maintenance, replacement and repair of the personal property,
fixtures, machinery, equipment, systems and apparatus located in or used in
connection with the Building, Complex and Land, and all services provided by
or through Landlord on a non-exclusive basis to tenants of the Building and
Complex, including, without limitation; insurance premiums (including, without
limitation, premiums for insurance covering loss of rents, liability,
vehicles, fire and extended coverage and worker's compensation); security, to
the extent provided; reasonable attorneys fees and disbursements, reasonable
auditing and other professional fees and expenses; utility expenses; the cost
of energy or utility maintenance contracts; and current amortization,
including interest, of: (1) Operating Expense incurred in one Adjustment Year
but which Landlord elects to charge to tenants over a period of more than one
Adjustment Year because of the amount or nature of such expenses ("Amortized
Operating Expenses"); (2) the cost of capital equipment acquired for the
purpose of reducing energy or utility costs or other Operating Expenses (which
may, at Landlord's option, be amortized over a period of more than one
Adjustment Year) ("Conservation Expenditures"); and (3) capital improvement(s)
made for the purpose of complying with requirements of any federal, state or
local law or governmental regulation hereafter enacted ("Required Capital
Expenditures"). Notwithstanding anything contained herein to the contrary,
Operating Expenses which Landlord shall pay or become obligated to pay with
respect to the Land and that portion of the Complex not comprising the
Building may be allocated, at Landlord's election, to all or some of the
completed feet of the buildings comprising the Complex. Operating Expenses
shall not include the following: Taxes (as defined below), costs borne or
paid for by other tenants of the Building or Complex; costs of improvements
made within the Premises and the premises of other tenants of the Building or
Complex; charges for depreciation of the Building or Complex; interest and
principal payments on mortgages (except for the financing of Amortized
Operating Expense, Conservation Expenditures, and Required Capital
Expenditures as provided above); real estate brokerage and leasing
commissions; expenses incurred in enforcing obligations of other tenants of
the Building or Complex; and capital improvements to the Building or Complex
(except as provided above).
F. "Per Square Foot Operating Expenses" shall mean the amount of
Operating Expenses for any Adjustment Year divided by the number of square
feet comprising the rentable area of the Building, or the Complex, as
applicable.
G. "Per Square Foot Taxes" shall mean the amount of Taxes for any
Adjustment Year divided by the number of square feet comprising the rentable
area of the Building or the Complex, as applicable.
H. "Taxes" shall mean all federal, state and local governmental taxes,
assessments and charges (including transit or transit district taxes or
assessments) of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay because of
or in connection with the ownership, leasing, management, control or operation
of the Building, the Land and the Complex, or of the personal property,
fixtures, machinery, equipment, systems and apparatus located therein or used
in connection therewith (including any rental or similar taxes levied in lieu
of or in addition to general real and/or personal property taxes). For
purposes hereof, Taxes for any year shall be deemed to refer to Taxes levied,
assessed or otherwise imposed for such year, without regard to when such taxes
are payable. There shall be included in Taxes for any year the amount of all
fees, costs and expenses (including reasonable attorneys' fees and costs) paid
by Landlord during such year in seeking or obtaining any refund or reduction
of Taxes. Taxes in any year shall be reduced by the net amount of any tax
refund received by Landlord during such year. If a special assessment payable
in installments is levied against the Building, Complex or Land, Taxes for any
year shall include only the installment of such assessment and any interest
payable or paid during such year. Taxes shall not include any federal, state
or local sales, use, franchise, capital stock, inheritance, general income,
gift or estate taxes, except that if a change occurs in the method of taxation
resulting in whole or in part the substitution of any such taxes, or any other
assessment, for any Taxes as above defined, such substituted taxes or
assessments shall be included in the Taxes.
3.02 ADJUSTMENTS TO MONTHLY BASE RENT
A. Tenant shall pay Monthly Base Rent during the Term, as follows:
Period Monthly Base Rent
September 1, 1996-August 31, 1997 $ 34,152.73
September 1, 1997-August 31, 1998 $ 35,177.31
September 1, 1998-August 31, 1999 $ 36,232.63
September 1, 1999-August 31, 2000 $ 37,319.61
September 1, 2000-August 31, 2001 $ 38,439.20
September 1, 2001-August 31, 2002 $ 39,592.37
September 1, 2002-August 31, 2003 $ 40,780.15
September 1, 2003-August 31, 2004 $ 42,003.55
September 1, 2004-August 31, 2005 $ 43,263.66
September 1, 2005-August 31, 2006 $ 44,561.57
B. Adjusted Monthly Base Rent shall be determined by adding to the
applicable Monthly Base Rent an amount equal to 1/12th of the product of the
Rentable Area of the Premises multiplied by the amount of the Per Square Foot
Operating Expenses and the Per Square Foot Taxes for the Adjustment Year.
C. Landlord shall make reasonable estimates, forecasts or projections
(collectively, the "Projections") of each of Operating Expenses and Taxes for
each Adjustment Year. Landlord shall deliver to Tenant a written statement
(i) setting forth the Projections of each of Operating Expenses and Taxes for
the Adjustment Year in which such Adjustment Date falls, and (ii) providing a
calculation of the increase in installments of Adjusted Monthly Base Rent
based on such Projections to become effective as of said Adjustment Date
(including the Commencement Date); provided, however, that the failure of
Landlord to provide any such statement shall not relieve Tenant from its
obligation to continue to pay Adjusted Monthly Base Rent at the rate then in
effect under this Lease. If and when Tenant receives such statement from
Landlord, Tenant shall pay any increase in Adjusted Monthly Base Rent
reflected thereby effective retroactively to the most recent preceding
Adjustment Date (including the Commencement Date). If any unexpected increase
or decrease in Operating Expenses or Taxes, or both, occurs after preparation
of the Projections which results in a projected increase or decrease in such
Operating Expenses or Taxes, or both, Landlord may revise the Projections and
the estimated Operating Expenses or Taxes, or both, may be recalculated based
on the revised Projections.
D. Following the end of each Adjustment Year, at such time as Landlord
shall be able to determine the actual amounts of each of Operating Expenses
and Taxes for the Adjustment Year last ended, Landlord will notify Tenant in
writing of such actual amounts. If the total Adjusted Monthly Base Rent paid
by Tenant during such Adjustment Year exceeds the amount thereof payable for
such year based upon each of actual Operating Expenses and Taxes for such
Adjustment Year, then Landlord shall credit such excess to installments of
Adjusted Monthly Base Rent payable after the date of Landlord's notice until
such excess has been exhausted, or if this Lease shall expire prior to full
application of such excess, Landlord shall pay to Tenant within thirty (30)
days the balance thereof not theretofore applied against Rent. If such actual
amounts exceed the Projections for such Adjustment Year, then Tenant shall,
within thirty (30) days after the date of such written notice from Landlord,
pay to Landlord an amount equal to the excess of the Adjusted Monthly Base
Rent payable for the Adjustment Year last ended based upon each of actual
Operating Expenses and Taxes for such year over the total Adjusted Monthly
Base Rent paid by Tenant during such Adjustment Year. The obligation to make
such payments shall survive the expiration of the Term or earlier termination
of this Lease. No interest or penalties shall accrue on any amounts which
Landlord is obligated to credit or pay to Tenant by reason of this Section
4.02. Landlord covenants and agrees that Tenant, within sixty (60) days of
receipt of Landlord's notice of actual Operating Expenses and Taxes, may
request, at its own cost and expense, to examine Landlord's records supporting
the Operating Expenses or Taxes, or both, for the Adjustment Year.
E. Notwithstanding anything to the contrary contained in this Lease,
Adjusted Monthly Base Rent shall not be adjusted or decreased below the
respective amounts set forth in Subsection 1.01.H and Subsection 4.02.A.
F. If less than one hundred percent (100%) of the rentable area of the
Building or Complex shall have been occupied by tenants at any time during any
Adjustment Year, then, at Landlord's election, Operating Expenses or Taxes, or
both, for such Adjustment Year shall be the amount which Landlord in good
faith determines is the amount variable Operating Expenses would have been for
such Adjustment Year had occupancy been one hundred percent (100%) throughout
such year.
G. Tenant may review Landlord's books and records to verify Operating
Expenses and Taxes once each calendar year, provided said review shall be
conducted at Tenant's expense during normal business hours by Tenant's
employees or by a so-called "Big Six" accounting firm. Tenant shall provide
Landlord with at least seven (7) days prior written notice of its desire to
conduct said review.
5. SECURITY DEPOSIT
As security for the performance of its obligations under this Lease, Tenant
upon its execution of this Lease has paid to Landlord a security deposit (the
"Security Deposit") in the amount specified in Subsection 1.01.J. The
Security Deposit may be applied by Landlord to cure any default of Tenant and
upon notice by Landlord of such application, Tenant shall replenish the
Security Deposit in full by promptly paying to Landlord the amount so applied.
Within thirty (30) days after the Expiration Date, Landlord shall return to
Tenant the balance, if any, of the Security Deposit. The Security Deposit
shall not be deemed an advance payment of Rent or measure of damages for any
default by Tenant under this Lease, nor shall it be a bar or defense to any
action which Landlord may at any time commence against Tenant. Landlord shall
not be required to segregate the Security Deposit from its general funds.
Tenant shall not be entitled to any interest payment on the Security Deposit.
6. SERVICES
6.01 LANDLORDS GENERAL SERVICES
Subject to applicable governmental restrictions and appropriate repairs and
maintenance, Landlord shall provide the following services: (a) heat and
air-conditioning ("Conditioned Air") in the Premises and the areas of the
Building the use of which is shared by all tenants of the Building ("Common
Areas"), Monday through Friday from 8:00 a.m. to 6:00 p.m. and Saturday from
8:00 a.m. to 12:00 p.m., excluding national holidays, to the extend necessary
for the comfortable occupancy of the Premises under normal business operations
and in the absence of the use of machines or equipment which affect the
temperature otherwise maintained in the Premises. Notwithstanding anything to
the contrary contained herein, the HVAC System shall be capable of maintaining
75 degrees Fahrenheit when outdoor conditions are 91 degrees Fahrenheit dry
bulb and 76 degrees Fahrenheit wet bulb. The HVAC System shall be capable of
maintaining 70 degrees Fahrenheit at outdoor temperature 0 degrees Fahrenheit
dry bulb. (b) city water from the regular Building fixtures for drinking,
lavatory and toilet purposes only; (c) customary cleaning and janitorial
services in the Common Areas and the Premises, substantially similar to those
provided in other commercial and office building in the Lincolnshire area
Monday through Friday, excluding national holidays; and (d) passenger elevator
service in common with other tenants of the Building. Use of the elevator for
moving personal property or fixtures in or out of the Building or Premises are
subject to prior scheduling by Landlord. Landlord shall not be liable to
Tenant in damages or otherwise should the furnishing of any service be
inadequate, interrupted or terminated because of repairs or improvements or
for any cause beyond Landlord's reasonable control. To the extent that
Tenant's cooling demand exceeds the amount now available to the Premises,
Tenant shall install a supplementary cooling system as soon as reasonably
possible after receiving Landlord's demand for the installation of
supplementary cooling. If Tenant has not done so within sixty (60) days of
such demand, then Landlord may install supplementary air conditioning in the
Premises or in the Building, and the expense of installation and cost of such
supplementary air conditioning shall be paid by Tenant as Additional Rent.
The supplementary air conditioning system shall be paid by the Tenant to
Landlord as Additional Rent at rates and at times fixed by Landlord, provided
such rates are comparable to what Landlord charges other tenants of the
Building for similar services.
Notwithstanding anything contained herein to the contrary, in the event
Landlord shall materially fail to supply services hereunder and said failure
shall continue for five (5) consecutive days following written notice by
Tenant, Adjusted Monthly Base Rent shall then abate until said services are
restored.
6.02 ADDITIONAL AND AFTER-HOURS SERVICES
In addition to the foregoing services, if Tenant so requests in writing with
at least one business day's advance notice, Landlord will make available to
Tenant head and air conditioning, as permitted by law, ("Additional HVAC") and
normal services and utilities for the common areas of the Building
("Additional Common Area Services") at additional hours. The costs of
Additional HVAC and Additional Common Area Services will not be included in
Operating Expenses, but Tenant shall pay to Landlord as Additional Rent due
under this Lease, Landlord's cost of supplying Additional HVAC and Additional
Common Area Services (including a reasonable charge for Landlord's overhead)
within thirty (30) days after receipt of Landlord's invoices therefor. If
more than one tenant of the Building has requested Additional HVAC or
Additional Common Area Services for any such hours, then Landlord's cost for
such hours shall be divided among all such tenants in proportion to the ratio
which the rentable area of the respective tenants' premises bears to the
aggregate number of rentable square feet comprising said tenants' premises.
If Tenant shall fail to make any such payment, Landlord may, by providing
written notice to Tenant and in addition to Landlord's other remedies under
this Lease, discontinue any or all of the additional services. No
discontinuance of any service pursuant to this Section 6.02 shall result in
any liability of Landlord to Tenant or be deemed to be an eviction or a
disturbance of Tenant's use of the Premises. For purposes of this Lease, the
term "business days" means Mondays through Fridays, excluding national
holidays observed by American National Bank and Trust Company of Chicago.
6.03 TENANT'S UTILITIES
Tenant shall make arrangements directly with the telephone company for
telephone service to the Premises. Tenant shall promptly pay and be solely
responsible for the entire cost of all such service. Tenant shall also pay
upon Landlord's written demand, the reasonable expenses actually incurred by
Landlord for removing upon expiration or termination of this Lease any special
equipment installed in the Premises.
Tenant shall make all necessary arrangements with the utility company serving
the Building for electricity to be separately metered for use in the Premises,
and Tenant shall pay all charges with respect thereto before the same shall be
due. Tenant shall make no alterations or additions to the wiring
installation, electric equipment or appliance without the prior written
consent of Landlord in each instance. Tenant convenants and agrees to
purchase from Landlord or its agent all lamps, bulbs, ballasts and starters
used in the Premises after the initial installation thereof. Landlord
represents that the electrical feeder or riser capacity serving the Premises
on the Commencement Date is adequate to provide Building Standard Electrical
Loads. Any additional feeders or risers to supply Tenant's additional
electrical requirements, and all other equipment proper and necessary in
connection with such feeders or risers, shall be installed by Landlord upon
Tenant's request, at the sole cost and expense of Tenant, based upon
Landlord's actual cost thereof, provided that, in Landlord's reasonable
judgment, such additional feeders or risers are necessary and are permissible
under applicable laws and insurance regulations and the installation of such
feeders or risers will not cause permanent damage or injury to the Building or
the Premises or cause or create a dangerous or hazardous condition on entail
excessive or unreasonable alterations or interfere with or disturb other
tenants or occupants of the Building. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of the
feeders to the Building or the risers or wiring installation.
7. POSSESSION, USE AND ENJOYMENT OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
Tenant shall be entitled to possession of the Premises upon the Commencement
Date. In the event of the failure of Landlord to deliver possession of the
Premises upon the Commencement Date, neither Landlord nor its agents shall be
liable for any damages caused thereby, nor shall this Lease thereby become
void or voidable, nor shall the Term be in any way extended but in such event
the Term shall begin when landlord does deliver possession of the Premises,
and the Tenant shall not be liable for any Rent until the time that Landlord
delivers such possession, except as otherwise provided in the Work Letter.
Tenant shall occupy and use the Premises only for general office purposes.
Tenant shall not occupy or use the Premises (or permit the use or occupancy of
the Premises) for any purpose or in any manner which: (a) is unlawful or in
violation of any applicable legal, governmental or quasi-governmental
requirement, ordinance or rule (including the Board of Fire Underwriters); (b)
may be dangerous to persons or property; (c) may invalidate or increase the
amount of premiums for any policy of Insurance affecting the Building, except
that if any additional amounts of insurance premiums are so incurred, and
Tenant shall pay to Landlord the additional amounts upon written demand, then
Tenant shall not be considered in default hereunder; or (d) creates a
nuisance, disturb any other tenant of the Building or the occupants of
neighboring property or injure the reputation of the Building.
7.02 QUIET ENJOYMENT
So long as Tenant shall not be in default (after the expiration of applicable
cure periods) under this Lease, Tenant shall be entitled to peaceful and quiet
enjoyment of the Premises, subject to the terms of this Lease.
8. CONDITION OF PREMISES
Tenant shall be conclusively deemed to have accepted the Premises in the
condition existing on the date Tenant first takes possession and to have
waived all claims relating to the condition of the Premises. No agreement of
Landlord to alter, remodel, decorate, clean or improve the Premises, the
Building or the Complex, and no representation regarding the condition of the
Premises, the building or the Complex has been made by or on behalf of
Landlord to Tenant, except as stated in this Lease and the Work Letter.
Landlord shall repair defects in materials and workmanship regarding the
Tenant's Improvements, (as defined in the Work Letter) of which it receives
notice during the initial twelve (12) months of the Term. Tenant shall give
written notice to Landlord whenever a defect becomes reasonably apparent and
Landlord shall repair the defect as soon as practical. Landlord hereby
assigns to Tenant all warranties with respect to the Premises and the Tenant's
Improvements which reduce Tenant's maintenance obligations hereunder.
Landlord represents that as of the date hereof, it has not received any
governmental notice that the Premises or the Building fail to conform with the
requirements of covenants, conditions, restrictions, and encumbrances, all
underwriters' requirements and all rules, regulations, statutes, ordinances
and building codes applicable thereto (collectively, "Laws"), including,
without limitation, the Americans With Disabilities Act of 1990, as well as
laws governing hazardous materials.
Tenant shall not be required to construct or pay the cost of complying
with any CC&R's, underwriters' requirements or Laws requiring construction of
improvements in the Premises which properly are capitalized under generally
accepted accounting principles unless compliance is necessitated solely
because of Tenant's particular use of the Premises. In addition, at
Landlord's sole costs and expense (except as elsewhere provided herein),
Landlord shall construct the Tenant's Improvements referred to in Exhibits E
and F attached hereto. The Tenant's Improvements shall be constructed
substantially in accordance with the plans and specifications described
therein and in a good and workmanlike manner. Prior to the Commencement Date,
Tenant shall have the right to submit a written "punchlist" to Landlord,
setting forth any defective item of construction, and Landlord promptly shall
cause the items to be corrected.
9. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublease, assign, mortgage, pledge, hypothecate or
otherwise transfer or permit the transfer of this Lease or the interest of
Tenant in this Lease, in whole or in part, by operation of law or otherwise,
except upon the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed. If Tenant or the beneficiary of Tenant is a
partnership, a withdrawal or change, voluntary, involuntary or by operation of
law, of any partner or partners owning fifty-one percent (51%), whether by a
single transaction or event or by cumulative transactions or events, or more
of the partnership interest, or the dissolution of the partnership shall be
deemed an assignment of this Lease. If Tenant is an Illinois land trust or
other trust, a change in the beneficial ownership shall be deemed an
assignment of this Lease. If Tenant, or the beneficiary of Tenant is a
corporation, any dissolution, merger, consolidation, or reorganization of the
Tenant or the sale or transfer of a controlling percentage of the capital
stock of the Tenant, whether by a single transaction or event or by cumulative
transactions or events, shall be deemed an assignment of this Lease. If the
Tenant consists of more than one person, a purported assignment, voluntary,
involuntary, or by operation of law, from a majority of such persons to any or
all of the others shall be deemed an assignment of this Lease.
(b) Landlord may void any attempted transfer or assignment of this Lease
or any subletting not in strict compliance with the provisions of this
Article, and any such act by Tenant shall constitute an Event of Default.
Landlord's waiver of any provision of this Article shall not constitute a
waiver of any provisions of this Article or consent as to any subsequent or
attempted transfer or assignment. In no event shall Tenant's assignment of
this Lease release Tenant from primary liability for the performance of all of
Tenant's covenants, duties and obligations, and Landlord may enforce the
provisions of this Lease against Tenant without making demand upon or
proceeding in any way against any other person. All assignments hereunder
shall be by written instrument in form and content reasonably satisfactory to
Landlord, and shall be executed by the assignor and assignee and the assignee
shall therein agree in writing for the benefit of Landlord to assume, to be
bound by, and to perform the terms, covenants and conditions of this Lease to
be performed by Tenant. One executed copy of such written instrument shall be
delivered to Landlord prior to the effective date of the assignment. No
waiver by Landlord of any provisions of this article shall be effective unless
in writing and signed by Landlord.
(c) No less than thirty (30) days prior to the effective date of a
proposed assignment or sublease, Tenant shall offer to reconvey the Premises
to landlord, as of the effective date, which offer shall contain an
undertaking by Tenant to accept, as full and adequate consideration for the
reconveyance, Landlord's release of Tenant from all future Rent and other
obligations under this Lease with respect to the Premises. Tenant's Offer
shall contain, in addition, the name of the proposed assignee or subtenant and
the terms of the proposed assignment or subleasing, including the affected
portion of the Premises, in the case of a sublease, and the consideration
(rent or otherwise) to be paid to Tenant by such assignee or subtenant.
Landlord, in its absolute discretion, shall accept or reject the offered
reconveyance within thirty (30) days of the offer, and if Landlord accepts,
the reconveyance shall be evidenced by an agreement acceptable to Landlord in
form and substance. If Landlord fails to accept or reject the offer within
the thirty (30) day period, Landlord shall be deemed to have rejected the
offer. If Landlord rejects or is deemed to have rejected Tenant's offer or
reconveyance and if Landlord then gives its consent to any assignment of this
Lease or to any sublease, Tenant shall, in consideration therefor, pay to
Landlord, as Additional Rent:
(i) In the case of an assignment, an amount equal to 50% of all sums and
other consideration paid to Tenant by the assignee for or by reason of such
assignment, less the reasonable brokerage commissions and legal fees, if any,
actually paid by Tenant in connection with such assignment; and
(ii) In the case of a sublease, 50% of any rents, additional charges or
other consideration payable under the sublease to Tenant by the subtenant
which are in excess of the Rent during the term of the sublease in respect of
the subleased space, less the reasonable brokerage commissions and legal fees,
if any, actually, paid by Tenant in connection with such subletting.
The sums payable hereunder shall be paid to Landlord as and when payable
by the assignee or subtenant to Tenant.
(d) In no event shall Landlord be obligated to consent to any proposed
assignment or sublease unless:
(i) The proposed assignee or subtenant, in Landlord's judgment, is of
character and financial standing and engaged in a business as are in keeping
with Landlord's standards for the Building and the Complex; and
(ii) The proposed use of the affected portion of the Premises is not
prohibited under the terms of this Lease.
(iii) The proposed assignee or subtenant is not occupying space in the
Complex or negotiating the terms of a new lease with landlord with respect to
the same.
(e) Tenant shall reimburse Landlord on demand for any reasonable costs
that Landlord may incur in connection with said assignment or sublease,
including the reasonable costs of investigating the acceptability of the
proposed assignee or subtenant and reasonable legal costs incurred in
connection with the granting of any requested consent.
(f) Notwithstanding anything to the contrary contained herein, subject to
the provisions of Paragraph 9(b) hereinabove, Tenant shall have the right
without the consent of Landlord to assign or sublet all of or a portion of the
Premises to any corporation or other entity which controls, is controlled by,
or is in common control with Tenant or Tenant's successors, or any corporation
into which or with which Tenant or its successors or assigns is merged or
consolidated, or any corporation which acquires this Lease and substantially
all of the assets of Tenant. For the purpose of this Lease, a sale of
Tenant's stock through any public exchange shall not be deemed an assignment,
transfer or sublet.
10. MAINTENANCE
Tenant, at its expense, shall keep and maintain the Premises in good order,
condition and repair (including the keeping of the Premises in clean and
orderly condition) and in accordance with all applicable legal, governmental
and quasi-governmental and insurance carrier requirements, ordinances and
rules. If Tenant fails to perform any of its obligations set forth in this
Article 10, Landlord, in addition to its other remedies with respect to
Tenant's breach of a covenant hereunder, may perform the same, and Tenant
shall pay to Landlord the cost therefor upon written demand. Landlord, at its
expense, shall keep and maintain the Building in good order, condition and
repair (including the keeping of the Building and the Land in clean and
orderly condition) and in accordance with all applicable legal, governmental
and quasi-governmental and insurance carrier requirements, ordinances and
rules.
11. ALTERATIONS AND IMPROVEMENTS
11.01 TENANT'S ALTERATIONS
Tenant shall not, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed, make or cause to be made any
alterations, improvements, additions, installations or decorations in or to
the Premises. Landlord hereby consents to the alterations, improvements,
additions, installations, and decorations to be made pursuant to the Work
Letter attached to this Lease. Landlord may require as a condition of
granting such consent that, before commencement of any such work or delivery
of any materials into the Premises or the Building, Tenant shall furnish to
Landlord for approval architectural plans and specifications, names and
addresses of all contractors, contracts, necessary permits and licenses,
certificates of insurance and instruments of indemnification against any and
all claims, costs, expenses, damages and liabilities which may arise in
connection with such work, all in such form and amount as may be satisfactory
to Landlord. In addition, prior to commencement of any such work or delivery
of any materials into the Premises, Tenant shall provide Landlord with
appropriate evidence of Tenant's ability to pay for such work and materials in
full. Whether or not Tenant furnishes the foregoing, Tenant agrees to hold
Landlord, the Manager and their respective agents and employees forever
harmless against all claims and liabilities of every kind, nature and
description which may arise out of or in any way be connected with such work.
All such work shall be done only by contractors or mechanics approved by
Landlord (which approval may be withheld in Landlord's reasonable discretion)
and at such time and in such reasonable manner as Landlord may from time to
time designate. Tenant shall pay the cost of all such work and the cost of
decorating the Premises and the Building occasioned thereby. Upon completion
of such work, Tenant shall furnish Landlord with contractor's affidavits and
full and final waivers of lien and receipted bills covering all labor and
materials expended and used in connection therewith. All such work shall be
in accordance with all applicable legal, governmental and quasi-governmental
requirements, ordinances and rules (including the Board of Fire Underwriters),
and all requirements of applicable insurance companies. All such work shall
be done in a good and workmanlike manner, with the use of good grades of
materials and in conformity with so-called Building Standards. Landlord may,
at its option supervise, at Tenant's cost, (not to exceed ten percent (10%) of
the cost of the alterations) construction operations in connection with such
work; provided, however, that such supervision or right to supervise by
Landlord shall not constitute any warranty by Landlord to Tenant of the
adequacy of the design, workmanship or quality of such work or materials for
Tenant's intended use or impose any liability upon Landlord in connection with
the performance of such work. All alterations, improvements, additions and
installations to or on the Premises shall become part of the Premises at the
time of their installation and, at the election of Landlord, shall remain in
the Premises at the expiration or termination of this Lease, or termination of
Tenant's right of possession of the Premises, without compensation or credit
to Tenant. Tenant shall not pledge, mortgage, hypothecate or in any way
create a security interest in and to any of the alterations any improvements
provided for herein to any creditor or third party without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
11.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Complex, the Building, the
Land, the Premises, or any part thereof arising out of work performed, or
alleged to have been performed by, or at the direction of, or on behalf of
Tenant.
12. WAIVER OF CLAIMS AND INDEMNITY
12.01 WAIVER
Except as otherwise provided by statutory law, Tenant hereby releases and
waives all claims against Landlord, the Manager and their respective agents
and employees for injury or damage to person, property or business sustained
in or about the Land, the Building, the Complex or the Premises by Tenant, its
agents, or employees, other than by reason of the negligence or willful
misconduct of Landlord, the Manager and their respective agents and employees,
or the failure of Landlord to perform its obligations under this Lease.
12.02 INDEMNIFICATION
Tenant agrees to indemnify and hold harmless Landlord, the Manager and their
respective agents and employees, against any and all claims, demands, costs
and expenses of every kind and nature (including reasonable attorneys' fees
and costs), including those arising from any injury or damage to any person,
property or business: (a) sustained in or about the Premises, (b) resulting
from the negligence of Tenant, its employees, agents, contractors, servants,
licensees or subtenants, or (c) resulting from the failure of Tenant to
perform its obligations under this Lease. If any such proceeding is brought
against Landlord, the Manager or their respective agents or employees, Tenant
covenants to defend such proceeding at its sole cost by legal counsel
satisfactory to Landlord. Landlord shall indemnify and hold harmless Tenant,
its agents, employees, officers, directors, partners and shareholders from and
against any and all liabilities, judgements, demands, causes of action,
claims, losses, damages, costs and expenses, including reasonable attorneys'
fees and costs, arising out of the willful misconduct or gross negligence of
Landlord, its officers, contractors, licensees, agents, servants and employees
in or about the Building or arising from any breach or default by Landlord
under this Lease. This provision shall not be construed to make Landlord
responsible for loss, damage, liability or expense resulting from injuries to
third parties caused by the negligence of Tenant, or its officers,
contractors, licensees, agents, employees or invitees.
13. LANDLORD'S REMEDIES
13.01 DEFAULTS AND REMEDIES
All rights and remedies of Landlord herein enumerated shall be cumulative and
none shall exclude any other right or remedy allowed by law.
A. (1) If Tenant defaults in any payment of Rent for more than five (5)
days following written notice of a delinquency; or (2) if Tenant defaults in
the prompt and full performance of any other provisions of this Lease and
Tenant does not cure the default within thirty (30) days after written demand
by Landlord that the default be cured (unless the default involves a hazardous
condition, which shall be cured forthwith) plus additional time as necessary
to cure said default and Tenant is proceeding to cure said default with
diligence,; or (3) Tenant shall default in the observance or performance of
any term, covenant or condition on Tenant's part to be observed or performed
under any other lease with Landlord of space in the Building or the Complex
and such default shall continue beyond any grace period set forth in such
other lease for the remedying of such default; or (4) if the Premises or the
Building are damaged by reason of negligence or carelessness or improper
conduct of Tenant, its agents, or employees and such damage has not been
repaired within thirty (30) days of its occurrence; or (5) if the leasehold
interest of Tenant be levied upon under execution or be attached by process of
law and such action is not dismissed within sixty (60) days of such levy or
order of attachment, or (6) if Tenant makes an assignment for the benefit of
creditors or admits its inability to pay its debts generally, or (7) if a
receiver is appointed for any property of Tenant and such receiver has not
been discharged within sixty (60) days of such appointment, or (8) if the
Premises become vacant, deserted, or abandoned (notwithstanding anything
contained herein to the contrary, the Premises shall not be deemed abandoned
or vacated so long as Tenant continues to pay Rent); or (9) if Tenant shall
fail to contest the validity of any lien or claimed lien which may affect the
Building or the Land and give security to Landlord to assure payment thereof,
or, having commenced to contest the same and having given such security, shall
fail to prosecute such contest with diligence, or shall fail to have the same
released and satisfy any judgment rendered thereon, and such default continues
for ten (10) days after notice thereof in writing to Tenant; then, and in any
such event, ("Event of Default") Landlord may, with or without any further
demand whatsoever, either forthwith terminate this Lease and Tenant's right to
possession of the Premises or, without terminating this Lease, forthwith
terminate Tenant's right to possession of the Premises.
B. (1) If Landlord elects to terminate Tenant's right to possession
only, without terminating the Lease, Landlord may, at Landlord's option, enter
into the Premises, remove Tenant's sign and all other evidence of tenancy, and
take and hold possession thereof as provided in Article 14, without such entry
and possession terminating the Lease or releasing Tenant, in whole or in part,
from Tenant's obligation to pay the Rent hereunder for the full Term. In the
case of a default under Subsection 13.01.A.(6) or 13.01.A. (7), or in the
event of a bankruptcy proceeding as described in Subsection 13.01.C, below,
Tenant shall pay forthwith to Landlord, if Landlord so elects, a sum equal to
the entire amount of the Rent then known or subject to calculation for the
remainder of the Term plus any other sums then due hereunder, and all amounts
not then due and payable shall be discounted to the then-present value of such
amount using a discount factor of five percent (5.0%); and in any case, unless
such amount is paid to Landlord, Tenant shall remain liable for the "Monthly
Deficiency", as defined below. Upon and after entry into possession without
termination of the Lease, Landlord shall, if and to the extent required by
law, take reasonable measures to mitigate the damages recoverable against
Tenant by attempting to relet the Premises or any part thereof for the account
of Tenant to any person, firm or corporation other than Tenant for such rent,
for such term and upon such conditions (which term may extend beyond the date
set forth in Subsection 1.01.G of this Lease and which conditions include
concessions and free rent periods), as Landlord in Landlord's sold discretion
shall determine; provided, however, that Landlord shall not be required to
accept any tenant offered by Tenant or to observe any instructions given by
Tenant about such reletting nor shall Landlord be obligated to market or relet
the Premises on a priority basis over unleased or unoccupied space in the
Building or the Complex. In any such case, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to the
extend deemed by Landlord necessary or desirable, and Tenant shall, upon
demand, pay all costs thereof, plus all of Landlord's other expenses of the
reletting, including all repossession costs, brokerage commissions, not to
exceed the market commission rate paid to brokers for leasing office space in
the Lincolnshire, Illinois area, reasonable legal expenses, reasonable
attorney's fees and disbursements (collectively called "Landlord's Mitigation
Expenses").
If the consideration collected by Landlord upon any such reletting for
Tenant's account is not sufficient to pay monthly the full amount of the Rent
reserved in this Lease, including all adjustments and escalations, together
with the cost of repairs, alterations, additions, redecorating and Landlord's
Mitigation Expenses, Tenant shall pay to Landlord the amount of each monthly
deficiency ("Monthly Deficiency") upon receipt of written demand.
(2) If Landlord elects to terminate this Lease and Tenant's right to
possession of the Premises, Landlord may recover all damages to which Landlord
is entitled under law, and in such event Landlord shall, if and to the extend
required by law, take reasonable measures to mitigate damages recoverable
against Tenant by attempting to relet the Premises or any part thereof for the
account of Tenant, for such rent, for such term and upon such conditions
(which term may extend beyond the date set forth in Subsection 1.01.G of this
Lease and which conditions may include concessions and free rent periods), as
Landlord, in Landlord's sold discretion shall determine; provided, however,
that Landlord shall not be required to accept any Tenant offered by Tenant or
to observe any instructions given by Tenant about such reletting, nor shall
Landlord be obligated to market or relet the Premises on a priority basis over
unleased or unoccupied space in the Building or the Complex. Landlord's
damages shall specifically include (a) all Landlord's expenses of reletting
(including repairs, alterations, improvements, additions, decorations, and
Landlord's Mitigation Expenses, plus (b) the amount of all Rent owing under
this Lease for the Balance of the Term discounted at the rate of five percent
(5.0%) per year, which amount shall be automatically considered accelerated
and immediately due and payable in full by Tenant to Landlord upon Landlord's
election to terminate this Lease. Landlord's right to terminate this Lease
may also be exercised at any time after an election by Landlord under
Subsection 13.01.B(1) to terminate Tenant's right to possession on the
Premises.
C. If any involuntary action or proceeding under any section or sections
of any bankruptcy act in any count or tribunal shall adjudge or declare Tenant
insolvent or unable to pay Tenant's debts, or if any voluntary petition or
similar proceeding under any section or sections of any bankruptcy act shall
be filed by Tenant in any court or tribunal to declare Tenant insolvent or
unable to pay Tenant's debts, and if such action or proceedings shall not have
been dismissed within sixty (60) days of the institution of such proceeding,
then and in any such event Landlord may, to the extent permitted by law, if
Landlord so elects but not otherwise, and with or without notice of such
election, and with or without entry or other action by Landlord, forthwith
terminate this Lease, and notwithstanding any other provision of this Lease,
Landlord shall forthwith upon such termination be entitled to recover damages
in an amount equal to the then present value of the Rent for the remainder of
the Term, less the then present value of the fair rental value of the Premises
for the remainder of the Term.
D. Tenant hereby grants to Landlord a first lien upon the interest of
Tenant under this Lease.
E. In the event that any remedy set forth in this Section 13.01 shall be
declared unenforceable under any particular circumstances pursuant to any
bankruptcy, insolvency, or other applicable law, the unenforceability of such
remedy shall not affect any other remedy available to Landlord in the same or
any other circumstance.
13.02 ATTORNEYS' FEES
In the event that any action or proceeding is brought to enforce any term,
covenant, condition, or provision of this Lease on the part of Landlord or
Tenant, the prevailing party in such litigation shall be entitled to
reasonable attorneys' fees to be filed by the court in such action or
proceeding.
14. SURRENDER OF PREMISES
Upon expiration or termination of this Lease or termination of Tenant's right
of possession of the Premises, or any part thereof, Tenant shall surrender and
vacate the Premises immediately and deliver possession thereof to Landlord in
a clean, good and tenantable condition, ordinary wear and tear excepted; and
Tenant hereby grants to Landlord full and free license to enter into and upon
the Premises in such event without further notice beyond the notice required
under Section 13.01, and with or without process of law to repossess Landlord
of the Premises as of Landlord's formers estate and to expel or remove Tenant
and any others who may be occupying or be within the Premises and to remove
any and all property therefrom, using such force as may be necessary, without
being deemed in any manner guilty of trespass, eviction or forcible entry or
detainer, and without relinquishing Landlord's rights to Rent or any other
right given to Landlord hereunder or by operation of law.
Upon the expiration or termination of this Lease, at Landlord's election,
Tenant shall remove all alterations, additions, improvements, installments and
decorations from the Premises, except alterations effected pursuant to the
Work Letter attached hereto as Exhibit E. Tenant shall be entitled to remove
from the Premises all moveable trade fixtures and other personal property of
Tenant (other than floor coverings), provided Tenant shall immediately repair
all damage resulting from such removal and shall restore the Premises to its
original condition, ordinary wear and tear excepted. In the event possession
of the Premises is not immediately delivered to Landlord or if Tenant shall
fail to remove all of Tenant's moveable personal property, as aforesaid,
Landlord may remove any of such property therefrom without any liability to
Tenant, and at Tenant's expense. All moveable personal property which may be
removed from the Premises by Landlord shall be conclusively presumed to have
been abandoned by Tenant, and title thereto shall pass to Landlord without any
cost or credit therefor, and Landlord may, at its option and at Tenants
expense, store and/or dispose of such property. Nothing contained in this
Article 14 shall be deemed to limit Landlord's lien rights granted pursuant to
Section 13.01.D hereinabove.
15. HOLDING OVER
For each month or portion thereof Tenant retains possession of the Premises,
or any portion thereof, after the expiration or termination of this Lease,
Tenant shall pay Landlord one hundred fifty percent (150%) of the most recent
Adjusted Monthly Base Rent; provided, however, in the event Tenant shall
provide Landlord with written notice of this need to hold over at least one
hundred eighty (180) days prior to the Expiration Date of Term, Tenant shall
be obligated to pay Landlord only one hundred twenty-five percent (125%) of
the most recent Adjusted Monthly Base Rent for the initial three (3) months of
the holdover period. Tenant shall in all events also pay all actual (but not
consequential) damages sustained by Landlord by reason of any holdover of
possession. The provisions of this Article shall not constitute a waiver by
Landlord of any re-entry rights of Landlord hereinbefore or by law provided.
If Tenant retains possession of the Premises, or any part thereof, for three
(3) months after the expiration or termination of this Lease, then at the sole
option of Landlord expressed by written notice to Tenant, but not otherwise,
such holding over shall constitute a renewal of this Lease for a period of one
year (or less if specified by Landlord at Landlord's option) on the same terms
and conditions, except that the Adjusted Monthly Base Rent shall be increased
to one hundred twenty-five percent (125%) of the Adjusted Monthly Base Rent
applicable for the last full month preceding said expiration or termination,
plus any subsequent escalations.
16. DAMAGE BY FIRE OR OTHER CASUALTY
16.01 SUBSTANTIAL UNTENTABILITY
If the Building or the Premises are made substantially untenantable by fire or
other casualty, Landlord may elect either to: (i) terminate this Lease as of
the date of the fire or other casualty by giving Tenant written notice thereof
within sixty (60) days after said date; or (ii) proceed to repair or restore
the Building or the Premises, other than leasehold improvements and personal
property paid for or installed by Tenant. If such damage occurs during the
last twelve (12) months of the Term, Tenant shall also have the option to
terminate this Lease as of the date of the fire or other casualty by giving
Landlord written notice thereof within thirty (30) days after said date. The
Building or the Premises shall be deemed substantially untenantable if over
five thousand (5,000) square feet of either of the same is damaged by fire or
other casualty.
If neither party terminates this Lease as provided in the preceding paragraph,
Landlord shall notify Tenant within sixty (60) days after the date of such
fire or other casualty of Landlord's reasonable estimate of the time required
to substantially complete such repair or restoration. In the event such
estimate indicates that the time so required will exceed two hundred seventy
(270) days from the date of the casualty, then Tenant shall have the right to
terminate this Lease as of the date of such casualty by giving written notice
thereof to Landlord not later than ten (10) days after the date of Landlord's
notice. If Landlord's estimate indicates that the repair or restoration can
be substantially completed within two hundred seventy (270) days, or if Tenant
fails to exercise its right to terminate this Lease, as aforesaid, this Lease
shall remain in force and effect. If said repair or restoration is not
substantially completed within three hundred sixty-five (365) days following
the date of the casualty (subject to delays beyond Landlord's control), Tenant
may terminate this Lease by providing written notice to Landlord within three
hundred seventy-five (375) days following the date of the casualty.
16.02 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building are damaged by fire or other casualty but
neither is rendered substantially untenantable, then Landlord shall proceed as
promptly as practicable to repair and restore the Building or the Premises,
other than the leasehold improvements and personal property paid for or
installed by Tenant, unless such damage occurs during the last six (6) months
of the Term, in which event either party shall have the right to terminate
this Lease as of the date of such fire or other casualty by giving written
notice thereof to the other party within ten (10) days after the date of such
fire or other casualty.
16.03 RENT ABATEMENT
If all or any part of the Premises are rendered untenantable by fire or other
casualty, or if all or any part of the Building is damaged by fire or other
casualty which makes the Premises untenantable, and this Lease is not
terminated, Adjusted Monthly Base Rent shall abate for all or that part of the
Premises which is untenantable on a per diem basis from the date of the fire
or other casualty until Landlord has substantially completed the repair and
restoration work in the Premises which it is required to perform, provided
that as a result of such fire or other casualty, Tenant does not occupy the
portion of the Premises which is untenantable during such period.
17. EMINENT DOMAIN
17.01 TAKING OF WHOLE
In the event the whole of the Building or the Premises is taken or condemned
by any competent authority for any public use or purpose (including a deed
given in lieu of condemnation), this Lease shall terminate as of the date
title vests in such authority, and Adjusted Monthly Base Rent shall be
apportioned as of said date.
17.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by
any competent authority for any public use or purpose (including a deed given
in lieu of condemnation), Adjusted Monthly Base Rent shall be reduced by an
amount which bears the same ratio to Adjusted Monthly Base Rent then in effect
as the number of square feet of rentable area in the Premises so taken or
condemned bears to the number of square feet of rentable are specified in
Subsection 1.01.I. Landlord, upon receipt of and to the extent of the award
in condemnation or proceeds of sale, shall make necessary repairs and
restorations (exclusive of Tenant's leasehold improvements and personal
property paid for or installed by Tenant) to restore the Premises remaining to
as near its former condition as circumstances will permit, and to the Building
to the extent necessary to constitute the portion of the Building not so taken
or condemned as a complete architectural unit. In the event of a partial
taking or condemnation of the Premises and/or the Building as herein provided,
the rentable area of the Premises specified in Subsection 1.01.I and/or the
rentable area of the Building as specified in this Lease, respectively, shall
be reduced for all purposes under this Lease by the number of square feet of
rentable area of the Premises and/or the Building, respectively, so taken or
condemned or rendered useless by such condemnation.
17.03 COMPENSATION
Landlord shall be entitled to receive the entire price or award from any such
sale, taking or condemnation without any payment to Tenant, and Tenant hereby
assigns to Landlord Tenant's interest, if any, in such award. Notwithstanding
anything to the contrary contained herein, Tenant shall have the right to
claim from the condemning authority all moving and relocation costs required
to be paid under the laws of Illinois, provided Landlord's aware is not
diminished.
18. INSURANCE
18.01 Tenant, at Tenant's expense, agrees to maintain in force during the
Term: (i) Comprehensive General Liability Insurance on an occurrence basis
with limits of liability in amounts not less than: (a) $3,000,000 for bodily
injury, personal injury or death; and (b) $500,000.00 with respect to damage
to property, including water and sprinkler damage; (ii) Hazard Insurance, with
extended coverage and vandalism and malicious mischief endorsements, in an
amount adequate to cover the full replacement value of all leasehold
improvements and all fixtures, contents and wall and floor coverings in the
Premises; (iii) Rental insurance to cover at least one (1) year's Rent; and
(iv) Worker's Compensation insurance to statutory limits.
18.02 The policies referred to in Section 18.01 (i) and 8.01 (iii) shall name
Landlord, the Manager and their respective agents and employees as additional
insureds and shall not provide for deductible amounts. The policy referred to
in Section 18.01 (ii) shall not provide for deductible amounts in excess of
$1,000. Each policy referred to in Section 18.01 shall be issued by one or
more responsible insurance companies reasonably satisfactory to Landlord and
shall contain the following provisions and endorsement: (i) that such
insurance may not be cancelled or amended without thirty (30) days' prior
written notice to Landlord and the Manager; and (ii) an express wavier of any
right of subrogation by the insurance company against Landlord, the Manager
and their respective agents and employees.
18.03 Tenant shall deliver to Landlord, certificates of insurance of all
policies and renewals thereof to be maintained by Tenant hereunder, not less
than ten (10) days prior to the Commencement Date and not less than ten (10)
days prior to the expiration date of each policy.
18.04 Provided that the insurance policies of Tenant will not be invalidated
nor will the right of the insured to collect the proceeds payable under such
policies be adversely affected by the waiver contained in the following
portion of this sentence, each party hereby expressly waives all rights of
recovery which the party making this waiver might otherwise have against the
other party, it's Manager or their agents, and employees, for loss or damage
to person, property or business to the extent that such loss or damage is
covered by valid and collectible insurance policies, notwithstanding that such
loss or damage may result from the negligence of the party receiving this
waiver or its Manager or their agents or employees. Each party shall use its
best efforts to obtain from its insurer the right to waive claims as set forth
in the preceding sentence without thereby invalidating its insurance or
affecting its right to proceeds payable thereunder.
19. RULES AND REGULATIONS
Tenant agrees for itself and for its subtenants, employees, and agents to
comply with the Rules and Regulations attached hereto as Exhibit B and with
all modifications, amendments, and additions thereto which Landlord may
reasonably from time to time make. Landlord shall not be responsible for any
violation of the Rules and Regulations by other tenants of the Building
(unless the same adversely and materially affects Tenant's rights under the
Lease) and shall have no obligation to enforce the same against other tenants,
but Landlord will use reasonable efforts to enforce the same uniformly with
respect to all tenants. Notwithstanding anything to the contrary contained
herein, Tenant shall not be required to comply with any rule or regulation
unless the same applies non-discriminatorily to all occupants of the Building.
20. LANDLORD'S RIGHTS
Landlord shall have the following rights exercisable without notice (except as
expressly provided to the contrary in this Lease), without liability to Tenant
for damage or injury to persons, property or business and without being deemed
an eviction or disturbance of Tenant's use or possession of the Premises or
giving rise to any claim for setoff or abatement of Rent: (i) To change the
Building's name or street address upon thirty (30) days' prior written notice
to Tenant; (ii) To install, affix and maintain all signs on the exterior
and/or interior of the Building; (iii) To designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises or the public corridors of the Building; (iv) To
display the Premises to prospective tenants at reasonable hours during the
last twelve (12) months of the Term; (v) To change the arrangement of
entrances, doors, corridors, elevators and stairs in the Building, provided
that no such change shall materially adversely affect access to the Premises;
(vi) To grant to any party the exclusive right (to the extent permitted by
law) to conduct any business or render any service in or to the Building,
provided such exclusive right shall not operate to prohibit Tenant from using
the Premises for the purposes permitted hereunder; (vii) To prohibit the
placing of vending or dispensing machines of any kind (other than coffee
machines used for non-commercial purposes) in or about the Premises; (viii) To
have access for Landlord and other tenants of the Building to any mail chutes
and boxes located in or on the Premises according to the rules of the United
States Post Office; (ix) To close the Building after normal business hours,
except that Tenant and its employees and invitees shall be entitled to
admission at all times, under such regulations as Landlord reasonably
prescribes for security purposes; (x) To take any and all reasonable measures,
including inspections and repairs to the Premises or to the Building, as may
be necessary or desirable in the operations or protection thereof; (xi) To
retain at all times master keys or pass keys to all doors in and to the
Premises; (xii) To install, operate and maintain a building security system
which monitors, by closed circuit television or otherwise, all persons
entering and leaving the Building and all public areas of the Building
including, but not limited to, elevators and staircases; and (xiii) To install
and maintain pipes, ducts, conduits, wires and structural elements located in
the Premises which serve other parts of the Building, provided, however, that
if such installation or maintenance requires entry into the Premises, Landlord
will use reasonable efforts to minimize any resulting interference with
Tenant's permitted use of the Premises. Notwithstanding anything to the
contrary contained herein, Landlord and Landlord's agents, except in the case
of emergency, shall provide Tenant with twenty-four (24) hours' notice prior
to entry of the Premises. The entry by Landlord and Landlord's agents shall
not impair Tenant's operations more than reasonably necessary, and Landlord
and its agents shall comply with all reasonable security requirements imposed
by Tenant.
21. ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon net less than ten (10) days' prior
written request by Landlord or any mortgagee holding a mortgage on the Land,
the Building and the Complex, or any of the same, deliver to Landlord or such
mortgagee a statement in writing certifying: (i) That this Lease is
unmodified and in full force and effect or, if there have been modifications,
that this Lease, as modified, is in full force and effect; (ii) The amount of
Adjusted Monthly Base Rent then payable hereunder and the date to which Rent
has been paid; (iii) That Landlord is not, to Tenant's knowledge, in default
under this Lease or, if in default, a detailed description of such default(s);
(iv) That Tenant is or is not in possession of the Premises, as the case may
be; and (v) Such other information as Landlord may reasonably request with
regard to this Lease. In the event that Tenant shall fail to deliver the
statement required hereunder ten (10) days after the request by Landlord or
mortgagee, Tenant hereby designates Landlord as its attorney-in-fact to
execute such a statement and grants Landlord the power of attorney to so act.
22. Intentionally Deleted
23. REAL ESTATE BROKERS
Tenant represents that Tenant has not dealt with any real estate brokers,
sales persons, or finders in connection with this Lease other than Frain
Camins & Swartchild and Greystone Realty Management, Inc. and no other persons
initiated or participated in the negotiation of this Lease, or showed the
Premises to Tenant. Tenant hereby agrees to indemnify and hold harmless
Landlord and the Manager from and against any and all liabilities and claims
for commissions and fees arising out of a breach of the foregoing
representation.
24. SUBORDINATION AND ATTORNMENT
24.01 SUBORDINATION
This Lease and the rights of Tenant hereunder shall be and are hereby made
expressly subject and subordinate at all times to the lien of any mortgage now
or hereafter existing against the Land, the Building and the Complex, or any
of the same, and to all advances made or hereafter to be made upon the
security thereof. Tenant agrees to execute and deliver such further
instruments subordinating this Lease to the Lien of any such mortgage as may
be requested in writing by Landlord from time to time. Tenant acknowledges
that its title is and always shall be subordinate to the title of the owner of
the Land, the Building and the Complex, and nothing herein contained shall
empower Tenant to do any act which can, shall or may encumber the title of the
owner of the Land, the Building and the Complex.
Tenant hereby consents in advance to any collateral assignment of this Lease
which Landlord elects, in its sole discretion, to execute.
If, in connection with the financing of the Premises or any part or component
thereof, any lender shall request reasonable modifications of this Lease that
do not materially increase the obligations or materially and adversely affect
the rights of Tenant under this Lease, Tenant covenants to make such
modifications.
If any mortgagee or ground lessor requires execution of a short form of lease
for recording (containing the names of the parties, a description of the
Premises, and the term of this Lease) or a certification from Tenant
concerning the Lease in such form as may be required by a mortgagee or ground
lessor, Tenant agrees to promptly execute such short form of lease or
certificate and deliver same to Landlord within ten (10) days following the
request therefor.
24.02 ATTORNMENT
In the event of the foreclosure of any such mortgage by voluntary agreement or
otherwise, or the commencement of any judicial action seeking such
foreclosure, Tenant, at the written request of the then Landlord, shall attorn
to and recognize such mortgagee or purchaser in foreclosure as Tenant's
Landlord under this Lease. Tenant agrees to execute and deliver at any time
upon written request of such mortgagee, purchaser, or their successors, any
instrument to further evidence such attornment. Tenant hereby waives its
right, if any, to elect to terminate this Lease or to surrender possession of
the Premises in the event of any such mortgage foreclosure.
24.03 LANDLORD'S MORTGAGE - GROUND LEASE
Landlord may execute and deliver a mortgage or trust deed in the nature of
mortgage, both sometimes hereinafter referred to as "Mortgage", against the
Building or any interest therein and may sell and lease back the underlying
land on which the Building is situated. If requested by the mortgagee or
trustee or by the lessor of any ground or underlying lease (ground lessor),
Tenant will either subordinate its interest in this Lease to said Mortgage or
ground lease or make such interest superior and will execute such agreement or
agreements as may be reasonably required by such mortgagee, trustee or ground
lessor.
24.04 MORTGAGE PROTECTION CLAUSE
Tenant agrees to give any mortgagee and/or trust deed holders ("Mortgagee"),
by certified mail, a copy of any notice of default served upon Landlord,
provided that prior to such notice Tenant has been notified in writing (by way
of Notice of Assignment of Rents and Leases, or otherwise) of the address of
such Mortgagee. Tenant further agrees that, if Landlord shall have failed to
cure such default within the time provided for in this Lease, then the
Mortgagee shall have an additional sixty (60) days within which to cure such
default or if such default cannot be cured within that time, then such
additional time as may be necessary to cure such default shall be granted if
within such sixty (60) days Mortgagee has commenced and is diligently pursuing
the remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event, the Lease shall not be terminated while such remedies are being
so diligently pursued.
25. NOTICES
All notices required or permitted to be given hereunder shall be in writing
and shall be deemed given and delivered, whether or not received, when
personally delivered by the other party or its designated agent or courier
service, or, if sent by mail, when deposited in the United States Mail,
postage prepaid and properly addressed, certified mail, return receipt
requested, at the following addresses: (i) To Landlord: c/o Greystone Realty
Management, Inc., Suite 100, 100 Tri-State International Office Center,
Lincolnshire, Illinois 60069, with copies to Greystone Realty Corporation,
Suite 240, 1111 West 22nd Street, Oak Brook, Illinois 60521 and to Paul R.
Diamond, Esq., Holleb & Coff, 55 East Monroe Street, Suite 4100, Chicago,
Illinois 60603, or such other addresses as Landlord shall designate by written
notice to Tenant; and (ii) To Tenant: At the address specified in Subsection
1.01.C prior to the Commencement Date, and at the Premises after the
Commencement Date, or such other address as Tenant shall designate by written
notice to Landlord.
26. COSTS
In the event this Lease or Tenant's right to possession is terminated by
Landlord pursuant to Section 13 hereof, Tenant shall be responsible for and
shall pay to Landlord, as Additional Rent, a prorated amount of any broker's
commission incurred by Landlord in connection with this Lease, rent abatement
received by Tenant through the date of termination, and the cost of the work
effected by Landlord pursuant to the Work Letter attached hereto as Exhibit
E., multiplied by a fraction, the numerator of which is the number of months
remaining under the Term and the denominator of which is one hundred twenty
(120). Landlord represents that the broker's commission incurred by Landlord
in connection with this Lease is One Hundred Twelve Thousand Five Hundred
Forth-Two and 32/100 Dollars ($112,542.32).
27. ENVIRONMENTAL MATTERS
Except for pre-existing conditions, Tenant shall, at Tenant's expense, keep
and maintain the Premises in compliance with all local, state and Federal
environmental laws, ordinances and regulations, including, without limitation,
42 U.S.C. o9601 et seq., 42 U.S.C. o6901 et seq., 49 U.S.C. o1801 et seq., 15
U.S.C. o2601 et seq., and the rules, regulations and guidelines promulgated
thereunder.
28. MISCELLANEOUS
28.01 LATE CHARGES
All delinquent Rent and other payments due from Tenant to Landlord (i) shall
bear interest at twenty-one percent (21%) per annum or the maximum rate
permitted by law, or (ii) Tenant shall pay a flat late charge of ten percent
(10%) of the delinquent rent, whichever is greater.
28.02 ENTIRE AGREEMENT
This Lease and the Exhibits attached hereto contain the entire agreement
between Landlord and Tenant concerning the Premises and there are no other
agreements, either oral or written.
28.03 NO OPTION
The execution of this Lease by Tenant and delivery of same to Landlord or the
Manager does not constitute a reservation of or option for the Premises or an
agreement to enter into a Lease, and this Lease shall become effective only if
and when Landlord executes and delivers same to Tenant; provided, however, the
execution and delivery by Tenant of this Lease to Landlord or the Manager
shall constitute and irrevocable offer by Tenant to lease the Premises on the
terms and conditions herein contained, which offer may not be withdrawn or
revoked for ten (10) days after such execution and delivery. If Tenant is a
corporation, it shall deliver to Landlord, concurrently with the delivery to
Landlord of an executed Lease, certified resolutions of Tenant's directors
authorizing execution and delivery of this Lease and the performance by Tenant
of its obligations hereunder
28.04 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such installment or payment of
Rent or pursue any other remedies available to Landlord. No receipt of money
by Landlord from Tenant after the termination of this Lease or Tenant's right
of possession of the Premises shall reinstate, continue or extend the Term.
28.05 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord and the
seller or transferor (and the beneficiaries of any selling or transferring
land trust) shall be entirely freed and relieved of all agreements and
obligations of Landlord hereunder accruing or to be performed after the date
of such sale or transfer. In any such event, Landlord will obtain from the
purchaser or transferee a written agreement of such purchaser or transferee
undertaking to assume and perform all obligations of Landlord hereunder, after
the date of the sale or transfer.
28.06 BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives, successors and
permitted assigns.
28.07 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter
of convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
28.08 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State of
Illinois.
28.09 TIME
Time is of the essence of this Lease and the performance of all obligations
hereunder.
28.10 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails to timely perform any of its duties under this Lease, Landlord
shall have the right (but not the obligation), after the expiration of any
grace period elsewhere under this Lease expressly granted to Tenant for the
performance of such duty, to perform such duty on behalf and at the expense of
Tenant without further prior notice to Tenant, and all sums expended or
expenses incurred by Landlord in performing such duty shall be deemed to be
Additional Rent under this Lease and shall be due and payable upon demand by
Landlord, together with an administration charge of ten percent (10%) of the
amounts so expended.
28.11 CROSS-DEFAULT
Any default by Tenant under this Lease shall constitute default by Tenant
under any other lease or rental arrangement for space in the Building or under
any other agreement to which Tenant or one or more of its guarantors is a
party relating to any other interest in the Building or Land. Any default by
Tenant under any other lease or rental arrangement for space in the Building
or under any other agreement relating to any other interest in the Building or
Land to which Tenant is a party, shall constitute a default by Tenant under
this Lease.
28.12 LIMITATION ON LANDLORD'S LIABILITY
It is expressly understood and agreed by Tenant that none of Landlord's
covenants, undertakings or agreements are made or intended as personal
covenants, undertakings or agreements by Landlord, and any liability for
damage or breach or nonperformance by Landlord shall be collectible only out
of Landlord's interest in the Building and the Land and no personal liability
is assumed by, nor at any time may be asserted against, Landlord or any of its
officers, agents, employees, legal representatives, successors or assigns, all
such liability, if any, being expressly waived and released by Tenant.
28.13 RECORDING
Neither Landlord nor Tenant shall record this Lease. If Landlord requests,
the parties shall execute and acknowledge a short form of lease for recording
purposes which shall be recorded at Landlord's expense.
28.14 INVESTMENT TAX CREDIT
Landlord reserves to itself all investment tax credit for Tenant finish and
related items, which are the cost and responsibility of Landlord.
28.15 RIGHT OF FIRST REFUSAL
The portion of the third (3rd) floor of the Building excluding the Premises is
herein referred to as "Offered Space." Landlord agrees that if the Landlord
receives a bona fide written offer to lease all or a portion of the Offered
Space (hereinafter the "Refusal Space") from an independent third party
(hereinafter "Potential Tenant") at a Monthly Base Rent and other terms and
conditions acceptable to Landlord, then, if this Lease is in effect and no
Event of Default has occurred and Tenant is in occupancy of the Premises,
Landlord shall give Tenant a written notice (hereinafter the "Offering
Notice") specifying (1) the Refusal Space, (2) the Monthly Base Rent,
including Adjusted Monthly Base Rent and Operating Expenses and Taxes expense
stop, at which Landlord is willing to rent the Refusal Space to such Potential
Tenant, (3) the rent concessions, if any, to be provided to such Potential
Tenant, (4) the Tenant Improvement allowance, if any, to be provided by
Landlord to such potential Tenant at Landlord's cost and expense, (5) and
other financial terms of the proposed transaction that would have a material
impact thereon. Tenant shall have the right (hereinafter the "Matching
Option"), but not the obligation, subject to all of the terms and conditions
set forth herein, to lease all of such Refusal Space on the terms and
conditions set forth by Landlord in the Offering Notice for a term commencing
on the later of (1) the date of the Acceptance Notice (as hereinafter defined)
and (2) the date Landlord shall deliver vacant possession thereof to Tenant
(such later date for the inclusion of such Refusal Space in the Premises is
hereinafter referred to as the "Matching Term Commencement Date") and expiring
on the earlier to occur of (i) the expiration date indicated in the bona fide
offer and (ii) the expiration date of the Term.
The Matching Option may be exercised by Tenant's giving written notice to
Landlord (hereinafter the "Acceptance Notice") of Tenant's exercise of said
Matching Option not more than five (5) business days after Landlord's delivery
of the Offering Notice to Tenant. Upon Tenant's giving of the Acceptance
Notice, this Lease shall automatically be deemed to include such Refusal Space
in question effective as of the Matching Term Commencement Date upon the terms
and conditions specified herein. If Tenant shall not give the Landlord the
Acceptance Notice at the time and in the manner set forth above, Landlord
shall be free to lease the Refusal Space to the Potential Tenant or an
affiliate thereof on terms not materially less favorable to Landlord than
those contained in the Offering Notice and Tenant shall have no rights to the
Refusal Space unless and until such time that Landlord shall have terminated
its negotiations with the Potential Tenant or affiliate thereof as to such
Refusal space or if the terms and conditions are changed so as to be
materially less favorable to Landlord, at which time such Refusal Space shall
again become subject to the right of first refusal contained herein.
If Tenant exercises the Matching Option with respect to the Refusal
Space, then effective as of the Matching Term Commencement Date, the following
shall apply:
(i) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Refusal Space on the terms and conditions hereinafter set forth
on the Matching Term Commencement Date and ending on the earlier to occur of
the expiration date indicated in the bona fide offer and the expiration date
of the Term.
(ii) The Monthly Base Rent payable under Section 3 herein shall be
further increased by the Monthly Base Rent for the Refusal Space.
(iii) Taxes and Operating Expenses payable under Section 4 shall be
increased proportionately to reflect the additional rentable area in the
Refusal Space.
(iv) Except as otherwise specifically provided herein, from and after the
exercise of the Matching Option by Tenant, all references in this Lease to the
Premises shall be deemed to apply to the Refusal space as well as the Premises
initially leased hereunder and all of the terms, provisions, and conditions of
the Lease (except that the Operating Expense applicable to the Refusal Space
shall be as set forth in the Offering Notice) shall apply to the Refusal Space
with the same force and effect as if it were leased to Tenant initially
together with the Premises originally demised hereunder.
28.16 STORAGE SPACE
At Tenant's option, during the Term, Landlord shall provide Tenant with
available secured penthouse storage space in the Building. Tenant shall pay
Landlord Twelve and No/100 Dollars ($12.00) per rentable square foot of said
storage space, payable in equal monthly installments together with Monthly
Base Rent payable hereunder.
28.17 EXPANSION OPTIONS
A. Notwithstanding anything to the contrary contained herein, provided that
there exists no Event of Default and Tenant is in occupancy of the Premises,
Tenant shall have the option, but not the obligation, by providing Landlord
with one hundred eighty (180) days prior written notice, of including in the
Premises the office space identified in Exhibit C as the First Expansion
Space, consisting of 5,000 - 6,000 rentable square feet (based upon a mutually
acceptable space plan to be measured by Landlord), as of September 1, 2000
(the "First Expansion Space Commencement Date").
If Tenant exercises its right to add the First Expansion Space to the
Premises, then effective as of the First Expansion Space Commencement Date,
the following shall apply:
(i) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the First Expansion Space on the terms and conditions hereinafter set
forth on the First Expansion Term Commencement Date and ending on the
expiration of the Term.
(ii) The Tenant shall pay Monthly Base Rent for the First Expansion Space
on the same basis and at the same rental rate as the base rental rate for the
original office space demised hereunder, as the same is increased from time to
time.
(iii) Taxes and Operating Expenses payable under Section 4 shall be
increased proportionately to reflect the additional rentable area in the First
Expansion Space.
(iv) Landlord shall provide Tenant with the First Expansion Space "as is"
and Landlord shall furnish Tenant with a Tenant's Improvement Allowance for
the First Expansion Space in the amount of $12.50 per rentable square foot,
payable upon completion of the Tenant's modifications to the Premises and
delivery of satisfactory waivers of lien, paid invoices, receipts and
reasonable documentation requested by Landlord.
(v) Except as otherwise specifically provided in this Section, from and
after the exercise of the First Expansion Option by Tenant, all references in
the Lease to the Premises shall be deemed to apply to the First Expansion
Space as well as the Premises initially leased hereunder and all of the terms,
provisions, and conditions of the Lease shall apply to the First Expansion
Space with the same force and effect as if it were leased to Tenant initially
together with the Premises originally demised hereunder.
B. Notwithstanding anything to the contrary contained herein, provided that
there exists no Event of Default and Tenant is in occupancy of the Premises,
Tenant shall have the option, but not the obligation, by providing Landlord
with one hundred eighty (180) days prior written notice, of including in the
Premises the office space identified in Exhibit D as the Second Expansion
Space, consisting of 5,000 - 6,000 rentable square feet (based upon a mutually
acceptable space plan to be measured by Landlord), as of September 1, 2003
(the "Second Expansion Space Commencement Date").
If Tenant exercises its right to add the Second Expansion Space to the
Premises, then effective as of the Second Expansion space Commencement Date,
the following shall apply:
(i) Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the Second Expansion Space on the terms and conditions hereinafter
set forth on the Second Expansion Term Commencement Date and ending on the
expiration of the Term.
(ii) The Tenant shall pay Monthly Base Rent for the Second Expansion
Space on the same basis and at the same rental rate as the base rental rate
for the original office space demised hereunder, as the same may increase from
time to time.
(iii) Taxes and Operating Expenses payable under Section 4 shall be
increased proportionately to reflect the additional rentable area in the
Second Expansion Space.
(iv) Landlord shall provide Tenant with the Second Expansion Space "as
is" and Landlord shall furnish Tenant with a Tenant's Improvement Allowance
for the Second Expansion Space in the amount of $12.50 per rentable square
foot, payable upon completion of the Tenant's modifications to the Premises
and delivery of satisfactory waivers of lien, paid invoices, receipts and
other reasonable documentation requested by Landlord.
(v) Except as otherwise specifically provided in this Section, from and
after the exercise of the Second Expansion Option by Tenant, all references in
the Lease to the Premises shall be deemed to apply to the Second Expansion
Space as well as the Premises initially leased hereunder and all of the terms,
provisions, and conditions of the Lease shall apply to the Second Expansion
Space with the same force and effect as if it were leased to Tenant initially
together with the Premises originally demised hereunder.
28.18 RENEWAL OPTION
Provided the following conditions shall have been fully satisfied, Tenant
shall have an option (the "Extension Option") to extend the term of this Lease
for one (1) additional term (the "Extended Term") of five (5) years,
commencing on the date (the "Option Period Commencement Date") immediately
succeeding the date set forth in Subsection 1.01G hereinabove:
(i) At least one (1) year prior to the Option Period Commencement Date,
Landlord shall have received from Tenant written notice (the "Extension
Notice") of Tenant's election to exercise the Extension Option; and
(ii) There shall not be an Event of Default under this Lease on either
the date of Landlord's receipt of the Extension Notice or the Option Period
Commencement Date.
Monthly Base Rent during the Extended Term shall equal the prevailing market
rent. "Prevailing market rent" shall mean with respect to any space in the
Building and Complex, the annual Monthly Base Rent per rentable square foot
together with rent abatement and other rental concessions, Tenant's
Improvement allowances and escalation and Operating Expense stops or other
escalation benchmarks then being offered by Landlord to bona fide third party
prospects in the Building and Complex which is comparable in size, location,
area, degree of prior improvement, view, and for a lease term comparable to
the term that such space would be leased by Tenant.
28.19 EXCLUSIVE USE.
Notwithstanding anything to the contrary contained herein, except with respect
to existing tenants of the Complex, Landlord shall not lease, sublease or
assign or allow to be leased, subleased or assigned space within the Building
to any tenant that is a "competitor of Tenant" prior to and during the Term.
A "competitor of Tenant" is an individual or entity that is engaged in the
provision of staff in support of the operational elements of its clients'
computer technology assets and resources, but such term does not include an
entity engaged in support of the programming-, maintenance-, or
applications-related aspects, or any other aspect, of such assets and
resources. Further, to be a "competitor of Tenant", such entity must provide
its operations staff support only in one (1) or more the following computing
environments; (a) mainframe and mid-range computer operations; (b) desktop and
workstation computing (PC/LAN); (c) voice and data communications
(LAN/WAN-local and wide area networks); (d) computer "help desk" operations;
or (e) client-server operations. Any breach of this provision by Landlord
shall constitute a material breach of this Lease.
In the event Landlord defaults in its obligations under this Section 28.19 and
said default continues for one hundred twenty (120) days following delivery to
Landlord of Tenant's written notice of the same, Tenant may terminate the Term
upon notice to Landlord, as Tenant's sole remedy hereunder.
28.20 TENANT'S RIGHT TO ACCELERATE EXPIRATION DATE.
Notwithstanding anything to the contrary contained herein, provided that there
is no Event of Default hereunder, Tenant may elect to accelerate the
Expiration Date to the last day of the eighty-fourth (84th) full calendar
month of the Term by providing Landlord with two hundred seventy (270) days
prior written notice of said election and paying to Landlord with said notice
a termination fee equal to (i) all unamortized costs to the Landlord of the
Tenant's Improvements, as defined in the Work Letter, and broker's commission
costs paid by Landlord as a result of this Lease (assuming straight-line
amortization from the date incurred through the original Expiration Date of
Term and a ten percent (10%) interest factor) plus (ii) Adjusted Monthly Base
Rent otherwise payable for the six (6) month period commencing with the
proposed Accelerated Expiration Date.
28.21 RESERVED PARKING.
During the Term, Tenant shall be entitled to the use of six (6) reserved
parking spaces at the north end of the Building, except to the extent
prohibited by applicable codes, regulations, laws and the like.
28.22 TEMPORARY SUPPORT CENTER
Landlord agrees to provide early occupancy of up to approximately 2,500
rentable square feet of the Premises commencing August 15, 1996 for Tenant's
Temporary Support Center. All of the terms and provisions hereof shall be
binding upon Tenant as of the taking of such early occupancy, other than
Tenant's obligation to pay Adjusted Monthly Base Rent hereunder.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth
in Subsection 1.01.D hereof.
LANDLORD:
NEW YORK LIFE INSURANCE COMPANY
By: Greystone Realty Corporation, for
New York Life Insurance Company
_____________________________
By: Jean-Marie Murphy
Senior Vice President
TENANT:
ALTERNATAIVE RESOURCES CORPORATION
By: ________________________________
Title: ______________________________
EXHIBIT B
RULES AND REGULATIONS
(1) Any sign, lettering, picture, notice or advertisement installed within the
Premises which is visible from the public corridors within the Building shall
be installed in such manner and be of such building standard character and
style as Landlord shall approve in writing. No sign, lettering, picture,
notice or advertisement shall be placed on any outside window or in a position
to be visible from outside the Building, except as specifically approved by
Landlord. No window treatments visible from the outside of the Building shall
be made without the prior written approval of Landlord;
(2) Sidewalks, entrances, passages, courts, corridors, halls, elevators and
stairways in and about the Premises shall not be obstructed nor shall objects
be placed against glass partitions, doors or windows which would be unsightly
from the Building's corridors or from the exterior of the Building;
(3) No animals, pets, bicycles or other vehicles shall be brought or permitted
to be in the Building or the Premises;
(4) Room to room canvasses to solicit business from other tenants of the
Building are not permitted;
(5) Tenant shall not waste electricity, water or air-conditioning and shall
cooperate fully with Landlord to assure the most effective and efficient
operation of the Building's heating and air-conditioning systems. All
controls shall be adjusted only by personnel authorized by Landlord;
(6) All corridor doors shall remain closed at all times;
(7) No locks or similar devices shall be attached to any door except by
Landlord and Landlord shall have the right to retain a key to all such locks
(8) Except for Landlord's gross negligence or willful misconduct, Tenant
assumes full responsibility of protecting the Premises from theft, robbery and
pilferage. Except during Tenant's normal business hours, Tenant shall keep
all doors to the Premises locked;
(9) Landlord shall have the right to require Tenant and its employees to
produce Tenant identification cards (if issued by Landlord) as a condition to
entering the Premises or for other purposes affecting the security of the
Building;
(10) All cleaning, repairing, janitorial, decorating, painting, construction
or other services and work in and about the Premises shall be done only by
personnel hired by Landlord;
(11) Safes, furniture, equipment, machines and other large or bulky articles
shall be brought to the Building and into and out of the Premises at such
times and in such manner as Landlord shall direct (including the designation
of elevator and the location of such articles) and at Tenant's sole risk and
cost. Prior to Tenant's removal of such articles from the Building, Tenant
shall obtain written authorization of the Manager of the Building and shall
present such authorization to a designated employee of Landlord;
(12) Tenant shall not in any manner deface or damage the Building;
(13) Inflammables such as gasoline, kerosene, naphtha and benzene, or
explosives or any other articles of an intrinsically dangerous nature are not
permitted in the Building or the Premises;
(14) Landlord's consent to the installation of any electrical equipment shall
not relieve Tenant from the obligation not to use more electricity than the
safe capacity available to the Premises as provided in this Lease;
(15) To the extent permitted by law, Tenant shall prohibit picketing or other
union activity involving its employees in the Building, except in those
locations and subject to time and other limitations as to which Landlord may
give prior written consent;
(16) Tenant shall not enter into or upon the roof or those portions of the
basement of the Building immediately containing any storage, heating,
ventilation, air-conditioning, mechanical or elevator machinery housing areas;
(17) Tenant shall not distribute literature, flyers, handouts or pamphlets of
any type in any of the common areas of the Building, without the prior written
consent of Landlord;
(18) Tenant shall not cook, otherwise prepare or sell any food or beverages in
or from the Premises or sell or serve any alcoholic beverages in or from the
Premises, except that Tenant may cook or prepare food or non-alcoholic
beverages for consumption on the Premises by employees, and, provided that
Tenant has obtained liquor liability insurance as required under Section 18.05
of this Lease, and has delivered to Landlord a certificate of insurance
evidencing such insurance, then Tenant shall not be deemed to be violating
this Rule 18 by serving alcoholic beverages incidentally to the conduct or
development of Tenant's business as permitted by its lease, provided that in
no event shall Tenant sell any alcoholic beverages nor serve the same, nor
offer the service of alcoholic beverages to members of the general public;
(19) Tenant shall not permit the use of any apparatus for sound production or
transmission in such manner that the sound so transmitted or produced shall be
audible or vibrations therefrom shall be detectable beyond the Premises;
(20) Tenant shall keep all electrical and mechanical apparatus free of
vibration, noise and air waves which may be transmitted beyond the Premises;
(21) Tenant shall not permit objectionable odors or vapors to emanate from the
Premises;
(22) Tenant shall not place a load upon any floor of the Premises exceeding
the floor load capacity for which such floor was designed or allowed by law to
carry; and
(23) No floor covering shall be affixed to any floor in the Premises by means
of glue or other adhesive without Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed.
EXHIBIT E
WORK LETTER
Lincolnshire, Illinois
July 15, 1996
Re: Work Letter for Interior Construction Pursuant to Lease dated
July 15, 1996 for 26,578 rentable square feet ("Premises") of the
Building ("Building") commonly known as Building 100 Tri-State
International Office Center, Lincolnshire, Illinois ("Lease") by and
between Alternative Resources Corporation, as Tenant ("Tenant") and
New York Life Insurance Company, c/o Greystone Realty Corporation,
Agent, as Landlord ("Landlord")
Gentlemen:
This Work Letter is being executed simultaneously with that certain lease
and any riders thereto by and between the above named Landlord and Tenant
wherein Tenant is leasing certain space in the commercial building known as
Building 100, Tri-State International Office Center, Lincolnshire, Illinois.
To induce Tenant to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant agree as follows:
1. Capitalized Terms. Capitalized terms used in this Work Letter without
definition or reference to an exhibit shall have the meanings given to such
terms in the Lease, unless the context otherwise requires.
2. Plans.
(a) Subject to the provisions of this Work Letter, Landlord shall
complete the improvements within the Premises requested by Tenant as
hereinafter provided ("Tenant's Improvements"), to be constructed in
accordance with the plans dated June 7, 1996, prepared by Goss Posma Barker
(the "Plans") (which plans are attached to the Lease as part of Exhibit F),
using Landlord's Building Standard materials and finishes, on a turn key
basis. In addition to the foregoing, Tenant shall pay to Landlord the sum of
one hundred sixty-three thousand two hundred forty-five dollars ($163,245.00)
as Tenant's contribution toward the cost of Tenant's Improvements, which sum
shall be due and payable within ten (10) days of substantial completion of
Tenant's Improvements.
(b) Tenant's Plans are hereby approved by Landlord and Tenant. Any
changes to such plans shall be subject to Landlord's advance written approval,
which approval shall not be unreasonably withheld or delayed, and the cost of
preparing all such changes shall be paid by the Tenant.
3. Delays.
(a) Should Tenant:
(1) change the Plans in any manner; or
(2) fail to perform or complete any obligation of Tenant
hereunder in a timely manner; then:
(i) Landlord shall not be required to proceed with
construction until such time as the appropriate plans and/or approvals are
delivered and all other terms and conditions of this Work Letter with respect
to Tenant's obligations are met; and (ii) Rent shall commence on the schedule
Commencement Date of the Lease Term regardless of whether or not the Premises
have been completed by that time.
Landlord agrees to provide Tenant with written notice if
any proposed change in the Plans is expected by Landlord to cause delays in
Landlord's substantial completion of Tenant's Improvements.
(b) Landlord estimates (but does not represent and warrant to
Tenant) that the Tenant's Improvements will be completed, and the Premises
will be available for possession by Tenant, no later than the date specified
in Subsection 1.01.F of this Lease ("Estimated Possession Date"). In no event
shall Landlord be liable to Tenant for any damages of any kind for failure to
complete the Tenant's Improvements or to deliver the Premises to Tenant on the
Estimated Possession Date. However, in such event, Monthly Base Rent shall
abate until Landlord delivers possession of the Premises "substantially
complete", as reasonably determined by Landlord's Architect. The Premises
shall not be deemed to be less that "substantially complete" if only minor or
insubstantial details of construction, decoration or mechanical adjustments
remain to be done in the Premises or any part thereof, if the delay in such
completion is due to special work, changes, alterations or additions required
or made by Tenant in the layout or finish of the Premises or any part thereof,
or to any extent caused by Tenant through the delay of Tenant in submitting
plans, supplying information, approving plans, specifications or estimates, if
any, giving authorization, or otherwise, or to the extent caused by delay
and/or default of or the breach of any provision of this Lease on the part of
Tenant, or anyone claiming through Tenant or their respective agents or
employees. Without limiting the generality of the foregoing, the Premises
shall not be deemed unready for Tenant's occupancy by reason of any delay in
substantially completing Tenant's Improvements that result from Tenant's
specifying items that, under normal construction scheduling and actual
lead-time period for ordering materials, cannot reasonably be expected to be
substantially completed on or before the date specified in Subsection 1.01.F
of this Lease (including, without limitation, millwork items, and special
lighting plans), (collectively called ("Long Lead-Time Items"). The provision
of subparagraph 3(a) hereof shall apply to all delays arising from any failure
by Tenant to meet the time and performance obligations set forth herein,
including the failure to make any payments due hereunder, or any other act or
omission by Tenant, its agents or employees which delays substantial
completion including, but not limited to, any delays caused by the ordering
and delivery of special materials or equipment at Tenant's request.
4. Tenant's Access to the Premises. Landlord, at Landlord's reasonable
discretion, may permit Tenant and Tenant's agents to enter the Premises prior
to the completion of the Tenant's Improvements in order that Tenant may make
the Premises ready for Tenant's use and occupancy. If Landlord permits such
entry, such permission shall constitute a license only and such license shall
be conditioned upon Tenant working in harmony and not interfering with
Landlord and Landlord's agents, contractors, workmen, mechanics and suppliers
in doing the Tenant's Improvements, or other work of Landlord in the Building
or with other tenants and occupants of the Building. Landlord shall have the
right to withdraw such license for any reasonable reason upon twenty-four (24)
hours' written notice to Tenant. Tenant agrees that any such entry as
described herein shall be at its own risk and that Landlord shall not be
liable for any injury, loss or damage which may occur to any of Tenant's
property or personal injuries to any of Tenant's employees or agents as a
result thereof. Tenant further agrees to protect, defend, indemnify and hold
Landlord harmless from all liabilities and expenses, except if due to
Landlord's negligence or willful misconduct, arising out of or connected with
the activities of Tenant and its employees or agents in or about the Building
including, but not limited to, any and all liabilities for damage to or loss
of any materials or equipment of Tenant which are stored on the Premises.
5. Miscellaneous.
(a) All Tenant's Improvements and Tenant's changes shall be effected
by Landlord, or its designers, contractors or subcontractors, in accordance
with the terms, conditions and provisions herein contained, incorporated by
reference, or otherwise agreed to in writing by the parties.
(b) With respect to all payments provided for herein, Landlord shall
have all of the rights and remedies granted to it in the Lease in connection
with the enforcement of the collection of Rent owing thereunder.
(c) Time is of the essence in this Work Letter.
(d) Under no circumstances shall Rent otherwise payable under this
Lease abate in whole or in part because of any delay, expense or cost
hereunder, arising or incurred in connection with any modification, revision,
change or special request made by Tenant in any of the plans and
specifications provided for herein or otherwise agreed to by the parties in
writing.
(e) In the event of a dispute as to whether the Premises have been
competed in accordance with the terms provided in this Lease and Work Letter,
the joint decision of Landlord's architect and of an architect retained by
Tenant at Tenant's cost, shall be binding and conclusive.
(f) This Work Letter shall not be deemed applicable to any
additional space added to the Premises at any time or from time to time,
whether by any option under the Lease or otherwise.
Dated as of the date first above written.
LANDLORD: TENANT:
NEW YORK LIFE INSURANCE COMPANY ALTERNATIVE RESOURCES
By: Greystone Realty Corporation, for CORPORATION
New York Life Insurance Company
By: ________________________________ By: ______________________
Charles J. Lauckhardt Title:
___________________
Vice Chairman
EXHIBIT G
Addendum to Lease
The following addendum to the Office Lease (Lease) between New York Life
Insurance Company (Landlord) and Alternative Resources Corporation (Tenant)
dated July 15, 1996, shall supersede the original provisions of the lease.
1. Section 4.01E (1) (2) shall be changed to the following:
"(1) Operating Expenses incurred in one Adjustment Year but which, pursuant to
generally accepted accounting principles consistently applied, should be
charged to tenants over a period of more than one Adjustment Year because of
the amount or nature of such expenses ("Amortized Operating Expenses"); (2)
the cost of capital equipment acquired for the purpose of reducing energy or
utility costs or other Operating Expenses (which, in accordance with generally
accepted accounting principles consistently applied, should be amortized over
a period of more than one Adjustment Year) ("Conservation Expenditures")".
2. Section 8, Paragraph 1, Sentence 1, shall be changed to the following:
"Subject to punch list or items to be corrected pursuant to the work letter,
Tenant shall be conclusively deemed to have accepted the Premises in the
condition existing on the date Tenant first takes possession and to have
waived all claims relating to the condition of the Premises."
3. Section 13.01 A (4) shall be changed to the following:
"(4) If the Premises or the building are damaged by reason of intentional
misconduct of the Tenant, its agents, or employees and such damage has not
been repaired within thirty (30 days of its occurrence;"
4. Section 24.05 shall be added as follows:
"24.05 NON DISTURBANCE AGREEMENT
Notwithstanding anything to the contrary contained in this article 24,
Tenant's subordination of its interest under this lease to any mortgage
affecting the property is contingent upon Tenant obtaining a commercially
reasonable form of non disturbance agreement from said mortgagee which is no
less favorable to Tenant than the form set forth on Exhibit H."
5. Section 28.19, the last paragraph of the section shall be changed to the
following:
"In the event Landlord defaults in its obligations under this Section 28.19
and said default continues for one hundred twenty (120) days following
delivery to Landlord of Tenant's written notice of the same and Landlord shall
promptly pay to Tenant the unamortized cost of the Tenant's portion of the
Build Out, and Tenant may terminate the Term upon notice to Landlord."
LANDLORD: TENANT:
NEW YORK LIFE INSURANCE COMPANY ALTERNATIVE RESOURCES
By: Greystone Realty Corporation, for CORPORATION
New York Life Insurance Company
By: _____________________________ By: ________________________
JEAN-MARIE MURPHY Title: ______________________
Senior Vice President
FIRST AMENDMENT TO OFFICE LEASE
THIS FIRST AMENDMENT ("First Amendment") is made as of the 23rd day of
September, 1996, by and between BEACON PROPERTIES L.P. ("Landlord") and
ALTERNATIVE RESOURCES CORPORATION (Tenant").
WITNESSETH:
WHEREAS, Landlord's predecessor-in-interest and Tenant are parties to
that certain Office Lease dated July 15, 1996 (the "Lease"), regarding the
premises commonly known as Suite 300, Building 100, Tri-State International
Office Center, Lincolnshire, Illinois 60069 (the "Premises"); and
WHEREAS, Landlord and Tenant desire to modify the Lease to change the
term thereunder and provide Tenant with early possession of a portion of the
office space demised under the Lease, upon the terms contained herein.
NOW, THEREFORE, in consideration of the mutual convenants herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed as follows:
1. Defined Terms. All capitalized terms appearing herein shall have the
meanings assigned to such terms in the Lease, unless otherwise provided
herein.
2. Commencement and Expiration Dates. The Commencement Date specified in
Subsection 1.01.F. of the Lease is hereby changed from September 1, 1996 to
November 1, 1996 and the Expiration Date specified in Subsection 1.01.G. of
the Lease is hereby changed from August 31, 2006 to October 31, 2006.
3. Early Occupancy. Landlord shall make a portion of the Premises
consisting of not more than 2,854 rentable square feet, as depicted in Exhibit
"A" hereto (the "Early Occupancy Premises"), available for Tenant's use and
occupancy during the period commencing September 19, 1996 and ending on the
Commencement Date (the "Early Occupancy Period"). (For purposes of Section
2.02 of the Lease, the Commencement Date shall be defined without regard to
Tenant's use and occupancy of the Early Occupancy Premises hereunder.) In no
event shall the Commencement Date be extended for delays in the completion of
Tenant's Improvements resulting in whole or in part from Tenant's use and
occupancy of Early Occupancy Premises during the Early Occupancy Period.
During the Early Occupancy Period, Tenant shall pay Monthly Base Rent to
Landlord in the amount of $3,667.39, which amount shall be prorated for
partial months occurring during the Early Occupancy Period and adjusted in
accordance with Section 4.02 (excluding Subsection 4.02.A.) of the Lease. For
purposes of such adjustments, the Rentable Area of the Premises shall be
deemed to be 2,854 rentable square feet. Notwithstanding anything in the
Lease as hereby amended to the contrary, Tenant shall be bound during the
Early Occupancy Period by all of the covenants, terms and conditions to be
performed or observed by Tenant under the Lease, as modified by this First
Amendment.
4. Reaffirmation of Lease. Except as otherwise expressly provided in
this First Amendment, the terms of the Lease are hereby ratified and
reaffirmed.
IN WITNESS WHEREOF, the parties have executed this First Amendment on the
day and year first above written.
LANDLORD:
BEACON PROPERTIES L.P.
By: __________________________
General Partner
By: ___________________
Its: _____________________
TENANT:
ALTERNATIVE RESOURCES CORP.
By: ______________________________
Its: ______________________
Exhibit B
FLOOR PLAN SHOWING LOCATION OF PREMISES
Exhibit C
MEMORANDUM CONFIRMING THE COMMENCEMENT DATE
THIS MEMORANDUM is made and entered into as of the _____ day of
_________, 1999 by and between ALTRNATIVE RESOURCES CORPORATION
("Sublandlord") and SUCCESS NATIONAL BANK ('Subtenant").
Sublandlord and Subtenant have entered into that certain Sublease dated
as of the _____ day of __________, 1999 (the "Sublease"). Sublandlord and
Subtenant confirm that the Commencement Date of the Term of the Sublease is
__________________________, 1999.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the
date and year first above written.
SUBLANDLORD: ALTERNATIVE RESOURCES CORPORATION
By: ______________________________
Its _________ President
SUBTENANT: SUCCESS NATIONAL BANK
By: _____________________________
Its _______ President
Exhibit D
FURNITURE
File Cabinets
5 drawer = 45
3 drawer = 8
2 drawer = 19
5 drawer single = 1
2 drawer single = 3
2 door cab. = 4
81: 5 shelf bookcase
Desk
Bridge
Credenza with 2 drawers
4 visitor chairs
1 leather chair
Round table
1 unit with 2 long file drawers
Wipe Board
101: Courtesy desk
Lamp
4 comfy chairs
1 straight back chair
2 rolling chairs
2 little cube shaped tables drawer
drawer file
103: 3 shelving unit with bottom
1 visitor chair
1 chair
2 bridge each with drawer file
104: 4 shelving unit with bottom
1 visitor chair
1 chair
2 bridge each with drawer file
105: Server rack
2 overhead shelves
desk: file file
desk: drawer drawer file
1 fixed desk (no drawers)
5 overhead cupboards (fixed)
air conditioning unit
18 server cabinets
4 big chairs
2 big file cabinets (5 drawers each)
109: 2 overhead bins with lights
file file
2 chairs
110: 2 overhead bins with light
2 drawer file
2 chair
118: 5 shelving unit
U shaped config
2 visitor chairs
1 leather chair
Desk with 2 drawer/file bridge
Bridge with 2 long file drawers
2 long file drawers
119: 2 long file drawers
2 visitors chairs
1 leather chair
Table Desk
Cindy's drawing (break front unit maybe?)
120: U shaped config
2 visitor chairs
2 long file drawers
1 leather chair
desk
bridge
1 drawer drawer file
2 long file drawer
5 shelving unit
121: U shaped config.
2 visitor chairs
1 leather chair desk
2 bridge with 2 long file drawers
2 long file with 3 shelving unit
2 long file
122: U shaped config.
1 leather
4 long drawer desk
table thing
123: 3 shelving unit
roundtable
4 chairs
1 leather chair
desk
bridge
2 long drawer file
111: 2 desks: both drawer drawer file
wipe board
4 overhead bins
3 rolling chairs
112: Desk
Bridge
3 units each with 2 long file drawers
2 bookcases with 3 shelves a piece
1 bookcase with 5 shelves
3 visitor chairs
1 leather chair
wipe board
113: 1 round table
10 tables
18 chairs
114: U shaped config
Desk
Bridge with overhead binder bins
4 file drawers
Leather desk chair 2 visitor chairs
115: 3 shelving units
U shaped config.
Desk
Bridge
4 long file drawers
Leather desk chair
2 visitor chairs
116: U shaped config.
5 shelving units
2 visitor chairs leather desk chair
2 way bridge
2 long file drawers
117: 2 long file with 2 shelving unit
2 visitors chairs
1 leather chair
2 bridge
bridge with 2 drawer file
2 long file drawers
125: U shaped config.
5 shelving unit
round table
4 leather chairs
2 leather visitor chairs
1 leather chair
desk
bridge
2 file bin bottom bride with overhead binder bins
2 long file drawer
126: 1 leather chair
2 visitor leather chairs
hutch with book case
desk: forms square conference table
bridge
127: Leather love seat
4 chairs
rectangle table
128: 4 shelving unit
credenza
desk
1 leather chair
4 long shelf file
129: Round table
4 leather chairs
2 leather visitor chairs
1 leather desk chair
2 bridge
2 long file with 3 shelving unit
2 long file
130: Oval Table
6 leather chairs
3 regular chairs
1 love seat
desk
leather desk chair
2 end tables
3 armoires credenza with 6 drawers shelf unit
Wipe board
132: Desk
Bridge
Credenza
2 overhead binder bins
bookcase with 2 shelves
wooden round table
5 visitor chairs
leather desk chair
134: Rolling fax table
135: 4 long file
2 shelving unit
2 visitor chairs
1 chair
2 bridge
bridge with 2 drawer file
136: 3 shelving unit
2 visitor chairs
1 leather chair
2 long file drawer
2 bridge
bridges with drawer file
137: 5 shelving unit
2 visitor chairs
1 leather chair
2 long file drawer
2 bridges
bridge with drawer file
138: 2 visitor chairs
1 leather chair
2 bridge
bridge with drawer file
2 long file
5 shelving unit
139: 5 shelving unit
round table with 3 chairs
2 desk
1 overhead bin
140: 3 file file
2 overhead bins with light
bridge
142: 1 long table
8 chairs
2 refrigerators
watercooler
143: 2 rolling chairs
1 small table
2 tall phone racks
147: Met, shelves
148: Cabinets
149: Desk
2 visitor chairs
credenza
3 shelf bookcase
1 rolling desk chair
150: 3 shelf unit
1 visitor chair
1 chair credenza
2 bridge with drawer file
151: 3 shelf unit
2 visitor chairs
1 leather chair
3 drawer cabinet
cube: overhead with light
file file
152: 2 visitor chairs
3 shelving unit
credenza
1 chair desk with 2 drawer/file
153: 3 shelving unit
2 visitor chairs
1 chair
desk
bridge with 2 drawer file
154: 2 visitor chairs
3 shelving unit
desk with 2 drawer file
4 long file drawers
155: Credenza
1 chair
2 visitor chairs
3 shelving unit
desk with 2 drawer/file
156: Credenza
1 chair
2 visitor chairs
desk w/2 drawer file
3 shelving unit
157: 1 chair
1 visitor chair
2 long file drawer w/3 shelving unit
2 bridges with file drawer
158: Rectangular table
10 chairs
phone table
159: 5 wall shelf
160: U shaped config.
2 long file drawers
2 visitors chairs
1 chair
3 bridge with overhead file
161: Cabinets
162: 3 visitors chairs
1 leather chair desk with 2 file/drawer
163: 3 shelf unit
2 shelf unit
2 leather chairs
cube: overhead bin with light
2 file file
desk drawer
164: 5 shelving unit
2 long drawer file
1 chair
cube: overhead bin with light
2 file file
desk drawer
Board Room:
Long oval table
12 leather chairs
coffee table
long buffet table
fixed buffet with 6 cupboards
4 fixed cupboards above
wipe board
Outside 151 and 82:
2 tiered metal desk
rolling chair
Cubes
1-8: 3 overhead bins w/lights
drawer drawer file
2 long file drawer
chair
9-12: 3 overhead bins w/lights
drawer drawer file
file file
2 long file drawer
chair
13-14: 3 overhead bins w/lights
drawer drawer file
2 long file drawer
chair
15-16: 3 overhead bins w/lights
drawer drawer file
file file
2 long file drawer
chair
17-18: 3 overhead bins w/lights
drawer drawer file
2 long file drawer
chair
19-20: 3 overhead bins w/lights
drawer drawer file
file file
2 long file drawer
chair
21: 3 overhead bins w/light
drawer drawer file
3 file file
2 long file drawer
chair
22: 3 overhead bins w/lights
drawer drawer file
file file
2 long file drawer
chair
23-32: 3 overhead bins w/lights
drawer drawer file
2 long file drawer
chair
33-44: 2 overhead bins w/lights
drawer drawer file
file file
chair
45-46: NO DESKs but 2 overheads w/lights
Round table
8 chairs
47-64: 2 overhead bins w/lights
drawer drawer file
file file
chair
65-66: Overhead bin w/light
2 file file
chair
67: Overhead w/light
2 file file
chair
68: Overhead bin w/light
2 file file
chair
69-70: 2 overhead bins w/lights
drawer drawer file
file file
chair
71: 2 overhead bins w/light
2 file file
chair
72-75: 2 overhead bins w/lights
drawer drawer file
file file
chair
76: 2 overhead bins w/light
2 file file
chair
77-78: 2 overhead bins w/lights
drawer drawer file
file file
chair
79: 2 overhead bins w/lights
2 drawer drawer file
chair
Next to 79: 1 table
1 desk
2 chairs
wall shelves
Hallway outside 79:
2 desks
3 shelf unit
80: 6 tables
5 desks
7 chairs
5 drawer file
1 TV stand
82-84: 3 overhead bins w/lights
2 drawer drawer file
chair
LANDLORD CONSENT TO SUBLEASE
This Consent is entered into as of this 28th day, April, 1999 by and
among EOP-TRI-STATE INTERNATIONAL, L.L.C., a Delaware limited liability
company ("Landlord"), Alternative Resources Corporation, a Delaware
corporation ("Sublandlord") Success National Bank, Inc., an Illinois
corporation ("Subtenant").
RECITALS:
A. Landlord (as successor in interest to Beachon Properties L.P., as successor
in interest to New York Life Insurance Company), and landlord, and
Sublandlord, as tenant are parties to that certain lease agreement dated July
15, 1996, as amended by instrument dated September 23, 1996 (collectively, the
"Lease") pursuant to which Landlord has leased to Sublandlord certain premises
containing approximately 26,578 rentable square feet (the "Premises") know as
Suite No. 300 on the third floor of the building commonly known as Tri-State
International Office Center located at 100 Tri-State International Office
Center, Lincolnshire, Illinois (the "Building").
B. Sublandlord and Subtenant are about to enter into that certain sublease
agreement attached hereto as Exhibit A (the "Sublease Agreement") pursuant to
which Sublandlord has agreed to sublease to Subtenant certain premises
described as follows: Suite No. 300 containing approximately 26,578 rentable
square feet in the Building (the "Sublet Premises") constituting all of the
Premises.
C. Sublandlord and Subtenant have requested Landlord's consent to the Sublease
Agreement.
D. Landlord has agreed to give such consent upon the terms and conditions
contained in this Consent.
NOW THEREFORE, in consideration of the foregoing preambles which by this
reference are incorporated herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord hereby
consents to the Sublease Agreement, subject to the following terms and
conditions, all of which are hereby acknowledged and agreed to by Sublandlord
and Subtenant;
1. Sublease Agreement. Sublandlord and Subtenant hereby represent that a
true and complete copy of the Sublease Agreement is attached hereto and made a
part hereof of as Exhibit A.
2. Representations. Sublandlord hereby represents and warrants that
Sublandlord (i) has full power and authority to sublease the Sublet Premises
to Subtenant, (ii) has not transferred or conveyed its interest in the Lease
to any person or entity collaterally or otherwise, and (iii) has full power
and authority to enter into the Sublease Agreement and this Consent.
Subtenant hereby represents and warrants that Subtenant has full power and
authority to enter into the Sublease Agreement and this Consent.
3. Indemnity and Insurance. Subtenant hereby assumes, with respect to
Landlord, all of the indemnity and insurance obligations of the Sublandlord
under the Lease, provided that the foregoing shall not be construed as
relieving or releasing Sublandlord from any such obligations.
4. No Release. Nothing contained in the Sublease Agreement or this
Consent shall be construed as relieving or releasing Sublandlord from any of
its obligations under the Lease, it being expressly understood and agreed that
Sublandlord shall remain liable for such obligations notwithstanding anything
contained in the Sublease Agreement or this Consent or any subsequent
assignment(s), sublease(s) or Transfer(s) of the interest of the tenant under
the Lease. Sublandlord shall be responsible for the collection of all rent
due it from Subtenant, and for the performance of all the other terms and
conditions of the Sublease Agreement, it being understood that Landlord is not
a party to the Sublease Agreement and, notwithstanding anything to the
contrary contained in the Sublease Agreement, is not bound by any terms or
provisions contained in the Sublease Agreement and is not obligated to
Sublandlord or Subtenant for any of the duties and obligations contained
therein.
5. Administrative Fee. Upon Sublandlord's execution and delivery of this
Consent, Sublandlord shall pay to Landlord the sum of Five Hundred Dollars
($500.00) in consideration for Landlord's review of the Sublease Agreement and
the preparation and delivery of this Consent.
6. No Transfer. Subtenant shall not further sublease the Sublet
Premises, assign its interest as the Subtenant under the Sublease Agreement or
otherwise transfer its interest in the Sublet Premises or the Sublease
Agreement to any person or entity without the written consent of Landlord,
which Landlord may withhold in its sole discretion.
7. Lease. In no event shall the Sublease Agreement or this Consent be
construed as granting or conferring upon the Sublandlord or the Subtenant any
greater rights than those contained in the Lease nor shall there be any
diminution of the rights and privileges of the Landlord under the Lease.
Without limiting the scope of the preceding sentence, any construction or
alterations performed in or to the Sublet Premises shall be performed with
Landlord's prior written approval and in accordance with the terms and
conditions of the Lease.
8. Services. Sublandlord hereby authorizes Subtenant, as agent for
Sublandlord, to obtain services and materials for or related to the Sublet
Premises, and Sublandlord agrees to pay for such services and materials as
additional Rent under the Lease upon written demand from Landlord. However,
as a convenience to Sublandlord, Landlord may bill Subtenant directly for such
services and materials, or any portion thereof, in which event Subtenant shall
pay for the services and materials so billed upon written demand, provided
that such billing shall not relieve Sublandlord from its primary obligation to
pay for such services and materials.
9. Attornment. If the Lease or Sublandlord's right to possession
thereunder terminates for any reason prior to expiration of the Sublease
Agreement, Subtenant agrees, at the election of Landlord, to attorn to
Landlord upon the then executory terms and conditions of the Sublease
Agreement for the remainder of the term of the Sublease Agreement. If
Landlord does not so elect, the Sublease Agreement and all rights of Subtenant
in the Sublet Premises shall terminate upon the date of termination of the
Lease or Sublandlord's right to possession thereunder.
10. Sublandlord Notice Address. If Sublandlord is subleasing the entire
Premises or otherwise vacating the Premises, Sublandlord shall provide
Landlord with a new address for notices to Sublandlord under the Lease. If
Sublandlord fails to provide Landlord with written notice of such new address,
then Landlord may continue to send notices to Sublandlord at the address(es)
provided in, and in accordance with the terms of, the Lease.
11. Counterparts. This consent may be executed in counterparts and shall
constitute an agreement binding on all parties notwithstanding that all
parties are not signatories to the original or the same counterpart provided
that all parties are furnished a copy or copies thereof reflecting the
signature of all parties.
IN WITNESS WHEREOF, Landlord, Sublandlord and Subtenant have executed
this Consent as of the date set forth above.
WITNESS/ATTEST LANDLORD: EOP-TRI-STATE INTERNATIONAL, L.L.C.,
A Delaware limited liability company
______________________
By: EOP Operating Limited Partnership, a
Name (print): _____________ Delaware limited partnership, its sole
member
__________________________ By: Equity Office Properties Trust, a
Maryland
real estate investment trust, its managing
Name (print): _______________________ general partner
By: ____________________________
Name: ____________________________
Title: _____________________________
WITNESS/ATTEST SUBLANDLORD: Alternative Resources Corporation
A Delaware corporation
_________________________ By: _________________________________
Name (print): __________________ Name:
_______________________________
Title: _______________________________
Name (print): ___________________
WITNESS/ATTEST SUBTENANT: Success National Bank
a(n) Illinois corporation
___________________________
By: _______________________________
Name (print): ___________________ Name:
_____________________________
_______________________________ Title: _________________________
Name (print): ______________________
EXHIBIT A
SUBLEASE AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of April __, 1999, by and between Success National Bank, a national banking
organization ("Employer"), and Laurie K. Breitenstein ("Employee").
WHEREAS, Employer and Employee desire to enter into an employment
agreement governed by the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the provisions and undertakings set
forth herein, the parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT.
1.1 Employment. Employer hereby retains and employs, and Employee
accepts such retention and employment, to provide services hereunder as Senior
Vice President and General Counsel of the Employer and Success Bancshares, Inc.
("Bancshares"). Employee shall be accountable to Employer through its Chief
Executive Officer and Board of Directors.
1.2 Duties and Obligations. As General Counsel, Employee shall perform
all legal, executive and managerial duties incumbent upon such position.
Employee will devote her full time and attention and give her best efforts to
the performance of such legal, executive and managerial duties. It is intended
that Employee may have other business investments or directorships and engage
in civic, charitable and other such activities so long as such activities do
not interfere with her duties hereunder. Employer shall not relocate Employee
to a location more than 40 miles from the Employer's Lincolnshire location.
1.3 Proprietary Property. Employee acknowledges that in the course of
her employment with Employer, Employer will provide Employee with, or access
to, customer lists, memoranda, files, records, trade secrets and such other
proprietary information and property (collectively, the "Proprietary Property")
as is necessary or desirable to assist Employee in her duties. Employee
acknowledges that the Proprietary Property is the sole and exclusive property
of Employer and is not available to the public at large. Employee agrees that
she shall not, while in the employ of Employer or thereafter, communicate or
divulge to, or use for the benefit of herself or any other person, firm or
corporation, without the prior written consent of Employer, any information
relating to the Proprietary Property. Upon termination of Employee's
employment with Employer, Employee shall thereupon return all Proprietary
Property in her possession or control to Employer.
2. FINANCIAL ARRANGEMENTS.
2.1 Compensation. As Employee's compensation for services provided
hereunder, Employer shall do the following:
(a) Salary. Employer shall pay Employee, pursuant to Employer's payroll
schedule, an annual salary in the amount of One Hundred Twenty-Five Thousand
Dollars ($125,000) during the term of this Agreement, subject to annual review
and increase, but not decrease, by the Board of Directors of Employer.
(b) Signing Bonus. Employer shall pay Employee promptly following the
commencement of employment a signing bonus in the amount of Ten Thousand
Dollars ($10,000).
(c) Incentive Stock Option. Employer shall grant to Employee an
incentive stock option to purchase five thousand (5,000) shares of Employee's
Common Stock on the usual terms and conditions provided with respect to grants
pursuant to Employees Stock Option Plan. The price per share for such option
shall be at the closing price on the date of Employee's April meeting of its
Board of Directors.
(d) Bonus Plan. Employee shall participate in Employer's Executive
Compensation Plan and Stock Option Plan, as adopted by Employer's Board of
Directors and Shareholders.
(e) Expenses. Employee shall be reimbursed on a monthly basis for all
reasonable business expenses incurred by her in the performance of her duties
hereunder, to the extent such expenses are substantiated and are consistent
with the general policies of Employer relative to expense reimbursement.
(f) Benefits. In addition to any compensation provided under this
Agreement, Employee shall be entitled to participate in and receive benefits
under any and all 401(k), pension, profit sharing and other employee benefit
plans, stock purchase plan, insurance programs and other benefit programs which
are, from time to time, maintained by Employer for its senior executive
officers, in accordance with the provisions of such plans or programs as from
time to time in effect.
(g) Vacations. Employee shall be entitled to twenty (20) paid vacation
days.
(h) Automobile Allowance. Employee shall receive a non-accountable
annual automobile expense allowance of Six Thousand Dollars ($6,000), payable
in monthly installments. Such amounts are paid to reimburse in full Employee
for all costs and expenses relating to the use and maintenance of her
automobile used in performing Employee's duties.
3. TERM AND TERMINATION.
3.1 Term. This Agreement shall be effective for a period of three (3)
years from the date hereof.
3.2 Termination. This Agreement may also be terminated on the first to
occur of any of the following events:
(a) Agreement. Written agreement by both parties to terminate this
Agreement.
(b) Negligence; Misconduct. (i) substantial neglect of her duties
hereunder by Employee, (ii) gross misconduct or (iii) any intentional act by
Employee constituting fraud, misappropriation, embezzlement, dishonesty or
similar act. Prior to termination of this Agreement under Section 3.2(b)(i)
and 3.2(b)(ii) only, Employer shall be required to provide written notice to
Employee of the act or omission complained of, giving reasonably specific
details in describing necessary corrective action, and Employee shall be given
a period of twenty (20) days in which to cure or correct such act or omission.
If such act or omission is cured or corrected, the right of Employer to
terminate this Agreement under Sections 3.2(b)(i) and 3.2(b)(ii) shall be
extinguished.
(c) Breach. Excluding actions or events which may cause termination of
this Agreement as provided in Section 3.2(b), in the event of the breach of any
of the terms and conditions of this Agreement by either party and the failure
of the breaching party to correct such breach within ten (10) business days
after receipt of written notice of such breach by the breaching party, such
other party may terminate this Agreement immediately upon written notice of
such termination to the breaching party.
(d) Death or Disability. In the event Employee dies or becomes disabled,
to the extent that she is physically or materially incapacitated for more than
six (6) months in the aggregate over a period of twenty-four (24) months so
that Employee is unable to perform her essential duties and functions
hereunder, this Agreement may be terminated by Employer upon written notice to
Employee.
3.3 Effects of Termination. In the event of termination of this
Agreement pursuant to Sections 3.1, 3.2(a), 3.2(b) or 3.2(d) hereof or
termination by Employer pursuant to Section 3.2(c) hereof, Employer shall have
no continuing obligation to Employee hereunder. In the event of termination by
Employee pursuant to Section 3.2(c) hereof or termination by Employer for any
reason not set forth in Section 3.1 or 3.2 hereof, Employer shall continue to
pay Employee salary, bonus, if any is due, and benefits for the duration of the
term.
4. CHANGE OF CONTROL, SALE.
4.1 Payment Upon Termination. Upon a Change of Control or an
Announcement (as each is defined herein) of Employer or Bancshares, Employer
shall pay Employee the sum of one times Employee's base salary in one lump sum
payment or, if such payment is not permissible as a matter of law, then such
other maximum payment, not to exceed one times Employee's base salary, as is
lawful; provided, however, that such payment shall only be made if Employee is
an employee of the Employer immediately prior to the public announcement of a
definitive event which will cause such Change of Control ("Announcement") and
either: (a) within three hundred sixty (360) days following such Announcement,
Employee is terminated by Employer as an employee of the Employer for any
reason; or (b) within one hundred eighty (180) days following such Change of
Control, Employee terminates her employment with the Employer as a result of
her reasonable determination that she is not comfortable continuing to work for
Employer.
4.2 Change of Control Defined. For purposes of this Agreement, a "Change
of Control" shall be deemed to have occurred upon any of the following events:
(a) The consummation of any of the following transactions: (i) a merger,
recapitalization or other business combination of Employer or Bancshares with
or into another corporation pursuant to which Employer or Bancshares,
respectively, is not the continuing or surviving corporation or pursuant to
which shares of the Common Stock of Employer or Bancshares, as the case may be,
are converted into cash, securities of another corporation or other entity or
other property, other than a transaction in which the holders of such Common
Stock immediately prior to such transaction (including any preliminary or other
transaction relating to such transaction) will continue to own at least fifty
(50%) percent of the total voting power of the then-outstanding securities of
the surviving or continuing corporation immediately after such transaction or
(ii) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, of the assets of
Employer or Bancshares.
(b) A transaction in which any person (including any "person" as defined
in Section 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), corporation or other entity (other than Employer
or Bancshares, an affiliate thereof or any profit-sharing, employee ownership
or other employee benefit or similar plan sponsored by Employer or Bancshares
or any subsidiaries thereof, or any trustee of or fiduciary with respect to any
such plan when acting in such capacity, or any group comprised solely of such
entities): shall become, through purchase or otherwise, the "beneficial owner"
(as such term is defined in Rule 13d-3 under the Exchange Act), directly or
indirectly (in one transaction or a series of related transactions), of
securities of Employer or Bancshares, as the case may be, representing fifty
(50%) percent or more of the total voting power of the then-outstanding
securities of Employer or Bancshares, respectively, ordinarily (and apart from
the rights accruing under special circumstances) having the right to vote in
the election of the directors of either Employer or Bancshares.
(c) If, during any period of two (2) consecutive years, individuals who
at the beginning of such period constituted the entire board of directors
("Board") and any new director whose election by the Board or nomination for
election by the stockholders of Employer or Bancshares, as the case may be, was
approved by a vote of eighty (80%) percent of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election by the stockholders was previously so
approved, cease for any reason to constitute a majority thereof.
4.3 Survival. The provisions of this Section 4 shall survive the
expiration of this Agreement until such time as Employee shall no longer be an
employee of the Employer.
5. PAYMENT BY HOLDING COMPANY
In view of Employee's contribution to Bancshares, any compensation or
benefit provided for herein to Employee may, upon the approval of both the
Boards of Directors of Employer and Bancshares, be paid by Bancshares.
6. NON-SOLICITATION/NON-COMPETITION
6.1 Non-Solicitation. Employee shall not, during the term of Employee's
employment with Employer and for a period of six (6) months after the
termination or expiration thereof, directly or indirectly, hire, offer to hire,
divert, entice away, solicit or in any other manner persuade or attempt to
persuade ("Solicitation") any person who is, or was, at any time within the
twelve (12) months prior to such Solicitation, an officer, director, employee,
agent, lessor, lessee, licensor, licensee, customer, prospective customer or
supplier of Employer or Bancshares to discontinue, cease or alter his, her or
its relationship with Employer or Bancshares.
6.2 Non-Competition. Employee shall not, during the term of Employee's
employment with Employer and for a period of six (6) months after the
termination or expiration thereof, except in the event that (a) such
termination occurs upon a Change of Control and otherwise as set forth in
Section 4.1 of this Agreement or (b) Employee is terminated by Employer as an
employee of the Employer for any reason other than one described in Sections
3.2(a), 3.2(b)(i), (ii) or (iii) or 3.2(c), directly or indirectly, with
respect to any business or activity whose principal place of business is
located within ten (10) miles of the three (3) largest then-existing offices of
Employer: (i) engage in any business or activity that competes with the
business of Employer or Bancshares; (ii) enter the employ of any person engaged
in any business or activity that competes with the business of Employer or
Bancshares other than as a lawyer, or render any services to any person for use
in competing with the business of Employer or Bancshares; or (iii) have an
interest in any person engaged in any business or activity that competes with
the business of Employer or Bancshares, directly or indirectly, in any
capacity, including, without limitation, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee, creditor
or consultant or any other relationship or capacity. Anything to the contrary
notwithstanding, the Employer and Employee agree that nothing set forth in this
Section 6 shall prohibit or limit Employee's future practice or retention as an
attorney.
6.3 Remedies Upon Breach. Employee acknowledges and agrees that (a)
Employer shall be irreparably injured in the event of a breach by Employee of
any of Employee's obligations under this Section 6.3; (b) monetary damages
shall not be an adequate remedy for any such breach; (c) Employer shall be
entitled to injunctive relief, in addition to any other remedy which it may
have, in the event of any such breach; and (d) the existence of any claims
which Employee may have against Employer, whether under this Agreement or
otherwise, shall not be a defense to the enforcement by Employer of any of its
rights under this Section 6.3.
6.4 Enforcement. The covenants and obligations of Employee contained in
this Section 6 shall be in addition to, and not in lieu of, any covenants and
obligations which Employee may have with respect to the subject matter hereof,
whether by contract, as a matter of law or otherwise, and such covenants and
obligations, and their enforceability, shall survive the termination of this
Agreement.
6.5 Survival. The provisions of this Section 6 shall survive until the
later of (a) six (6) months following the expiration of this Agreement and (b)
six (6) months following the termination of Employee's employment with
Employer.
7. MISCELLANEOUS
7.1 Assignment. This Agreement and all rights and benefits hereunder are
personal to Employee and to Employer. Accordingly, no rights, interests or
benefits hereunder shall be sold, transferred or assigned without the prior
written consent of the other party.
7.2 Employment Status of Employee. It is expressly acknowledged that
Employee, in the performance of her services hereunder, is an employee of
Employer. Accordingly, Employer shall deduct from the compensation paid to
Employee any sums for income tax, social security or any other withholding
taxes as are required by law.
7.3 Extension of Employment. Employer and Employee agree to discuss in
good faith to continuation of Employee's employment in at a reasonable time
prior or six (6) months before the expiration of the term as set forth in
paragraph 3.1 hereof.
7.4 Changes or Modifications. No change or modification of this
Agreement shall be valid unless the same shall be in writing signed by Employer
and Employee. No waiver of any provision hereof shall be valid unless in
writing and signed by the party against whom charged.
7.5 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the matters set forth herein. This
Agreement supersedes any and all other agreements between the parties with
respect to the subject matter.
7.6 Notices. Notice required herein shall be effective when delivered in
person or sent by United States Certified Mail, postage prepaid and addressed
to or such other address as notified:
Employer: Board of Directors
Success National Bank
One Marriott Drive
Lincolnshire, Illinois 60069-3703
Employee: Laurie K. Breitenstein
916 West Schubert
Chicago, Illinois 60614
7.7 Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the internal laws of Illinois.
7.8 Separability. The inability or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
7.9 Waiver of Breach. The waiver by either party of a breach or
violation of any provision hereof shall not operate as a waiver of any
subsequent breach of the same or any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the last date written below.
EMPLOYER:
SUCCESS NATIONAL BANK
By:____________________________
Wilbur G. Meinen, Chairman
EMPLOYEE:
_______________________________
Laurie K. Breitenstein
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of the 28th day of May,
1999 by and among Success Bancshares, Inc., a Delaware corporation (the
"Company"), and Ronald W. Tragasz ("Tragasz").
RECITALS:
A. On January 28, 1993, the Company granted to Tragasz an option (the
"1993 Option") to purchase 1,000 shares of the Company's Common Stock (the
"1993 Option Shares") pursuant to a Stock Option Agreement, dated January
28,1993 (the "1993 Option Agreement").
B. Pursuant to the terms of the 1993 Option Agreement, the number of
1993 Option Shares underlying the 1993 Option increased to 1,700 upon the
consummation of a stock split effected with respect to the Company's Common
Stock in 1997.
C. Tragasz has agreed to terminate the 1993 Option Agreement in
consideration of the Company's issuance to Tragasz of a newly issued incentive
stock option to purchase 3,000 shares of the Company's Common Stock (the "1999
Option").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Termination. The Company and Tragasz hereby acknowledge and agree
that the 1993 Option Agreement and the 1993 Option is hereby terminated, is
null and void and is of no further force and effect. Tragasz hereby releases
the Company from any obligations and liabilities the Company has had, now has
or hereafter may, can or shall have in connection with the 1993 Option
Agreement and the 1993 Option.
2. 1999 Option. The Company hereby agrees to issue to Tragasz, as of
the date hereof, the 1999 Option.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SUCCESS BANCSHARES, INC.
By:_____________________________
Wilbur G. Meinen
President and Chief Executive Officer
_____________________________
Ronald W. Tragasz
SUCCESS BANCSHARES, INC.
STOCK OPTION AGREEMENT (NON-TRANSFERABLE) Success Bancshares, Inc., a
Delaware corporation (the "Company"), hereby grants to Ronald W. Tragasz (the
"Optionee") an option to purchase a total of 3,000 shares of Common Stock (the
"Shares") of the Company, at the price set forth herein, and in all respects
subject to the terms and provisions of the Company's 1995 Stock Option Plan
(the "Plan") applicable to stock options which terms and provisions are hereby
incorporated by reference herein. Unless otherwise defined or the context
herein otherwise requires, the capitalized terms used herein shall have the
same meanings ascribed to them in the Plan.
1 NATURE OF THE OPTION. This Option is intended to be, to the extent
permitted by law, an incentive stock option within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code").
2. DATE OF GRANT; TERM OF OPTION. This Option is granted as of April 28,
1999, and it may not be exercised later than April 28, 2009.
3. OPTION EXERCISE PRICE. The Option exercise price is $10.125 per
Share, which price is not less than the fair market value thereof on the date
this Option was granted.
4. EXERCISE OF OPTION. This Option shall be exercisable during its term
only in accordance with the terms and provisions of the Plan and this Option as
follows:
(a) RIGHT TO EXERCISE. The total number of Shares subject to this Option
is 3,000. Subject to the foregoing and the limitations contained herein and in
the Plan, this Option shall vest and be exercisable in full on the date hereof.
(b) METHOD OF EXERCISE. This Option shall be exercisable by written
notice which shall state the election to exercise this Option, the number of
Shares in respect to which this Option is being exercised, and such other
representations and agreements as to the Optionee's investment intent with
respect to such Shares as may be required by the Company hereunder or pursuant
to the provisions of the Plan. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Secretary
of the Company or such other person as may be designated by the Company. The
written notice shall be accompanied by payment of the exercise price. The
exercise price may be paid: (i) in cash; (ii) by check; (iii) by delivering
certificates of other shares of Common Stock of the Company; (iv) by
transferring shares of Common Stock of the Company to the Company's transfer
agent for delivery to the Company provided that the written notice of exercise
is accompanied by a written acknowledgment by the Optionee that the Optionee
has instructed her broker dealer to transfer such shares and such transfer is
confirmed by a letter from such broker dealer acknowledging that the Optionee
has directed such broker dealer to transfer such shares; (v) by Optionee
simultaneously exercising this Option and selling the Shares thereby acquired
pursuant to a brokerage or similar arrangement approved in advance by the Board
(which approval shall not be unreasonably withheld) and to use the proceeds
from such sale to pay the exercise price and any federal, state and local taxes
required to be withheld as a result of such exercise; or (vi) by any other
method of payment approved by the Company's Board of Directors. For purposes
of clauses (iii) and (iv), the value of the shares of Common Stock of the
Company delivered, or to be delivered, as payment of the exercise price shall
be the closing price per share of the Company's Common Stock on the last
business day prior to the date the written notice is actually received and
acknowledged as received by the Company. Upon receipt of payment, the Company
shall deliver to Optionee or the person exercising this Option for Optionee, an
appropriate certificate or certificates for fully paid nonassessable Shares.
For purposes of clause (iv), should any Optionee fail to have the number of
shares required to pay the exercise price delivered to the Company's transfer
agent within 90 days, this Option, with respect to the number of shares stated
in the written notice, will terminate and be deemed to be forfeited by the
Optionee. The certificate or certificates for the Shares as to which the Option
shall be exercised shall be registered in the name of the Optionee and shall be
legended as set forth in the Plan and/or as required under applicable law. This
Option may not be exercised for a fraction of a share.
(c) RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of the Shares upon such exercise would constitute a violation of any
applicable federal or state securities laws or other laws or regulations. As a
condition to the exercise of this Option, the Company may require the Optionee
to make such representations and warranties to the Company as may be required
by any applicable law or regulation.
(d) NO SHAREHOLDER RIGHTS BEFORE EXERCISE AND ISSUANCE. No rights as a
shareholder shall exist with respect to the Shares subject to the Option as a
result of the grant of the Option. Such rights shall exist only after issuance
of a stock certificate in accordance with Article V, Section J of the Plan
following the exercise of the Option as provided in this Agreement and the
Plan.
(e) TERMINATION OF EMPLOYMENT. In the event that the Optionee ceases to
be an employee of the Company or an Affiliate, the exercisability of the Option
is subject to the provisions of Article V, Section G of the Plan.
5. INVESTMENT REPRESENTATIONS. In connection with the acquisition of
this Option, the Optionee represents and warrants as follows:
(a) The Optionee is acquiring this Option, and upon exercise of this
Option, he will be acquiring the Shares, for investment for his own account,
not as a nominee or agent, and not with a view to, or for resale in connection
with, any distribution thereof.
(b) The Optionee has a preexisting business or personal relationship with
the Company or one of its directors, officers or controlling persons and by
reason of his business or financial experience, has, and could be reasonably
assumed to have, the capacity to evaluate the merits and risks of purchasing
Common Stock of the Company and to make an informed investment decision with
respect thereto and to protect Optionee's interests in connection with the
acquisition of this Option and the Shares.
6. WITHHOLDING. The Company reserves the right to withhold, in
accordance with any applicable laws, from any compensation or other
consideration payable to the Optionee, any taxes required to be withheld by
federal, state or local law as a result of the grant or exercise of this Option
or the sale or other disposition of the Shares issued upon exercise of this
Option; and, if such compensation or consideration is insufficient, the Company
may require Optionee to pay to the Company an amount sufficient to cover such
withholding tax liability.
7. NONTRANSFERABILITY OF OPTION. This Option may not be transferred,
assigned, pledged or hypothecated or otherwise disposed of in any way (whether
by operation of law or otherwise) and is not subject to execution, attachment
or similar process. Any attempted transfer, assignment, pledge, hypothecation
or other disposition of this Option or of any rights granted hereunder, or the
levy of any attachment or similar process upon this Option or such rights, will
be null and void. This Option may be exercised during the lifetime of the
Optionee only by such Optionee or his legal guardian. Subject to the foregoing
and the terms of the Plan, the terms of this Option shall be binding upon the
executors, administrators, heirs, successors and permitted assigns of the
Optionee.
8. CONTINUATION OF EMPLOYMENT. Neither the Plan nor this Option shall
(a) confer upon the Optionee any right whatsoever to continue in the employment
of the Company or any Affiliate or (b) limit or restrict in any respect the
rights of the Company, which rights are hereby expressly reserved, to terminate
the Optionee's employment and compensation at any time for any reason
whatsoever, with or without cause, in the Company's sole discretion and with or
without notice.
9. THE PLAN. This Option is subject to, and the Company and the Optionee
agree to be bound by, all the terms and conditions of the Company's Plan as
such Plan may be amended from time to time in accordance with the terms
thereof, provided that no such amendment shall deprive the Optionee, without
his consent, of this Option or any rights hereunder. Pursuant to the Plan, the
Board is authorized to adopt rules and regulations not inconsistent with the
Plan as it shall deem appropriate and proper. A copy of the Plan in its present
form is available for inspection at the Company's principal office during
business hours by the Optionee or the persons entitled to exercise this Option.
10. ENTIRE AGREEMENT. The terms of this Agreement and the Plan
constitute the entire agreement between the Company and the Optionee with
respect to the subject matter hereof and supersede any and all previous
agreements between the Company and the Optionee.
SUCCESS BANCSHARES, INC.,
a Delaware corporation
Dated as of: April 28, 1999 By:__________________________________
Name: Wilbur G. Meinen
Title: President and Chief Executive
Officer
The Optionee hereby acknowledges receipt of a copy of the Plan, a copy of which
is attached hereto, and represents that he has read and is familiar with the
terms and provisions thereof and of this Agreement, and hereby accepts this
Option subject to all of the terms and provisions thereof and of this
Agreement. Optionee hereby agrees to accept as binding, conclusive and final
all decisions or interpretations of the Board upon any questions arising under
the Plan.
Dated as of: April 28, 1999 _______________________________________
Signature of Optionee
c/o Success Bancshares, Inc,
One Marriott Drive
___________________________________
Address
Lincolnshire Illinois 60069
City State Zip Code
THIS OPTION AND THE SECURITIES WHICH MAY BE PURCHASED UPON EXECUTION OF
THIS OPTION HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE, TRANSFER OR
DISTRIBUTION THEREOF. NO SUCH SALE, TRANSFER OR DISTRIBUTION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
