<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For period ended September 30, 1996
[ ] 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 0-15638
NORTH STAR UNIVERSAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-0498850
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6479 City West Parkway
Eden Prairie, Minnesota 55344
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (612) 941-3200
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 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______
At October 31, 1996, 9,913,000 shares of common stock of the registrant were
outstanding.
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
North Star Universal, Inc. and Subsidiaries
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited, in thousands, except share data)
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
-----------------------------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 8,068 $ 3,369
Accounts receivable, net 9,704 8,784
Inventories 6,629 6,631
Prepaid expenses and other current assets 773 1,306
----------------------------------
Total current assets 25,174 20,090
Property and equipment, net 1,572 1,453
Investment in unconsolidated subsidiaries 83,468 83,542
Goodwill, net 4,841 4,960
Other assets 26 189
----------------------------------
$ 115,081 $ 110,234
==================================
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Notes payable to bank $ 1,115 $ 937
Current portion of long-term debt 11,624 13,161
Accounts payable and accrued expenses 11,351 10,401
----------------------------------
Total current liabilities 24,090 24,499
Long-term debt, net of current maturities 22,310 29,319
Deferred income taxes 26,725 21,935
Shareholders' Equity
Common stock, $.25 par value
100,000,000 shares authorized,
issued and outstanding 9,913,000
shares in 1996 and 9,448,000 in 1995 2,478 2,362
Additional paid-in-capital 31,297 31,105
Retained earnings 8,181 1,014
----------------------------------
Total shareholders' equity 41,956 34,481
----------------------------------
$ 115,081 $ 110,234
==================================
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
North Star Universal, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited, in thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
-----------------------------------------------
1996 1995 1996 1995
-----------------------------------------------
<S> <C> <C> <C> <C>
Revenues $ 17,358 $ 14,339 $ 49,151 $ 40,593
Operating and product costs 12,644 10,409 36,147 29,075
-----------------------------------------------
Gross profit 4,714 3,930 13,004 11,518
Selling, general,
and administrative expenses 4,471 3,841 12,744 11,065
-----------------------------------------------
Operating income (loss) 243 89 260 453
Interest expense, net (805) (1,045) (2,573) (3,138)
Investment income - - 7,713 -
-----------------------------------------------
Income (loss) before income taxes
and equity in earnings of
unconsolidated subsidiaries (562) (956) 5,400 (2,685)
Income tax provision (benefit) (200) (325) 2,240 (860)
-----------------------------------------------
Income (loss) before equity in
earnings of unconsolidated
subsidiaries (362) (631) 3,160 (1,825)
Equity in earnings of
unconsolidated subsidiaries 631 1,353 2,750 3,885
-----------------------------------------------
Income from continuing
operations 269 722 5,910 2,060
Discontinued operations
Loss from operations, net of
income tax benefits - - - (934)
Gain (loss) on disposition,
net of income taxes - - 1,257 (2,091)
-----------------------------------------------
- - 1,257 (3,025)
-----------------------------------------------
Net income (loss) $ 269 $ 722 $ 7,167 $ (965)
===============================================
Income (loss) per share
Continuing operations $ 0.03 $ 0.07 $ 0.59 $ 0.22
Discontinued operations 0.00 0.00 0.13 (0.32)
-----------------------------------------------
Net income (loss) $ 0.03 $ 0.07 $ 0.72 $ (0.10)
===============================================
Weighted average shares
outstanding 9,939,800 9,838,400 9,921,900 9,438,000
===============================================
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
North Star Universal, Inc. and Subsidiaries
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
Nine Months Ended September 30, (Unaudited)
(In thousands)
<TABLE>
<CAPTION>
1996 1995
----------------------------------
<S> <C> <C>
Net cash used in operating activities $ (1,951) $ (3,402)
Cash flows from investing activities
Capital expenditures (693) (458)
Proceeds from sale of CorVel stock 11,052 -
Proceeds from divestiture 3,196 2,500
Other (77) (221)
----------------------------------
Net cash provided by investing activities 13,478 1,821
----------------------------------
Cash flow from financing activities
Issuance of common stock 437 -
Proceeds from long-term debt 1,345 45,958
Payments on long-term debt (9,891) (46,465)
Proceeds from notes payable 50,238 -
Payments on notes payable (50,060) -
Cash dividends received from Michael Foods 1,103 1,103
----------------------------------
Net cash used in financing activities (6,828) 596
----------------------------------
Net increase (decrease) in cash
and cash equivalents 4,699 (985)
Cash and cash equivalents
at beginning of period 3,369 5,102
----------------------------------
Cash and cash equivalents
at end of period $ 8,068 $ 4,117
==================================
</TABLE>
See accompanying notes to condensed consolidated financial statements.
<PAGE>
North Star Universal, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. Basis of Presentation --
The accompanying unaudited condensed consolidated financial statements have
been prepared by North Star Universal, Inc. ("North Star" or the "Company"),
without audit, pursuant to the rules and regulations of the Securities and
Exchange Commission. The information furnished in the condensed consolidated
financial statements includes normal recurring adjustments which are, in the
opinion of management, necessary for a fair presentation of such financial
statements. Certain information and footnote disclosure normally included in
financial statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations. Although the Company believes that the disclosures are adequate to
make the information presented not misleading, it is suggested that these
condensed consolidated financial statements be read in conjunction with the
financial statements and the notes thereto included in the Company's latest
annual report on Form 10-K.
Results for the three and nine months ended September 30 may not
necessarily be indicative of the results to be expected for the full year.
2. Reorganization Agreement --
On December 21, 1995, the Company entered into a reorganization agreement
with Michael Foods which the parties amended in September 1996 in connection
with Michael Foods' agreement to acquire Papetti's Hygrade Egg Products, Inc.
The effect of this agreement is to distribute the shares of Michael Foods
common stock owned by North Star directly to shareholders of North Star and
reposition North Star's continuing operations and investments into a new holding
company, ENStar Inc. ("ENStar"). Prior to the reorganization, the Company will
transfer to ENStar, its wholly owned subsidiary Americable, which owns
Transition, and its equity investment in CorVel. The shares of ENStar will be
declared payable in a tax free dividend to North Star's shareholders of record
prior to the effective date of the reorganization and be distributed immediately
following the reorganization.
Under the terms of the agreement, North Star will transfer indebtedness,
net of cash and cash equivalents, in the range of $15 million to $29 million to
Michael Foods, together with Michael Foods shares approximately equal to the
debt transferred. The actual number of Michael Foods shares in the exchange
will be based on an average market price for a period of time prior to the
closing date, less a discount ranging from 6% to 9% depending on the actual
amount of debt transferred. At the effective time of the reorganization, North
Star will effect a reverse stock split which reduces its shares outstanding to
the same number of shares it owns in Michael Foods reduced by the shares
redeemed in the transfer of the indebtedness. In the reorganization, each
outstanding share of Michael Foods common stock will be exchanged for one share
of North Star common stock. Following the reorganization, North Star will be
renamed Michael Foods, Inc.
The reorganization is subject to the receipt of a favorable ruling from the
Internal Revenue Service that the distributions are tax free to the shareholders
of Michael Foods and the Company, the approval of each company's shareholders
and other closing conditions. The agreement can be terminated by either party
under various circumstances including if Michael Foods' stock price is outside a
predetermined price range.
<PAGE>
North Star Universal, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
3. Discontinued Operations --
On April 26, 1996, the Company completed the sale of Eagle Engineering &
Manufacturing, Inc. ("Eagle") for approximately $3.7 million of cash and notes
The gain on disposition was approximately $1.3 million, net of an income tax
provision of $804,000. Eagle has been classified within net assets held for
sale.
On May 5, 1995, the Company completed the sale of its shares in Dalworth
Holdings, Inc. and subsidiaries, including C.E. Services Inc. (collectively
"C.E. Services") to Amdahl Corporation for $2.5 million cash. The loss on
disposition was approximately $2.1 million, net of an income tax benefit of
approximately $1.3 million. The accompanying condensed consolidated statements
of operations for 1995 have been restated to reflect C.E. Services as
discontinued operations. The following are summarized results of operations for
C.E. Services through the date of sale (in thousands):
<TABLE>
<CAPTION>
<S> <C>
Revenues $ 6,442
Gross profit 1,233
Pretax loss (1,414)
Income tax benefit 480
Loss from operations (934)
</TABLE>
4. Investment in Unconsolidated Subsidiaries and Investment Income --
The Company's unconsolidated subsidiaries consist of its investments in
Michael Foods, Inc. ("Michael Foods") and CorVel Corporation ("CorVel"). CorVel
has a fiscal year ended March 31. The following is summarized balance sheet and
income statement information of the Company's unconsolidated subsidiaries as of,
and for the nine month period ended September 30, 1996 (in thousands):
<TABLE>
<CAPTION>
Michael Foods CorVel
----------------------------------
<S> <C> <C>
Current assets $ 114,372 $ 44,898
Noncurrent assets 255,697 17,711
Current liabilities 112,092 9,095
Noncurrent liabilities 72,668 2,880
Revenues 455,478 84,826
Gross profit 52,211 15,487
Net income 7,880 5,712
</TABLE>
In January 1996, the Company sold 350,000 shares of CorVel for
approximately $11 million, resulting in a pre-tax gain of approximately $7.7
million.
<PAGE>
North Star Universal, Inc. and Subsidiaries
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Continued)
5. Inventories --
Inventories are stated at the lower of average cost (first-in, first-out)
or market. Inventories consist of the following (in thousands):
<TABLE>
<CAPTION>
September 30, December 31,
1996 1995
---------------------------------
<S> <C> <C>
Finished goods $ 4,813 $ 4,092
Purchased parts and supplies 1,816 2,539
---------------------------------
$ 6,629 $ 6,631
=================================
</TABLE>
6. Earnings Per Share --
Earnings per share are based on the average number of shares outstanding
during the period after giving effect to the assumed exercise of outstanding
stock options, except where the effects are antidilutive.
7. Income Taxes --
Deferred income taxes arise from temporary differences between financial
and tax reporting. To the extent the Company's financial reporting basis in its
investment in unconsolidated subsidiaries exceeds its tax basis, and is not
expected to be realized in a tax-free manner, the Company records a deferred tax
liability. At September 30, 1996, the deferred tax liability includes a
cumulative tax effect of approximately $24.8 million and $4.8 million for the
differences in the financial reporting and tax basis of the Company's
investments in Michael Foods and CorVel, respectively.
As described in Note 2, the Company has entered into a reorganization
agreement with Michael Foods under which it may realize its investment in
Michael Foods in a tax-free manner. The agreement can be terminated by either
party under various circumstances. Accordingly, the Company has continued to
carry a deferred tax liability related to its investment in Michael Foods.
8. Reclassifications --
Certain 1995 amounts have been reclassified to conform with the financial
statement presentation used in 1996. Such reclassifications had no impact on
previously reported retained earnings or net income.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
North Star Universal, Inc. ("North Star" or "the Company") is a holding
company. The Company's three key holdings consist of Michael Foods, Inc.
("Michael Foods"), CorVel Corporation ("CorVel") and its computer businesses.
At September 30, 1996, the Company owned a 38% interest in Michael Foods and a
26% interest in CorVel. The common stock of each of Michael Foods and
CorVel is included on the NASDAQ National Market System under the symbols MIKL
and CRVL. The Company's investments in Michael Foods and CorVel are accounted
for as unconsolidated subsidiaries using the equity method of accounting.
The Company's continuing operations consist of Americable, Inc.
("Americable") and Transition Networks, Inc., formerly Transition Engineering
("Transition"). Americable is a provider of connectivity and networking
products and services. Transition designs, manufactures and markets
connectivity devices used in local area network ("LAN") applications.
Americable has historically been a distributor of connectivity and
networking products. As part of its business strategy, Americable has recently
focused on increasing its level of service revenues which are generally more
profitable. Service revenue is primarily derived from network integration
services such as network management, maintenance, design and implementation.
To achieve this strategy, Americable intends to continue to make internal
investments in additional sales, engineering and technical personnel in existing
and new geographic locations in order to enhance its ability to satisfy the
changing technology requirements of its customers. Americable expects that
increased operating expenses resulting from these investments will reduce its
profitability over the next 12 months to the extent it is unable to maintain
its gross margins or continued sales growth.
Historically, in excess of 90% of Transition's revenues have been
derived from the sale of its terminal and basic LAN products. These products
have life cycles of 18 to 36 months and are generally sold based on price,
availability and functionality. More recently, Transition has focused its
product development and marketing efforts on expanding its advanced LAN products
in an effort to increase sales with existing customers and participate in
broader market opportunities. Due to the increasing design and manufacturing
complexities associated with the integration of technologies, the development
of advanced LAN products require a more substantial investment in engineering
personnel and related costs. As a result, Transition's future operations are
highly dependent on its ability to introduce advanced LAN products on a timely
basis that meet customers' demands.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following are unaudited summarized operating results for each of the
Company's continuing operations for the three and nine months ended September 30
(in thousands).
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------------------------
1996 1995 1996 1995
---------------------------------------------
<S> <C> <C> <C> <C>
Revenues
Americable $ 13,301 $ 11,281 $ 38,221 $ 31,050
Transition Networks 4,523 3,567 12,166 10,656
Eliminations (466) (509) (1,236) (1,113)
---------------------------------------------
$ 17,358 $ 14,339 $ 49,151 $ 40,593
=============================================
Gross Profit
Americable $ 3,010 $ 2,553 $ 8,494 $ 7,551
Transition Networks 1,704 1,377 4,510 3,967
---------------------------------------------
$ 4,714 $ 3,930 $ 13,004 $ 11,518
=============================================
Selling, General and Administrative Expenses
Americable $ 2,537 $ 2,267 $ 7,510 $ 6,658
Transition Networks 1,605 1,176 4,261 3,328
Corporate 329 398 973 1,079
---------------------------------------------
$ 4,471 $ 3,841 $ 12,744 $ 11,065
=============================================
Operating Income (Loss)
Americable $ 473 $ 286 $ 984 $ 893
Transition Networks 99 201 249 639
Corporate (329) (398) (973) (1,079)
---------------------------------------------
$ 243 $ 89 $ 260 $ 453
=============================================
</TABLE>
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1996 vs. THREE MONTHS ENDED SEPTEMBER 30, 1995
Consolidated revenues increased $3 million or 21%, to $17.4 million from
$14.3 million in 1995.
Revenues at Americable increased approximately $2 million or 18%, to
$13.3 million. Higher customer demand resulted in increased sales of networking
products of approximately $1.8 million and cable assemblies of approximately
$275,000 along with increased revenues from installation and services of
approximately $450,000. For the quarter, sales of networking products and
revenues from services and installation were approximately $6.8 million or 51%,
and $1.2 million or 9%, of Americable's revenues, respectively. Offsetting
these increases was approximately $500,000 of reduced volume of bulk cable and
other connectivity products to contractors and resellers.
Revenues at Transition increased approximately $956,000 or 26.8%, to $4.5
million. Sales of Transition's advanced LAN products increased approximately
$249,000, or 78%, to $567,000, reflecting the continued demand for new products
and product enhancements introduced during 1995 and 1996. Sales from new
product introductions and enhancements during 1996 accounted for approximately
28% of net sales for the quarter ended September 30, 1996 versus 32% for the
comparable period in 1995. Sales of basic LAN and terminal products increased
approximately 22% to $4.0 million. Sales to domestic customers increased
approximately $719,000 or 31%, to $3.0 million, which reflects higher demand
from its existing base of distributors and resellers. Sales to international
customers increased approximately $237,000 or 19%, to $1.5 million, which was
primarily a result of the addition of new distributors.
Consolidated gross profit, as a percent of revenues, decreased to 27.2% in
1996 as compared to 27.4% in 1995. Decreased margins at Transition were a result
of lower pricing on certain product lines due to increased competition. Margins
at Americable were relatively unchanged between periods.
The Company's selling, general and administrative expenses increased
$630,000 or 16.4%, to $4.5 million from $3.8 million in 1995.
Operating expenses at Americable increased approximately $270,000 or 12%
for the period, which reflects approximately $176,000 of increased selling
expenses primarily attributable to higher sales commissions and the addition of
new sales personnel along with and costs related to its new catalog and employee
sales training. In addition, this increase reflects approximately $121,000 of
higher engineering expense due to the addition of technical and engineering
personnel. Overall, general and administrative expenses at Americable decreased
slightly between years.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
Transition had increased operating expenses of approximately $429,000 or
36%, which reflects increased engineering expenses of approximately $160,000
due to the addition of engineering personnel associated with new product
development. In addition, selling expenses increased approximately $249,000
due primarily to the addition of new sales and marketing personnel and higher
expenses for advertising, trade shows, and other marketing-related programs.
Net interest expense decreased $240,000 or 23% to $805,000 from $1,045,000
in 1995 due primarily to lower outstanding levels of debentures between years
and increased interest income resulting from a higher level of cash and cash
equivalents.
The income tax benefits of $200,000 in 1996 and $325,000 in 1995 relate to
the elimination of deferred tax liabilities that will reverse as net operating
losses available for carryforward are utilized in future periods. To the
extent loss carryforwards are realized in the future, deferred taxes will be
reinstated.
Equity in earnings of unconsolidated subsidiaries decreased $722,000 to
$631,000 from $1,353,000 in the previous year. This includes decreases of
$663,000 and $59,000 in the equity in earnings of Michael Foods and CorVel
Corporation, respectively, which is a result of lower earnings at Michael Foods
and the Company's lower ownership interest in CorVel. Further information with
respect to the results of operations of Michael Foods and CorVel is contained in
the Management's Discussion and Analysis of Financial Condition and Results of
Operation section of their respective quarterly reports on Form 10-Q as filed
with the Securities and Exchange Commission.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
RESULTS OF OPERATIONS (Continued)
NINE MONTHS ENDED SEPTEMBER 30, 1996 vs. NINE MONTHS ENDED SEPTEMBER 30, 1995
Consolidated revenues increased $8.5 million, or 21%, to $49.1 million
from $40.6 million in 1995.
Revenues at Americable increased approximately $7.2 million, or 23%, to
$38.2 million. Increased sales of networking products of approximately $8.0
million and increased revenues from installation and services of approximately
$900,000, both due primarily to higher demand, contributed to the increase in
sales at Americable. Included in these amounts is approximately $1.9 million of
higher sales of networking products to one customer, which is not expected to
continue during the remainder of the year and throughout 1997. For the period,
sales of networking products and revenues from services and installation were
approximately $20.1 million, or 53%, and $2.9 million, or 8%, of Americable's
revenues, respectively. Sales of cable and other connectivity products
decreased approximately $1.5 million, due primarily to lower volume to
contractors and resellers and lower demand for certain types of bulk cable due
to increased market supply of such product during the first three quarters of
1996. In addition, sales of cable assemblies decreased approximately $200,000,
due to lower demand experienced between periods.
Revenues at Transition increased approximately $1.5 million, or 14.2%, to
$12.2 million. Sales of Transition's advanced LAN products increased
approximately $540,000, or 52% to $1.6 million, reflecting additional revenues
from new products and product enhancements introduced during 1995 and 1996.
Sales from new product introductions and enhancements accounted for
approximately 13% of net sales for the nine months ended September 30, 1996,
versus 41% for the comparable period in 1995. Sales of basic LAN and terminal
products increased approximately $970,000, or 10%, to $10.6 million. Sales to
domestic customers increased approximately $1.1 million, or 16%, to $7.9
million, which primarily reflects higher demand for Transition's products.
Sales to international customers increased approximately $400,000, or 10%, to
$4.3 million, which was primarily a result of the addition of new customers.
Transition's ability to maintain its present level of sales and its continued
sales growth is highly dependent upon its ability to offer new products that
meet customers' demands in a rapidly changing market, particularly in light of
the relatively short life cycle of its products.
Consolidated gross profit, as a percent of revenues, decreased to 26.5%
in 1996 as compared to 28.4% in 1995. The reduced margins at Americable are
primarily attributable to a higher volume of lower margin networking products
and lower pricing on cable due to competition and overall higher market supply
on certain types of bulk cable. Margins at Transition were relatively unchanged
between years. North Star expects its gross profit margins to decline due to
expected competitive pricing pressures on products sold by both Americable and
Transition.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
RESULTS OF OPERATIONS (Continued)
The Company's selling, general and administrative expenses increased
$1.7 million or 15.2%, to $12.7 million from $11.1 million in 1995. The
increase in operating expenses at Americable reflects increased selling expenses
of approximately $560,000 due to higher sales salaries, commissions and related
expenses and approximately $300,000 of higher engineering expenses due to the
addition of technical and engineering personnel. General and administrative
expenses of Americable were relatively unchanged between years. Americable
expects that its selling expenses, as a percentage of revenues, may increase
during the remainder of 1996 and throughout 1997. Such increases resulted from
the addition of sales and technical personnel and costs associated with the
release of a new catalog in the first quarter of 1996. If the company
is unable to maintain current gross profit margins and continued sales growth,
the anticipated increases in operating expenses may result in a reduction in
operating profits at Americable.
The Company's research and development expenses (incurred exclusively
within Transition) were approximately $1.1 millon verses $900,000 from the
9 month periods ended September 30, 1996 and 1995.
Transition had increased operating expenses of approximately $933,000, or
28%, which reflects increased engineering expenses of approximately $445,000 due
to the addition of engineering personnel associated with new product
development. In addition, this increase also reflects higher sales and
marketing expenses of approximately $450,000, associated with advertising,
participation in trade shows, and other promotional expenses. In an effort to
successfully develop and launch new advanced LAN products, Transition
anticipates the increased levels of spending on engineering, marketing and
promotional costs to continue for the remainder of 1996 and throughout 1997.
If such increased level of spending does not result in the timely introduction
of commercially successful products, Transition may experience significantly
reduced levels of sales growth and operating results.
Corporate expenses decreased approximately $106,000, or 9.8% primarily due
to lower professional fees.
Investment income of $7.7 million represents the pre-tax gain recognized
from the January 1996 sale of 350,000 shares of CorVel. Net interest expense
decreased $565,000, or 18%, to $2,573,000 from $3,138,000 in 1995, due primarily
to increased interest income resulting from a higher level of cash and cash
equivalents and lower interest rates and lower outstanding levels of debentures
between years.
The income tax provision in 1996 reflects the Company's estimated effective
annual tax rate. The income tax benefit in 1995 relates to the elimination of
deferred tax liabilities that will reverse as net operating losses available for
carryforward are utilized in future periods. To the extent loss carryforwards
are realized in the future, deferred taxes will be reinstated.
<PAGE>
North Star Universal, Inc. and Subsidiaries
ITEM 2 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
RESULTS OF OPERATIONS (Continued)
Equity in earnings of unconsolidated subsidiaries decreased $1,135,000 to
$2,750,000 from $3,885,000 in the previous year. A decrease of $979,000
resulted from lower earnings at Michael Foods, and a decrease of approximately
$156,000 resulted from the Company's reduced ownership interest in CorVel
following the January 1996 sale of stock. Further information with respect to
the results of operations of Michael Foods and CorVel is contained in the
Management's Discussion and Analysis of Financial Condition and Results of
Operation section of their respective annual and quarterly reports as filed on
Forms 10-K and 10-Q with the Securities and Exchange Commission.
The gain from discontinued operations for the period represents the
disposition gain on the sale of Eagle which was completed April 26, 1996.
The loss from discontinued operations for 1995 includes the operating and
disposition losses of C.E. Services which was sold May 5, 1995 (see Note 3
to the Notes to Condensed Consolidated Financial Statements).
<PAGE>
North Star Universal, Inc. and Subsidiaries
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
CAPITAL RESOURCES AND LIQUIDITY
The Company has historically experienced cash flow deficits from
operations. Cash used in operations was $1.95 million for the nine months ended
September 30, 1996, as compared to $3.4 million in 1995. The Company expects
operating cash flow deficits to continue.
The Company does not have the use of cash flow generated by either Michael
Foods or CorVel other than proceeds from quarterly dividends. In each of the
nine month periods ended September 30, 1996 and 1995, the Company received
dividends of $1,103,000 from Michael Foods. There can be no assurance that
Michael Foods will continue to declare such dividends. Since its initial public
offering, CorVel has not declared any dividends, and has indicated that it does
not anticipate doing so for the foreseeable future.
The Company has historically maintained a program whereby it sold
subordinated debentures of various maturities to investors. The debentures were
offered on a continuous basis at interest rates that change from time to time
depending on market conditions. A substantial portion of maturing debentures
have historically been reinvested in new debentures. At September 30, 1996, the
Company had approximately $33.8 million principal amount of subordinated
debentures outstanding.
On November 7, 1995, in light of the negotiations with Michael Foods, the
Company ceased the sale of any new debentures under its debenture program.
Under the terms of the reorganization agreement, the amount of outstanding
debentures at the date of the reorganization will be effectively assumed by
Michael Foods. In January 1996, the Company sold 350,000 shares of its holdings
in CorVel for approximately $11 million cash. In addition, on April 26, 1996,
the Company completed the sale of Eagle resulting in net cash proceeds of
approximately $3.2 million. Proceeds from these transactions will be used
primarily to fund scheduled maturities of debentures through the date of the
proposed reorganization.
To the extent the reorganization agreement with Michael Foods is not
consummated, the Company plans to reinitiate the sale of debentures. Under
these circumstances, however, there can be no assurance that future reinvested
and newly sold debentures will equal or exceed redemptions. The Company has
been highly dependent on the continued sales of debentures under its debenture
program. In the event that, after the sales of debentures are reinitiated,
redemptions substantially exceed reinvested and newly sold debentures or the
program is interrupted for an extended period, the Company would be required to
fund maturities through its existing cash on hand, asset sales, or other means
of financing.
Long-term debt repayments for the nine months ended September 30, 1996 of
approximately $9.9 million consist primarily of redemptions of subordinated
debentures. Proceeds from long-term debt of approximately $1.3 million
represents compounded interest on debentures. The net activity under the
debenture program for the period ended September 30, 1996, resulted in a net
cash use to the Company of approximately $8.6 million.
<PAGE>
North Star Universal, Inc. and Subsidiaries
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
(Continued)
In August 9, 1996, Americable and Transition amended the terms of their
revolving line of credit facility with First Bank National Association to
provide borrowings up to $4 million and $2 million, respectively, due in
September 1998. Borrowings under the amended revolving credit facilities are
based on eligible accounts receivable and inventory with interest at prime,
(8.25% at September 30, 1996) with optional fixed rate advances at the London
Interbank Offered Rate ("LIBOR") plus 2.5%. At September 30, 1996, there were
outstanding borrowings of approximately $1.1 million under the revolving line
of credit, including $857,000 of amounts transferred from the companies'
previous term loan facility which matured in May 1996. In addition, there were
approximately $4.9 million of available borrowings under this credit facility
at September 30, 1996. Previously, the companies maintained a revolving line of
credit with interest at prime plus 1.5%, and term loan facility with interest
at 10.665%.
The Company may from time to time, depending on market conditions and other
factors, sell a portion of its CorVel holdings to fund its corporate expenses
and maturing indebtedness prior to the merger with Michael Foods and to reduce
its indebtedness at the time of the merger. The ability of the Company to sell
its CorVel holdings is limited, however, to sales pursuant to Rule 144 of the
Securities Act and the volume limitations thereof, and to private negotiated
sales, which may adversely affect the ability of the Company to sell a large
portion of the CorVel holdings at a given time.
At September 30, 1996, North Star had approximately $7.9 million of cash
and cash equivalents, excluding cash of its operating subsidiaries. The Company
believes that its available cash and cash equivalents along with the amounts
available under the credit facilities of its operating companies, will be
adequate to meet expected cash requirements, including debenture redemptions,
capital expenditures and potential acquisitions for the remainder of the year.
<PAGE>
PART II - OTHER INFORMATION
North Star Universal, Inc. and Subsidiaries
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits filed with this report on Form 10-Q:
10.4 Commercial Lease Agreement between Americable, Inc. and
LaSalle National Trust
27.1 Financial Data Schedules
(b) No reports on Form 8-K were filed during the quarter ended
September 30, 1996.
<PAGE>
SIGNATURES
Pursuant to the requirement 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.
NORTH STAR UNIVERSAL, INC.
--------------------------
(Registrant)
Date November 5, 1996 by /s/ Jeffrey J. Michael
--------------------------- --------------------------
Jeffrey J. Michael
President and Chief Executive Officer
Date November 5, 1996 by /s/ Peter E. Flynn
--------------------------- --------------------------
Peter E. Flynn
Executive Vice President,
Chief Financial Officer
and Secretary
(Principal Financial and Accounting
Officer)
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- ----------
10.4 Commercial Lease Agreement between Americable, Inc. and
LaSalle National Trust
27.1 Financial Data Schedules
<PAGE>
OFFICE/SERVICE CENTER
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into this 21st day
of August 1996, by and between the party named below in the Schedule of Lease
Terms (the "Schedule") as the landlord (the "Landlord") named below in the
Schedule as the Landlord and the party named below in the Schedule as the Tenant
("Tenant").
For and in consideration of the rents reserved and the covenants and
agreements herein contained on the part of Tenant to be kept, performed and
observed, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the premises defined in the Schedule as the Leased Premises for the
Term specified in the Schedule and upon the terms and conditions hereinafter
set forth.
ARTICLE I
SCHEDULE OF LEASE TERMS
SECTION 1.1 - SCHEDULE
The following Schedule of Lease Terms is an integral part of this Lease
and is referred to throughout this Lease. Each reference in this Lease to the
Schedule or any term therein shall be construed to incorporate all of the terms
provided for under such provision of the Schedule.
Landlord: LaSalle National Trust, N.A. Successor Trustee to LaSalle National
Bank not personally but as trustee under trust agreement dated
January 9, 1989, known as Trust No. 114004.
Tenant: Americable, Inc., a Minnesota corporation.
Leased Premises: That certain premises located in the Building known as
1615 Winnetka Circle and designated on attached Exhibit A.
Building: 1615-1785 Winnetka Circle in Rolling Meadows, Illinois, consisting
of 37,326 square feet of Building Area.
Term:
Commencement Date: December 1, 1996 or upon the substantial
completion of the Leased Premises pursuant to Section 5.1
of the Lease, subject to delays of the nature described in
Section 18.8 hereof.
Termination Date: On the last day of the fourth month of the sixth
Lease Year, subject to earlier termination and extension as
provided in this Lease or any Rider hereto.
Rentable Area: The area in square feet computed in accordance with
Section 3.1(b) of the Lease, which initially shall be 9,331
square feet.
<PAGE>
Tenant's Project Share: 25.00%
Permitted Use: General office, sales, storage and training and light assembly
operations associated with Tenant's network integration and
cabling business.
Security Deposit: $5,500
Base Rent: Additional Rent is abated from Commencement Date through
January 31, 1997.
PORTION OF TERM ANNUAL BASE RENT MONTHLY BASE RENT
From Commencement Date to
March 31, 1997, inclusive $0.00 $0.00
From April 1, 1997 to
November 30, 1997 inclusive $65,317.00 $5,443.08
From December 1, 1997 to
November 30, 1998, inclusive $67,276.51 $5,606.38
From December 1, 1998 to
November 30, 1999, inclusive $69,294.81 $5,774.57
From December 1, 1999 to
November 30, 2000, inclusive $71,373.65 $5,947.80
From December 1, 2000 to
November 30, 2001, inclusive $73,514.86 $6,126.24
From December 1, 2001 to
Termination Date, inclusive $75,720.30 $6,310.03
Broker(s):
Draper and Kramer, Incorporated
The Dunsmore Company
Exhibits:
Exhibit A - Plan (with location of Lease Premises designated)
Exhibit B - Work Letter Agreement
Exhibit C - Signage Criteria
Riders:
Rider 101 - Tenant's Option to Terminate
Rider 102 - Alternative Lease By Tenant
Rider 103 - Option to Renew
<PAGE>
ARTICLE II
PREMISES
SECTION 2.1 - LEASED PREMISES
Landlord is the owner of the real estate consisting of a one-story
office/service center building located in the development designated in the
schedule. That portion of the Building consisting of the Leased Premises set
forth in the Schedule and containing the Rentable Area designated therein is
outlined in red on the plan attached hereto as Exhibit A. Those portions of
the real estate which Landlord from time to time deems advisable to be made
available for the common use of tenants or occupants of the Project (as defined
below), or portions thereof, are sometimes collectively called the "Common
Areas". The real estate, the Building, and the other improvements located
thereon are sometimes collectively called the "Project".
SECTION 2.2 - COMMON AREAS AND USE THEREOF
Tenant and Tenant's officers, employees, agents, licensees, and invitees
shall have the non-exclusive right, in common with Landlord and all tenants
and occupants of the Project or portions thereof and all others to whom
Landlord has or may hereafter grant such right, to use the Common Areas as
designated from time to time by Landlord subject to such reasonable regulations
as Landlord may from time to time impose including the designation of specific
times during which the Common Areas may be utilized and the designation of
specific areas in which trucks, automobiles and/or other vehicles may be parked
and in which materials, including trash and other debris, may be left or stored.
Landlord warrants that, at no time during Tenant's occupancy shall the parking
ratio be reduced to below 3.2 parking spaces per 1,000 square feet of Building
Area. Notwithstanding the foregoing, Tenant will have access to the truck dock
areas at all times during normal business hours. Tenant hereby authorizes
Landlord to remove by whatever means Landlord deems expedient any truck,
automobile or other vehicle parked and/or materials located on the Land outside
the areas designated therefor Tenant further agrees upon demand to reimburse
Landlord for the cost to Landlord of each such removal attributable to Tenant
and agrees to indemnify and hold Landlord harmless with respect thereto.
Tenant agrees to abide by all reasonable and non-discriminatory regulations
(as to both application and enforcement) respecting the use of the Common Areas
adopted from time to time by Landlord during the term of this Lease and agrees
to cause Tenant's officers, employees, agents, licensees and invitees to conform
thereto. Landlord, upon such advance notice, if any, as is reasonable under the
circumstances, may at any time temporarily close the Common Areas or any portion
or portions therefor to make repairs or changes therein, to prevent the
acquisition of public rights therein, or to discourage use or parking not in
<PAGE>
conformity with Landlord's regulations and may do such other acts in and to
the Common Areas as in Landlord's judgment may be desirable to improve the
convenience thereof. Such repairs, changes and acts shall be performed in
such reasonable manner as will, to the extent practical, minimize interference
with the conduct of Tenant's operations. Tenant, upon request, shall furnish
to Landlord the license number and description of each automobile and other
vehicle operated in and around the Project by Tenant and Tenant's officers
and employees. Tenant shall not at any time interfere with the rights of
Landlord, its beneficiaries and/or other tenants or occupants of the Project,
its and their offices, employees, agents, licensees and invitees to use any
part of the Common Areas.
SECTION 2.3 - RESERVATIONS
Landlord, upon such advance notice, if any, as may be reasonable under
the circumstances, reserves the right to construct, operate, maintain, test,
enlarge, change, repair and replace within the Leased Premises and Project
such sewers, pipes, drains, conduits, wires, cables, structural members and
the like as may be deemed necessary by Landlord to provide service to Landlord,
Tenant, other tenants or occupants of the Building or Project or to fulfill
Landlord's duties under this Lease or under any other lease of a portion of the
Building or Project. Landlord shall have access to the Leased Premises at all
times in the case of an emergency and otherwise at such times as do not
materially and adversely disturb the conduct of Tenant's operations for the
exercise of the foregoing reserved rights and no such exercise shall operate as
an eviction hereunder.
ARTICLE III
RENT AND TENANT'S CHARGES
SECTION 3.1 - DEFINITIONS
For the purposes of this Lease:
(a) "Building Area" means the aggregate square foot area of the Building
within the outside face of exterior walls;
(b) "Rentable Area" means the square foot area of the Leased Premises
within the outside face of all exterior walls and the midpoint of all interior
walls plus an allocated portion of common areas including, without limitation,
staging areas and docks and dock access facilities. At the commencement of
the Term, the Rentable Area is the square footage set forth in the Schedule;
(c) "Tenant's Project Share" means the percentage equal to the fraction,
the numerator of which is the number of square feet of Rentable Area and the
denominator of which is the number of square feet of Building Area. At the
commencement of the Term, Tenant's Project Share is the percentage set forth
in the Schedule;
<PAGE>
(d) "Lease Year" means the 12-month period commencing on the Commencement
Date set forth in the Schedule if the Commencement Date is the first day of a
month or on the first day of the first full month after the Commencement Date
if the Commencement Date does not occur on the first day of a month and each
12-month period thereafter during the Term commencing on the anniversary of the
commencement of the first Lease Year; and
(e) "Agent" means the managing agent of the Landlord at the Project.
Tenant may rely on any consent, approval or notice given in writing by Agent
or of Agent's attorneys.
SECTION 3.2 - BASE RENT
Tenant agrees to pay to Landlord in advance, without demand or any
deduction whatsoever, at the address of Agent set forth in the Schedule or
to such other person, or at such other place as Landlord may from time to
time in writing direct, monthly installments of basic rent (the "Base Rent")
as set forth in the Schedule on or before the first day of every calendar
month of the Term (except for the first month's rent which is due and payable
upon the execution of this Lease) and PRO RATA, in advance, for any partial
month, without demand and without any set off or deduction whatsoever. The
covenants to pay rent shall be independent of any other covenant.
SECTION 3.3 - ADDITIONAL RENT
All other rent, sums, liabilities, obligations and other amounts which
Tenant is required to pay or discharge pursuant to this Lease and any Riders
thereto, together with interest for late payment thereon, are sometimes
collectively called "Additional Rent". Additional Rent shall include the
following items:
(a) Tenant's Project Share of total "Taxes" (as defined in Section 7.1),
payable at the times set forth in Section 7.3;
(b) Tenant's Project Share of the total "Operating Costs" (as defined in
Section 7.2), payable at the time set forth in Section 7.3;
(c) Except to the extent reimbursed by insurance proceeds, the cost of
any maintenance, repairs and replacements performed by Landlord at Tenant's
cost pursuant to the provisions of Section 9.2 within ten (10) days after
receipt of Landlord's statement therefor; and
(d) Any rent escalations due pursuant to this Lease and any Rider hereto.
<PAGE>
ARTICLE IV
TERM
SECTION 4.1 - INITIAL TERM
The initial term (the "Term") of this Lease shall commence and terminate
as provided in the Schedule.
ARTICLE V
COMPLETION AND POSSESSION
SECTION 5.1 - TENANT WORK
Tenant, at its sole cost and expense, (except only the allowances referred
to in Section 5.1 hereof), shall cause the "Tenant Work", as defined in the
Work Letter Agreement (the "Work Letter Agreement") attached hereto as Exhibit B
and made a part hereof, to be promptly commenced and diligently completed in the
Leased Premises in a good and workmanlike manner and in accordance with this
Tenant Work or any Additional Work (as defined in Paragraph 3 of the Work Letter
Agreement), Tenant shall deliver to Landlord certificates of such insurers as
may be reasonably required by Landlord including, without limitation, all risk
insurance for the benefit of Landlord for the full insurable value of the Tenant
Work and Additional Work to be performed free of any liens of the contractor,
subcontractor, laborer or materialman and shall secure and deliver to Landlord
when requested such Sworn Contractor's Affidavits and waivers of lien as
Landlord may reasonably request. The Tenant Work, any Additional Work and all
alterations, additions or improvements to the Leased Premises or the Building,
whether made or paid for by Tenant or Landlord, other than Tenant's trade
fixtures, shall without compensation to Tenant, become Landlord's property at
the termination of this Lease by lapse of time or otherwise. Tenant's trade
fixtures shall at all times constitute Tenant's property.
Landlord has granted to Tenant an allowance for the full and satisfactory
completion of the Tenant Work in the amount of $30,000 (the "Tenant Work
Allowance"). Upon the final completion of the Tenant Work in compliance with
the provisions of this Lease, or upon receipt of an invoice from the contractor
performing Tenant Work. Tenant shall either deliver to Landlord such Sworn
Contractor's Affidavits and such waivers of liens as Landlord may reasonably
request in order to establish the full payment of the cost of the Tenant Work,
or shall deliver to Landlord security therefor reasonably acceptable to Landlord
and within 30 days thereafter Landlord shall pay to Tenant the Tenant Work
allowance or portion thereof equal to the amount invoiced by the Contractor.
In the event the cost of the Tenant Work is less than the Tenant Allowance, the
portion of the Tenant Work Allowance which exceeds the cost of the Tenant Work
shall be applied as a credit against the Base Rent and Additional Rent due
hereunder.
<PAGE>
SECTION 5.2 - POSSESSION
Tenant may take possession of the Leased Premises on the Commencement
Date; provided, however, that the Commencement Date shall not be deferred
for any period that the Leased Premises are not ready for occupancy because
of any delays of the types described in Paragraph 4 of the Work Letter
Agreement.
ARTICLE VI
USE AND CONDITION OF LEASED PREMISES; QUIET ENJOYMENT
SECTION 6.1 - USE
Tenant shall use the Leased Premises solely for the Permitted Uses set
forth in the Schedule and for no other use or purpose whatsoever.
Tenant shall not injure, overload, deface or otherwise harm the Leased
Premises or Common Areas, nor commit any nuisance, nor unreasonably annoy
other tenants in the Building or in the Project or owners or occupants of
neighboring property, nor install or use any sign or other advertising device
on the exterior of the Leased Premises other than signs complying with the
provisions of Section 6.4, nor use or permit the use of any portion of the
Leased Premises as living quarters, sleeping apartments or lodging rooms.
Tenant shall not use the Leased Premises or the Common Areas for any purpose
or in any manner nor keep, use, or store therein any hazardous substance or
chemical or any inflammable or explosive liquid or material if (a) such use,
conduct or storage would require the filing or delivery of a disclosure
document upon the transfer of the Project pursuant to the Illinois Responsible
Property Transfer Act of 1988, as from time to time amended, (b) will suspend,
void or make inoperative any policy or policies of insurance carried by Landlord
or Tenant on any improvement which is part of the Project or on any business
thereon or on any property of Landlord, Tenant or others therein or (c) will
increase the insurance rating of any such improvement or will increase the cost
of any of Landlord's insurance.
SECTION 6.2 - COMPLIANCE WITH LAW
Tenant shall comply with all present and future laws, ordinances and
regulations of duly constituted public authorities now or hereafter in any
manner affecting the Leased Premises, the Common Areas, the Project, the
sidewalks adjacent thereto or any buildings thereon or the use thereof, whether
or not any such laws, ordinances or regulations which may be hereafter enacted
involve a change of policy on the part of the governmental authority enacting
the same. Tenant shall not permit any unlawful occupation, business or trade
to be conducted on the Leased Premises or any use to be made thereof contrary
to law, ordinance or regulation. Tenant shall be entitled to such opportunity
as is reasonable under all circumstances to contest the validity of any such
law, ordinance or regulation adversely affecting Tenant's use of the Leased
<PAGE>
Premises. Tenant, however, shall hold Landlord financially harmless and
indemnify and defend Landlord from and against the consequences of any
violation of any such law, ordinance or regulation, whether financial or
otherwise. Notwithstanding anything to the contrary contained herein,
Landlord shall be solely responsible at Landlord's sole cost and expense
for ensuring that the Building and the Project, excluding the Leased Premises,
comply with the provisions of the Americans with Disabilities Act ("ADA");
provided, however, in the event that any governmental authority specifically
directs that Landlord, rather than Tenant, undertake certain actions to bring
the Leased Premises into compliance with the ADA, then Landlord shall perform
such actions at its sole cost and expense.
SECTION 6.3 - CONDITION OF LEASED PREMISES
Tenant has examined and knows the condition of the Leased Premises
(excepting any uncompleted work as Landlord may be obligated to construct
hereunder) and acknowledges that no representation as to the condition and
repair thereof has been made by or on behalf of Landlord prior to or at the
execution of this Lease that is not herein expressed. Tenant agrees to take
good care of the Leased Premises, the Common Areas and the Project and, subject
to the provisions of this Lease, at the termination of this Lease, by lapse of
time or otherwise, shall deliver the Leased Premises to Landlord in the same
condition and repair as when delivered to Tenant at the commencement of the
Term, loss by fire or other insured casualty and ordinary wear and tear
excepted.
SECTION 6.4 - SIGNS; EXTERIOR WINDOWS
Tenant shall not install, paint or place nor permit the installation,
painting, or placement of any signs or other advertising media, any window
ventilation, any air conditioners, any awnings, any aerials or the like within
the Leased Premises, the Building, or the Project without the prior written
consent of Landlord. Landlord reserves the right to designate the type,
composition, and color of all window coverings visible from the outside of the
Building and the dimensions and other requirements of any sign which Landlord
may authorize Tenant to install on the Leased Premises or the Property. The
cost of Tenant's signs, the installation thereof and all governmental permits
therefor, including renewals, shall be paid by Tenant. Landlord shall perform
all maintenance of Tenant's signs during the Term and the entire cost thereof
shall be paid by Tenant as Additional Rent.
SECTION 6.5 - QUIET ENJOYMENT
Provided that Tenant shall pay all Base Rent, Additional Rent and other
charges for which Tenant is liable and keeps and observes all covenants and
conditions of this Lease, Tenant shall have the peaceful and quiet enjoyment
of the Leased Premises without hindrance on the part of Landlord and Landlord
shall warrant and defend Tenant in such peaceful and quiet enjoyment of the
Leased Premises against the lawful claims of all persons claiming by, through
or under Landlord, but Landlord shall not be liable for any breach of the above
covenants occurring subsequent to the transfer of title of the Project.
<PAGE>
SECTION 6.6 - Encumbrances
Tenant shall not do any act or suffer or permit any action to be taken
which shall in any way encumber the Leased Premises, the Building, or Project,
nor shall the interest or estate of Landlord in the Leased Premises, the
Building or Project be in any way subject to any claim by way of lien or
encumbrance, whether by operation of law or by virtue of any express or
implied contract by Tenant except as provided in Section 9.3. Any claim to,
or lien upon, the Leased Premises, the Building or Project arising from any
act or omission of Tenant shall accrue only against the leasehold estate of
Tenant and shall be subject and subordinate to the paramount title and rights
of Landlord in and to the Leased Premises, the Building and Project.
ARTICLE VII
TAXES AND OPERATING COSTS
SECTION 7.1 - TAXES
The term "Taxes" shall mean any taxes levied upon the Project based upon
the ownership, leasing, renting, or operating of the Project. Taxes include,
without limitation, real estate taxes, personal property taxes, sewer rents,
water rents, assessments (special or otherwise), transit taxes, any tax or
excise or rent or any other tax (however described) on account of rental
received for use and occupancy of any or all of the Project, whether any such
taxes are imposed by the United States, the state, any local governmental
municipality, county or authority or agency, or any other political subdivision
of any thereof. Taxes shall also include all reasonable costs and expenses
(including, without limitation, reasonable attorney fees and court costs)
charged for the protest or the reduction of any of the aforesaid taxes, whether
such protest or reduction is ultimately successful or not. Upon the request of
Landlord, Tenant will cooperate with Landlord and will execute any document
which may be reasonably necessary and proper for any such protest or contest
proceeding. Landlord shall have the right, but not the obligation, to withhold
the payment of any Taxes, in connection with any such protest or contest.
Landlord agrees to have any special assessments paid in installments over the
longest period available.
If at any time during the Term, a tax or excise on rents or income or other
tax however described (herein called "Rent Tax") is levied or assessed by the
State of Illinois, or any political subdivision thereof or other governmental
authority, on account of the rents hereunder or the interest of Landlord (or of
Landlord's beneficiaries) under this Lease, and if such Rent Tax is in lieu of,
in addition to or as a substitute for, in whole or in part, real estate taxes or
other AD VALOREM taxes, such Rent Tax shall constitute and be included in Taxes,
provided further, in no event shall Tenant be obligated (a) to pay for any year
any greater amount by way of personal property tax replacement income tax or
such Rent Tax than would have been payable by Tenant had the rentals paid to
Landlord under all Project leases (being the rentals upon which such taxes are
imposed) been the sole taxable income of Landlord (or Landlord's beneficiaries)
for the year in question or (b) to pay or to reimburse Landlord for any tax of
any kind assessed against Landlord (or Landlord's beneficiaries) on account of
any such Rent Tax having been reimbursed.
<PAGE>
For the purpose of determining Taxes for any given calendar year the
amount to be included for such year (a) from special assessments payable in
installments shall be the amount of the installments (and any interest) paid
during such calendar year, (b) from all other Taxes shall be the amount paid
during such calendar year without regard to when any such Taxes are assessed
or the period for which such Taxes are applicable and (c) from any adjustment
to any Taxes by the taxing authority, when such adjustment has resulted in a
corresponding adjustment payment by or to Landlord, shall constitute an
adjustment to Taxes for the calendar year during which such adjustment is made
or received by Landlord, as the case may be.
Taxes shall not include any net income, capital, stock, succession,
transfer, franchise, gift, estate or inheritance taxes.
SECTION 7.2 - OPERATING COSTS
As used in this Lease, the term "Operating Costs" shall mean and refer to
all reasonable costs and expenses of every kind and nature paid or incurred by
Landlord during the Term in operating, insuring, managing, equipping, policing,
protecting, heating, cooling, lighting, repairing, replacing and maintaining the
Leased Premises, the Building and the Project including periodic maintenance and
repair of the exterior, roof, structural elements and mechanical systems of the
Leased Premises, the Building and the Project, including the cost of any
maintenance contracts for HVAC units and for other mechanical systems and
including the replacement of components of HVAC units (but not entire units) and
of the mechanical systems thereof and the cost of insurance in such amounts and
against such risks as Landlord shall reasonably require (including, without
limitation, casualty, comprehensive, general liability, catastrophic, excess
single limit liability and rent insurance); provided, however, that Operating
Costs shall not include the following: (a) costs of alterations of any tenant's
premises, except for repairs to the Project or capital improvements otherwise
includable in Operating Costs; (b) principal and interest payments on loans
secured by mortgages or trust deeds encumbering the Project or the leasehold;
(c) costs of capital improvements, except that Operating Costs shall include
the cost during the Term, as reasonably amortized by Landlord with interest at
then current rates for construction financing on the unamortized amount, of all
capital improvements made during the Term which reduce or are intended to reduce
any of the costs included within Operating Costs; (d) costs for which Landlord
receives direct reimbursement from tenants of the Project other than by reason
of operating cost clauses; (e) brokerage and leasing commissions, advertising
<PAGE>
and marketing costs and other expenses incurred solely to locate new tenants
for the Project; (f) depreciation charges; (g) rental payments due under any
ground lease; (h) wages and salaries of executive personnel above the level
of "building manager"; (I) costs of financing or refinancing; (j) any sums
paid to a person, corporation, partnership or other legal entity related to
Landlord or its beneficiaries (including partners of such beneficiaries)
which exceed normal and competitive rates for the services or goods in
question; or (k) costs and expenses for which Landlord is solely responsible
in Section 9.2.
SECTION 7.3 - PAYMENTS OF ADDITIONAL RENT
Tenant shall pay Tenant's Project Share of Taxes and of Operating Costs
as Additional Rent to Landlord in the manner hereafter provided.
(a) Tenant shall make payments (a "Tax and Expense Adjustment") on account
of the Taxes and of Operating Costs (any such payment with respect to a
particular calendar year being also called an "Additional Rent Progress
Payment") effective as of the first day of the Term and the first day of each
January thereafter falling within the Term (an "Adjustment Date") for each
calendar year during which an Adjustment Date falls as follows:
(i) Landlord may, and from time to time during the calendar year
in which such Adjustment Date falls, deliver to Tenant a
written notice or notices (a "Projection Notice") setting
forth, (A) Landlord's reasonable estimates, forecasts or
projections (collectively, the "Projections") of Taxes and
of Operating Costs for such calendar year based on Landlord's
budgets and reasonable projections of Operating Costs and
reasonable estimates of Taxes, and (B) Tenant's Additional
Rent Progress Payment for such calendar year based upon the
Projections. Landlord's budget of Operating Costs and the
Projections based thereon may assume ninety-five percent (95%)
occupancy.
(ii) Until such time as Landlord furnishes a Projection Notice for
a calendar year, Tenant shall pay to Landlord a monthly
installment of the Additional Rent Progress Payment at the time
of each payment of Base Rent in an amount equal to one-twelfth
of Tenant's current Tax and Expense Adjustment. On or before
the first day of each month thereafter, Tenant shall pay to
Landlord one-twelfth of the Additional Rent Progress Payment
shown in the Projection Notice. Within forty (40) days
following Landlord's service of a Projection Notice, Tenant
shall also pay Landlord a lump sum equal to the Additional
Rent Progress Payment shown in the Projection Notice less
(A) any previous payments on account of Additional Rent
Progress Payments made during such calendar year and (B)
monthly installments on account of Additional Rent Progress
Payments shown in the Projection Notice due for the remainder
of such calendar year.
<PAGE>
(iii) Tenant agrees to pay monthly installments of Additional
Rent Progress Payments in the amount set forth in an initial
Projection Notice from and after the Commencement Date until
any component thereof is changed pursuant to a Projection
Notice from Landlord as provided above.
(b) The following readjustments with regard to the Tax and Expense
Adjustment shall be made by Landlord and Tenant:
(i) After Landlord shall have determined the amounts of Operating
Costs or Taxes, as the case may be to be used in calculating
the Tax and Expense Adjustment for each calendar year, Landlord
shall notify Tenant in writing ("Landlord's Statement") of such
Taxes and such Operating Costs for such calendar year which will
be delivered to Tenant within 120 days of the end of each
calendar year. If the Tax and Expense Adjustment due for such
calendar year exceeds the payments on account of the Additional
Rent Progress Payment made during such calendar year, then
Tenant, within forty (40) days after the date of Landlord's
Statement, shall pay to the Landlord the amount by which the
Tax and Expense Adjustment exceeds the payments on account of
the Additional Rent Progress Payment made during such calendar
year. If the payments on account of the Additional Rent
Progress Payment made during such calendar year, then Tenant,
within forty (40) days after the date of Landlord's Statement,
shall pay to the Landlord the amount by which the Tax and
Expense Adjustment exceeds the payment on account of the
Additional Rent Progress Payment made during such calendar year.
If the payments on account of the Additional Rent Progress
Payment made during such calendar year exceed the Tax and
Expense Adjustment owed for such calendar year, then Landlord
shall credit such excess to the rentals next payable after the
date of Landlord's Statement, or may, at its option, credit such
excess to any rentals then due and owing, until such excess has
been exhausted. If this Lease shall expire prior to full
application of such excess, then Landlord shall pay to Tenant
within 90 days of lease expiration, the balance thereof not
previously applied against the rental and not reasonably
required for payment of Additional Rent for the calendar year
in which this Lease expires.
<PAGE>
(ii) No interest or penalties shall accrue on any amounts which
Landlord is obligated to credit or pay to Tenant by reason
of this Section 7.3(b).
(c) With respect to any calendar year which does not fall entirely
within the Term, Tenant shall be obligated to pay as Additional Rent for
such calendar year only a pro rata share of Additional Rent as hereinabove
determined, based upon the number of days of the term of this Lease falling
within the calendar year. Following expiration or termination of this Lease,
Tenant shall pay any Additional Rent due to the Landlord within fifteen (15)
days after the date of Tenant's receipt of Landlord's Statement. Without
limitation on other obligations of Tenant which shall survive the expiration
of the term of this Lease, the obligations of Tenant to pay Additional Rent
provided for in this Section 7.3(c) shall survive the expiration or termination
of this Lease.
SECTION 7.4 - LANDLORD'S STATEMENT; INSPECTION OF RECORDS
Landlord shall cause to be kept books and records showing Operating Costs
during each calendar year during the Term in accordance with an appropriate
system of accounts and accounting practices consistently maintained from year
to year. Landlord shall deliver the Landlord's Statement to Tenant as promptly
as practical following the close of each calendar year. The Landlord's
Statement shall certify the amount of Operating Costs for such calendar year
and that the Landlord's Statement has been prepared in accordance with the
applicable provisions of this Lease and in accordance with generally accepted
accounting principles. Tenant shall have the right to examine the Landlord's
books and records showing the Operating Costs at any time during normal business
hours within forty-five (45) days following the receipt of each Landlord's
Statement. Unless Tenant shall notify Landlord of its exception to any items in
such Landlord's Statement within such period, such Landlord's Statement shall be
deemed accepted by Tenant. Tenant shall not be entitled to defer or withhold
any payment of Additional Rent due pursuant to Section 3.3 pending the
examination of Landlord's books and records or the resolution of any dispute
with respect thereto.
ARTICLE VIII
INSURANCE
SECTION 8.1 - TENANT'S INSURANCE
Tenant, at Tenant's sole cost and expense, shall obtain and keep in force
during the Term the following insurance coverages:
(a) comprehensive general public liability insurance, with a contractual
liability endorsement, covering the legal liability of Tenant against
claims for bodily injury, death or property damage, occurring on, in
or about the Leased Premises and the adjoining land, in the minimum
combined single limit amount of $2,000,000;
<PAGE>
(b) worker's compensation insurance and employer's liability insurance
(with a minimum limit of $100,000) covering all liability imposed under the
provisions of any worker's compensation law, employer's liability act or
similar laws of the State of Illinois that may at any time or from time to
time be enacted;
(c) insurance covering all contents, and Tenant's trade fixtures,
machinery, equipment, furniture and furnishing in the Leased Premises to the
extent of at least 90% of their replacement cost under broad form standard
fire and extended coverage insurance, including, without limitation, vandalism
and malicious mischief and sprinkler leakage endorsements;
(d) broad form, "all risk" business interruption or extra expense
insurance; and
(e) such other insurance, in such amounts and against such risks, as may
be reasonably required by Landlord and is generally required by landlords of
buildings comparable to and in the same general area as the Building.
Tenant shall not obtain or carry separate insurance concurrent in form or
contributing in the even of loss with that required in this Section 8.1 to be
furnished by Tenant unless Landlord and any other parties designated by Landlord
are included therein as a named insured, with loss payable as in this Lease
provided. Tenant shall immediately notify Landlord whenever any such separate
insurance is obtained and shall deliver to Landlord the policy or policies or
certificates evidencing the same.
SECTION 8.2 - LANDLORD'S INSURANCE
Landlord at Landlord's cost but as an Operating Cost, shall obtain and
keep in force during the Term the following insurance coverages:
(a) insurance insuring against loss by fire and lightning and insurance
against the perils customarily covered by an all risk form of coverage
(including vandalism, malicious mischief and sprinkler leakage) in an amount
equal to the full insurable value of the Building and all other improvements
which are part of the Project. The term "full insurable value," as used
herein, means actual replacement cost, including the costs of debris removal,
without deduction for depreciation;
(b) comprehensive general public liability insurance covering the legal
liability of Landlord against claims for bodily injury, death or property
damage, occurring on, in or about the Building, the Project and the adjoining
land, in such amounts as shall be deemed appropriate by Landlord in its sole
discretion; and
(c) such other insurance, in such amounts and against such risks, as may
reasonably be required by Landlord.
<PAGE>
SECTION 8.3 - FORM OF INSURANCE
All insurance required to be carried by Tenant hereunder shall be in
companies and in form, substance and amount satisfactory from time to time
to Landlord and any mortgagee of Landlord. Policies of insurance required
of Tenant and Landlord under this Lease shall be carried with companies rated
by Best Insurance Reports not lower than "B" and shall be in standard forms.
Insurance policies described in Section 8.1(a) shall name Landlord and any
other party designated by Landlord as an additional insured and insurance
policies described in Section 8.1(c) shall contain waivers of subrogation
against Landlord and any such other party and expressly permit waiver of
claims prior to a loss as provided in Section 8.5 hereof. No insurance
policies described in Section 8.1 shall be subject to cancellation except
after at least thirty (30) days' prior notice to Landlord and to any
mortgagee of Landlord. The original insurance policies (or certificates
thereof satisfactory to Landlord), together with satisfactory evidence of
payment of the premiums thereon, shall be deposited with Landlord on the
Commencement Date and renewals thereof shall be deposited with Landlord not
less than thirty (30) days prior to the end of the term of each such coverage.
SECTION 8.4 - FIRE PROTECTION
Tenant shall comply with all applicable fire codes of any governmental
authority having jurisdiction over the Project and with the rules and
regulations of Landlord's fire underwriters and their fire protection
engineers. All costs incurred in the operation and maintenance of a
sprinkler monitoring system shall be included as part of Operating Costs.
SECTION 8.5 - MUTUAL WAIVER OF CLAIMS AND SUBROGATION RIGHTS
Notwithstanding any other provision of this Lease to the contrary,
whenever (a) any loss, cost, damage or expense resulting from fire,
explosion or any other casualty or occurrence is incurred by either Landlord
or Tenant or by anyone claiming by, through, or under Landlord or Tenant in
connection with the Leased Premises, and (b) such party is then covered in
whole or in part by insurance with respect to such loss, cost, damage or
expense or is required under this Lease to be so insured, then the party so
insured (or so required) hereby waives any claims against and releases the
other party from any liability said other party may have on account of such
loss, cost, damage or expense to the extent of any amount recovered by reason
of such insurance (or which could have been recovered had such insurance been
carried as so required); provided that such waiver of claims or release of
liability shall not be operative in any case where the effect thereof is to
invalidate such insurance coverage or increase the cost thereof (except that
in the case of increased cost, the other party shall have the right, within
thirty (30) days following written notice, to pay such increased cost, thereby
keeping such release or waiver in full force and effect). If either party at
<PAGE>
any time is unable to procure or retain such waivers of subrogation in its
insurance policies, then such party shall promptly notify the other party and
the other party shall be released from any obligation to have such waivers in
its policies of insurance.
ARTICLE IX
ALTERATIONS, MAINTENANCE, REPAIRS AND REPLACEMENT
SECTION 9.1 - ALTERATIONS
Tenant shall make no alteration in or addition to the Leased Premises
nor permit the making of any hole in the walls, partitions, ceilings or floors
thereof without on each occasion obtaining the prior written consent of
Landlord which consent shall not be unreasonably withheld. The construction
and installation of any permitted alteration or addition shall be performed in
a good and workmanlike manner and pursuant to plans and specifications and
utilizing contractors approved by Landlord, which approval shall not be
unreasonably withheld. Upon completion of any such alterations or additions,
Tenant shall provide Landlord with such documents and/or "as built" working
drawings as Landlord may reasonably request. Any alteration and/or addition
made by Tenant in or to the Leased Premises, subsequent to the completion of
the Tenant Work whether or not made with the consent of Landlord, shall remain
on the Leased Premises and without compensation to Tenant shall become the
property of Landlord upon the termination of this Lease by lapse of time or
otherwise; provided, however, that if Landlord so elects by written notice to
Tenant delivered at the time approval is given, Tenant shall remove all such
alterations and/or additions and restore the Leased Premises to a condition
comparable to that existing at the time such alterations and/or additions
were made. Nothing herein contained shall prevent the installation of Tenant's
trade fixtures in the Leased Premises, provided that such trade fixtures can be
installed and removed upon termination of this Lease without structural damage
to the Leased Premises and provided that Tenant shall remove all such trade
fixtures and restore the Leased Premises to a condition comparable to that
existing at the time such installation was made. Tenant shall make all
alterations and additions to the Leased Premises as are required by governmental
authority and which arise by reason of Tenant's particular use of the Leased
Premises and all alterations and additions which are made necessary by the act
or neglect of Tenant, its agents, employees and invitees to the extent not
covered by insurance Landlord is required to maintain under this lease.
SECTION 9.2 - MAINTENANCE, REPAIRS AND REPLACEMENTS OF THE LEASED PREMISES
Subject to the provisions of Section 10.1, Landlord shall perform or cause
to be performed all maintenance, repairs and replacements of the Common Areas
and of the exterior, roof and structural elements of the Building and of all
roof-mounted mechanical, heating, air conditioning and ventilating systems
therein keeping the same in good repair. Except as set forth below, the cost
of all such maintenance, repairs, and replacements (other than replacement of
<PAGE>
the structural elements, exterior or roof of the Building) shall be a part of
the Operating Costs; provided, however, that any maintenance, repairs or
replacements (including maintenance, repairs, and replacements to the exterior,
roof, structural elements and mechanical systems of the Building), the need for
which arises by reason of any act, negligence or omission of Tenant or any
officer, employee, agent, licensee, or invitee of Tenant, shall be performed by
Landlord, but the entire cost thereof (as reduced by any applicable insurance
proceeds available or that would have been applied had Landlord maintained
the insurance required under this Lease) shall be paid by Tenant as Additional
Rent. The Landlord certifies that the following are in good working order as
of the date of this lease: HVAC system, plumbing fixtures, electrical fixtures,
interior and exterior windows, truck doors, "man doors", utility doors,
levelators located within the Leased Premises or exclusively serving the Leased
Premises.
If Landlord fails or neglects to keep and perform any of the covenants or
agreements in this Lease on the part of Landlord to be kept and performed,
Tenant may notify Landlord thereof and if Landlord does not cure such default
within thirty (30) days (or such shorter period as may be reasonable under the
circumstances, in the event of an emergency) after the date of receiving such
notice (or if the default is of such a character as to require more than thirty
(30) days and proceed with the cure with reasonable diligence), Tenant may, in
addition to all other remedies now or hereafter afforded or provided by law,
perform such covenant or agreement for or on behalf of Landlord or make good
any such default, and any amount or amounts which Tenant advances on Landlord's
behalf will be repaid by Landlord to Tenant on demand.
Tenant shall be responsible for, and shall perform or cause to be performed
at Tenant's sole cost and expense in a first class manner and to the reasonable
satisfaction of Landlord, all repairs and maintenance of the Leased Premises,
including plumbing fixtures, electrical fixtures, bulbs and tubes, interior
and exterior windows, all cranes, truck doors, "man doors", utility doors,
levelators and hydraulic lifts located within the Leased Premises or exclusively
serving the Leased Premises and all other fixtures and equipment of Landlord
located therein or exclusively serving the Leased Premises, keeping the same in
good order, condition and repair and in a clean and tenantable condition and in
compliance with all laws, ordinances and regulations applicable to the repair
and maintenance thereof ordinary wear and tear and damages by casualty excepted.
If Tenant shall fail so to maintain and repair the Leased premises, Landlord may
perform such maintenance, but shall not be required to do so, and the cost
thereof shall be paid by Tenant as provided in Section 3.3(c).
Notwithstanding anything contained herein to the contrary, in the event
the heating, ventilating and air-conditioning systems located on the roof top
of the Leased Premises or the compressors located therein, shall become
inoperable, other than by reason of any act, negligence or omission of Tenant
or any officer, employee, agent, licensee or invitee of Tenant, and shall
require replacement, Landlord and Tenant agree that: (a) if the replacement
<PAGE>
of the systems is required prior to December 1, 1998, Landlord shall pay one
hundred percent (100%) of the cost of replacement thereof; or (b) if the
replacement of the systems is required on or after December 1, 1998, but prior
to December 1, 1999, Landlord shall pay fifty percent (50%) of the cost of
replacement thereof and fifty percent (50%) of such replacement cost shall be
paid by Tenant; or (c) if the replacement of the systems is required on or
after December 1, 1999, the Tenant shall pay one hundred percent (100%) of the
cost of replacement thereof.
SECTION 9.3 - MECHANICS' LIENS
Tenant shall not permit any mechanic's, laborer's, materialman's or
other lien to stand against the Leased Premises for any labor or material
furnished to Tenant or claimed to have been furnished to Tenant in connection
with work of any character performed or claimed to have been performed on or
about the Leased Premises by or at the direction or sufferance of Tenant,
whether or not such work was performed or materials furnished with the consent
of Landlord. Tenant, however, may contest the validity of any such lien or
claim provided that Tenant shall deposit with Landlord a cash deposit of at
least 150% of such lien or claim (or such other security as landlord shall
reasonably require) and shall take all steps which may be reasonably required
to prevent any sale, foreclosure or forfeiture of the Leased Premises, the
Building or the Project by reason of nonpayment, and shall diligently prosecute
the defense thereof. Upon a final determination of the validity of any such
lien or claim, Tenant shall immediately pay any judgment or decree rendered,
with all proper costs and charges, and shall cause any such lien to be released
of record without cost to Landlord. If Tenant, in Landlord's opinion, shall
fail or cease to diligently prosecute such action or if Tenant shall fail to
pay any judgment or decree rendered (including all interest, penalties, costs,
charges, and Landlord's expenses, including court costs and reasonable
attorneys' fees), Landlord may pay the entire amount of such claim or lien,
or such judgment or decree rendered and other amounts set forth above, out of
such deposit and shall return the remainder of such amount, if any, to Tenant.
ARTICLE X
DAMAGE, DESTRUCTION AND EMINENT DOMAIN
SECTION 10.1 - FIRE, EXPLOSION OR OTHER CASUALTY
In the event the Leased Premises are damaged by fire, explosion or
any other casualty and this Lease is not terminated as hereafter provided,
then, subject to the other provisions of this Lease, the damage shall be
diligent repaired by Landlord; provided, however, that in no event shall
Landlord be required to repair or replace Tenant's stock, fixtures, furniture,
<PAGE>
furnishings, floor coverings, equipment or the like, or alterations or
additions to the Leased Premises made by Tenant. In the event of any such
damage and (a) if the Leased Premises shall be damaged to the extent of
fifty percent (50%) or more of the cost of replacement, (b) if the Building
is damaged to the extent of twenty-five percent (25%) or more of the cost of
replacement, or (c) if the casualty shall render the Leased Premises
untenantable and the damage cannot in Landlord's judgment be repaired within
forty-five (45) days after the happening thereof, then Landlord may terminate
this Lease by written notice to Tenant. If any such damage cannot be repaired
within one hundred eighty (180) days after the occurrence thereof, then
Landlord shall so notify Tenant within forty-five (45) days after the
occurrence thereof and either party may terminate this Lease by written notice
to the other given if at all within ten (10) days thereafter. In the event
of any such termination, all obligations of the parties shall cease as of the
date of occurrence of casualty, including the obligation to pay rent and other
charges. The cost of replacement for purposes hereof shall be determined by a
licensed architect selected by Landlord. If the repair of Leased Premises is
not substantially completed within a period of one hundred eighty (180) days
after the date of the occurrence of such damage (as extended by delays of the
nature described in Section 18.7) then Landlord or Tenant may terminate this
Lease by written notice to the other party given within five (5) days after
the expiration of such one hundred eighty (180) day period.
If such casualty shall render the Leased Premises or any portion thereof
untenantable, then the Base Rent and Additional Rent shall be abated as
hereinafter set forth. Any abatement of rent hereunder shall be on a per diem
basis in an amount bearing the same ratio to such rent for the period of
untenantability as the untenantable portion of the Leased Premises bears to
the entire Leased Premises.
SECTION 10.2 - EMINENT DOMAIN
If the whole of the Leased Premises shall be taken by any public
authority under the power of eminent domain, this Lease shall cease as of
the day possession shall be taken by such public authority and Tenant shall
pay rent up to that date with an appropriate refund by Landlord of any rent
which has been paid in advance for a period subsequent to the date possession
is so taken. If ten percent (10%) or less of the area of the Leased Premises
shall be so taken and if the remainder thereof and of the Common Areas is
tenantable by Tenant for the purposes for which the Leased Premises were used
immediately prior thereto, then this Lease shall cease only as to the parts
so taken as of the day possession shall be so taken by such public authority
and Tenant shall pay rent for such parts up to that day with an appropriate
refund by Landlord of any rent which has been paid in advance for a period
subsequent to the date possession is so taken, and thereafter the Base Rent
and Additional Rent shall be equitably adjusted. Landlord, at Landlord's
<PAGE>
expense, shall make all necessary repairs or alterations to the Leased
Premises and Common Areas so as to constitute the remaining premises a
complete architectural unit; provided, that if the reasonable cost of
such repairs or alterations (as determined by a licensed architect selected
by Landlord) will exceed the amount of the award of if such repairs or
alterations cannot in Landlord's reasonable judgment be completed within
sixty (60) days, then Landlord may terminate this Lease as of the day of
possession by written notice to Tenant and Tenant shall pay rent and other
charges to such termination. If more than ten percent (10%) of the area
of the Leased Premises shall be so taken or if such portion of the Common
Areas is taken that the remainder is not tenantable by Tenant for the
purposes for which the Leased Premises were used immediately prior to
such taking, then either party shall have the right to terminate this Lease
upon notice in writing to the other delivered on or before the day of
surrendering possession to the public authority. If neither party so
terminates, all of the provisions of this Lease shall continue to effect,
except that the rent and other charges payable by Tenant shall be
equitably adjusted, and Landlord shall make all necessary repairs or
alterations to the Leased Premises and Common Areas so as to constitute
the remaining premises a complete architectural unit. If more than ten
percent (10%) of the aggregate floor area of the Building or more than
ten percent (10%) of the area of the Land shall be taken under the power
of eminent domain then Landlord, by notice in writing to Tenant delivered
on or before the day of surrendering possession to public authority, may
terminate this Lease and rent shall be paid or refunded as of the date of
termination. All compensation awarded for any taking under the power of
eminent domain, whether for the whole or a part of the Leased Premises,
the Building or any part of the Project shall be the property of Landlord,
whether awarded as compensation for diminution in the value of the leasehold
or to the fee of the Leased Premises or otherwise, and Tenant hereby assigns
to Landlord all of the Tenant's right, title and interest in and to any and
all such compensation; provided, however, that Landlord shall not be entitled
to any award made expressly to Tenant for the taking of Tenant's trade fixtures
or furniture or for relocation.
ARTICLE XI
INDEMNIFICATION AND WAIVER
SECTION 11.1 - INDEMNIFICATION BY TENANT
Tenant will pay, and will protect, indemnify and save harmless Landlord
from and against all liabilities, losses, obligations, claims, damages,
penalties, costs and expenses (including without limitation, all reasonable
attorneys' fees and expenses) which may be imposed or incurred by or awarded
against Landlord by reason of (a) any accident, injury to or death of persons
or loss of or damage to property occurring on or about the Leased Premises or
resulting from any act or omission of Tenant or anyone claiming by. through
<PAGE>
or under Tenant, (b) any failure on the part of Tenant to perform or comply
with any of the terms of this Lease, (c) any use, non-use or condition of the
Leased Premises or any part thereof, or (d) performance of any labor or services
or the furnishing of any materials or other property in respect of the Leased
Premises or any part thereof, except to the extent that same shall have been
caused by Landlord's negligence or willful misconduct. In case any action,
suit or proceeding is brought against Landlord by reason of any such occurrence,
Tenant will, at Tenant's expense, by counsel approved by Landlord, resist and
defend such action, suit or proceeding.
SECTION 11.2 - LIMITATION OF LANDLORD'S LIABILITY
Tenant, as a material part of the consideration to be rendered to Landlord
under this Lease, to the extent permitted by law, thereby waives all claims,
except to the extent of claims caused by or resulting from its negligence or
willful misconduct of Landlord, its agents, servants or employees, which Tenant
or Tenant's successor or assigns may have against Landlord, its agents, servants
and employees, for loss, theft or damage to property and for injuries to persons
in, upon or about the Leased Premises, the Building or the Project from any
cause whatsoever. Tenant will hold Landlord, its agents, servants and employees
harmless from and on account of any damage or injury to any person, or to the
goods, wares and merchandise of any person, arising from the use of the Leased
Premises by Tenant, or arising from the failure of Tenant to keep the Leased
Premises in good condition as herein provided. Neither Landlord nor its agents,
servants or employees shall be liable to Tenant for any damage by or from any
act of negligence of any co-tenant or other occupant of the Land or the
Building, or by any owner or occupant of adjoining or contiguous property.
Tenant agrees to pay for all damage to the Land, the Building and the Leased
Premises, as well as all damage to tenants or occupants thereof caused by
Tenant's misuse or neglect of the Leased Premises, its apparatus or
appurtenances, or caused by any licensee, contractor, agent or employee of
Tenant.
Particularly, but not in limitation of the foregoing paragraph, all
property belonging to Tenant or any occupant of the Leased Premises that is
on the Project, in the Building or the Leased Premises shall be there at the
risk of Tenant or such other person only, and Landlord and its agents or
employees (except to the extent of the negligence and willful misconduct of
Landlord or its agents or employees) shall be liable for any damage to or
theft of or misappropriation of such property; nor for any damage to property
entrusted to Landlord, its agents or employees, if any; nor for the loss of
or damage to any property by theft or otherwise, by any means whatsoever; nor
for any injury or damage to person or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, snow, water or rain which may leak
from any part of the Building or from the pipes, appliances or plumbing works
therein or from the roof, street or subsurface or from any other place or
resulting from dampness or from any other cause whatsoever; nor for interference
with light or any other incorporeal hereditaments, nor for any latent defect
in the Leased Premises or in the Building or the Land. Tenant shall give prompt
notice to Landlord in case of fire or accidents in the Leased Premises or
in the Building or in case of defects therein or in the fixtures or equipment
therein.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
SECTION 12.1 - BY TENANT
Tenant shall not assign this Lease or any interest herein and shall
not sublet the Leased Premises or any part thereof or any right or privilege
appurtenant thereto, or suffer any other person to occupy or use the Leased
Premises or any portion thereof, without first obtaining the written consent
of Landlord, which consent may be withheld except as hereinafter expressly
otherwise provided.
Landlord agrees not to withhold consent to any such assignment of this
Lease or subletting of the entire Leased Premises provided that Tenant
requests the same in writing and provided that (i) at the time thereof Tenant
is not in default under this Lease, (ii) Landlord, in its sole discretion
reasonably exercised, determines that the reputation, business, proposed use
of the Leased Premises and financial responsibility of the proposed assignee
or sublessee, are satisfactory to Landlord, (iii) any assignee or sublessee
shall expressly assume all the obligations of this Lease on Tenant's part to
be performed, (iv) such consent, if given, shall not release Tenant or any
guarantor of Tenant's obligation thereunder of any of its obligations under
this Lease, including without limitation, its obligation to pay rent, (v)
Tenant agrees specifically to pay over to Landlord, as Additional Rent, all
sums provided to be paid under the terms and conditions of such assignment or
sublease which are in excess of the amounts otherwise required to be paid
pursuant to this Lease, (vi) a consent to one assignment or subletting shall
not be deemed to be a consent to any subsequent assignment or subletting,
(vii) any mortgagees (having the right to approve tenants or space leases)
of the Building have given their consent to such assignment or subletting,
(viii) Tenant shall indemnify and hold harmless from any brokerage commissions
due in connection with such assignment or subletting, and (ix) Tenant
reimburses Landlord for all of Landlord's out-of-pocket expenses incurred in
connection with such assignment or subletting. Whether or not such conditions
to assignment or subletting are met, Landlord, at its sole option, may elect
to terminate this Lease on the first day of the second calendar month next
succeeding receipt of Tenant's written request for consent to assignment or
subletting, to be effective unless Tenant elects to withdraw its request to
sublease or assign, which election, if exercised by Landlord shall be by
written notice to Tenant given within five (5) days of receipt by Landlord of
Tenant's request for such consent to assign or sublet. If Landlord elects to
terminate this Lease in accordance with the foregoing sentence, then Landlord
may lease the Leased Premises to the sublessee or assignee proposed by Tenant
or any other person or entity. Any assignment or subletting or occupancy
without Landlord's prior written consent shall be void and, at the option of
Landlord, shall constitute a Default under this Lease. Neither this Lease nor
any interest herein shall be assignable as to the interest of Tenant by
operation of law without consent of Landlord, which consent shall be subject
to each of the standards set forth in this Section 12.1.
Tenant agrees that in the event Landlord withholds its consent to any
assignment, subletting or occupancy contrary to the provisions of this Section
12.1, then Tenant's sole remedy shall be to seek an injunction in equity to
compel Landlord to give its consent and Tenant expressly waives any right to
damages in the event of such withholding by Landlord of its consent. So long
as the reason for such denial is found reasonable.
<PAGE>
SECTION 12.2 - BY LANDLORD
In the event of sale or conveyance or transfer by Landlord of its
interest in the Building, in the Project or in this Lease, the same shall
operate to release Landlord from any future liability under all of the
covenants and conditions, express or implied, contained in this Lease in
favor of Tenant so long as successor in interest of Landlord assumes all
responsibilities of Landlord under this Lease, and in such event Tenant agrees
to look solely to the responsibility of the successor in interest of Landlord
in and to this lease. This Lease shall not be affected by any such sale,
conveyance or transfer.
ARTICLE XIII
DEFAULT AND LANDLORD'S REMEDIES
SECTION 13.1 - DEFAULTS
The occurrence of any of the following shall constitute a default
("Default") hereunder:
(a) if Tenant defaults in the payment of rent (whether Base Rent or
Additional Rent) or any other sum required to be paid pursuant to this Lease
and if the default is not remedied within five (5) days after written notice
thereof by Landlord to Tenant;
(b) if Tenant defaults in the prompt and full performance of any term,
covenant or provisions of this Lease (except the other subparagraphs of this
Section 13.1) and if such default is not remedied within twenty (20) days
after notice thereof by the Landlord; provided, however, that if such default
is susceptible of being cured but cannot by its nature be cured within twenty
(20) days, then Tenant shall have such longer period as is reasonably
necessary to cure such default provided Tenant has promptly commenced and is
diligently pursuing such cure; or
(c) if the leasehold interest of Tenant is levied upon under execution
or is attached under process of law, which levy or attachment continues for
a period of thirty (30) days; or
(d) if Tenant shall generally not pay its debts as they become due or
shall admit in writing its inability to pay its debts or shall make a general
assignment for the benefit of creditors; or
(e) if Tenant shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of Tenant or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for Tenant or for all
or any substantial part of its property; or
<PAGE>
(f) if any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against Tenant as
debtor or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of Tenant or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
Tenant for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against Tenant which is not fully stayed within seven (7) days after the entry
thereof or (ii) remains undismissed for a period of thirty (30) days; or
(g) if Tenant shall vacate or abandon the Leased Premises during the
Term and is not paying rent or fail to take possession of the Leased Premises
within thirty (30) days after the Leased Premises are available for occupancy
(the transfer of a substantial part of the operations, business and personnel
of the Tenant previously located at the Leased Premises to another location
without replacement of same with other operations permitted by the terms of
this lease, being deemed, without limiting the meaning of the term "vacates or
abandons," to be a vacation or abandonment within the meaning of this
subsection (g)), whether or not Tenant thereafter continues to pay rent under
this Lease.
SECTION 13.2 - LANDLORD'S REMEDIES
(a) Upon the occurrence of any one or more Defaults by Tenant, Landlord
may elect to terminate this Lease and Tenant's right to possession of the
Leased Premises or, without terminating this Lease, may forthwith terminate
Tenant's right to possession of the Leased Premises. Upon any termination of
this Lease, whether by lapse of time or otherwise, or upon any termination of
Tenant's right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Leased Premises and deliver possession
thereof to Landlord, and Tenant hereby grants to Landlord full and free
license to enter into and upon the Leased Premises with or without process of
law in the event of any such termination of this Lease or right to possession,
and to repossess Landlord of the Leased Premises and of Landlord's former
estate and to expel or remove Tenant and any others who may be occupying or be
within the Leased Premises and to remove any and all property therefrom using
such force as may be necessary without being deemed in any way 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.
(b) If Tenant entitles Landlord to elect to terminate Tenant's right
to possession only without terminating this Lease and Landlord does so elect,
then Landlord may at Landlord's option enter into the Leased Premises, remove
Tenant's signs and other evidences of tenancy, and take and hold possession
thereof as provided in Section 13.2(a), without such entry or possession
terminating this Lease or releasing Tenant, in whole or in part, from Tenant's
obligation to pay the rent hereunder for the full Term. Upon and after entry
into possession without termination of this Lease, subject to Landlord's right
<PAGE>
to first rent other vacant areas in the Building, Landlord may relet the
Leased Premises or any part thereof to any person, firm, or corporation other
than Tenant for such rent, for such time and upon such terms as Landlord in
Landlord's sole discretion shall determine. Any proceeds from the reletting
of the Leased Premises by Landlord shall first be applied against the cost and
expenses of reletting the Leased Premises including, but not limited to, all
brokerage, advertising, legal, alteration and other reasonably necessary
expenses incurred to secure a new tenant for the Leased Premises. If the
consideration collected by Landlord upon any such reletting after payment of
the expenses of reletting the Leased Premises is not sufficient to pay
monthly the full amount of the rent reserved in this Lease, then Tenant shall
pay to Landlord upon demand the amount of each monthly deficiency as it
becomes due. If the consideration collected by Landlord upon any such reletting
after payment of the expense of reletting the Leased Premises is greater than
the amount necessary to pay the full amount of the rent reserved in this Lease,
the full amount of such excess shall be retained by Landlord and shall in no
event be payable to Tenant.
(c) If the Landlord shall decide to terminate this Lease, Landlord, at
its option, shall be entitled to recover from Tenant, in lieu of any amounts
due under Section 13.2(b), and Tenant shall pay to Landlord, on demand, as and
for liquidated and agreed final damages, a sum equal to Landlord's reasonable
estimate of the aggregate amount of Base Rent and Additional Rent for the
period from the date of such termination through the stated termination of the
Term, as discounted to present worth at the rate of five percent (5%) annum.
(d) Landlord may, but shall not be obligated to, cure, at any time and
without notice, any default by Tenant under this Lease; and whenever Landlord
so elects all costs and expenses thereby incurred by Landlord including,
without limitation, court costs and reasonable attorneys' fees, together with
interest thereon from the date incurred to the date paid at the rate set forth
in Section 18.5 shall be paid by Tenant to Landlord on demand.
(e) Notwithstanding anything in this Lease to the contrary, any and
all remedies set forth in this Leases (i) shall be in addition to any and all
other remedies Landlord may have at law or in equity, (ii) shall be
cumulative and (iii) may be pursued successively or concurrently as the
Landlord may elect. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same, or any
other term, covenant or condition herein contained. The acceptance of rent
hereunder shall not be construed to be a waiver of any breach by Tenant of any
term, covenant or condition of this Lease.
(f) Notwithstanding any provision in this Lease permitting Tenant to
cure any default within a specified period of time, if Tenant shall default
(i) in the timely payment of rent (whether any or all of Base Rent or
Additional Rent) three (3) or more times in any period of twelve (12)
consecutive months, or (ii) in the performance of any particular term,
condition or covenant of this Lease three (3) or more times in any period of
<PAGE>
six (6) consecutive months, then, notwithstanding that such defaults shall
have each been cured within any applicable cure period after notice, as been
cured within any applicable cure period after notice, as provided in this
Lease, any further similar default (including, without limitation, with
respect to non-payment of rent, the further non-payment of any kind of rent
payable under this Lease) shall not be curable by Tenant and Landlord shall
have all of the remedies provided in this Lease (including, without
limitation, any and all remedies at law and in equity) for a Default
hereunder.
SECTION 13.3 - HOLDOVER BY TENANT
If the Tenant retains possession of the Leased Premises or any part
thereof after the termination of the Term or any extension thereof, by lapse
of time or otherwise, Tenant shall become a tenant from month-to-month only
upon all of the terms and conditions herein provided as may be applicable to
a month-to-month tenancy and any such holdover shall not constitute an
extension of this Lease; provided, however that during such holding over
Tenant shall pay the Base Rent and any Additional Rent, at one and a half
times the rate payable for the month immediately preceding said holding over
(including increases for Operating Costs and Taxes which Landlord may
reasonably estimate), computed on a per-month basis for each month or part
thereof (without reduction for any partial month) that the Tenant thus
remains in possession, and in addition thereto, Tenant shall pay the Landlord
all damages, consequential as well as direct, sustained by reason of the
Tenant's retention of possession.
SECTION 13.4 - STORAGE OF TENANT'S PROPERTY
If on termination of this Lease by lapse of time or otherwise or on
abandonment of the Leased Premises, Tenant shall fail to remove any of
Tenant's property from the Leased Premises, Tenant hereby authorizes Landlord,
at Landlord's option, to cause such property to be removed and placed in
storage for the account of and at the expense of Tenant, or on such
termination, to sell such property at public or private sale, with ten (10)
days' prior notice to Tenant, and to apply the proceeds thereof after payment
of all expenses of removal, storage and sale, to the satisfaction of any
obligation of Tenant to Landlord, the overplus, if any to be paid to Tenant
upon demand.
ARTICLE XIV
ASBESTOS AND HAZARDOUS SUBSTANCES
SECTION 14.1 - ASBESTOS
Tenant shall not install or permit to be installed in the Leased
Premises asbestos or any substance containing asbestos and deemed hazardous
by federal, state or local laws, rules, regulations or orders respecting such
material. With respect to any such material installed by Tenant, Tenant shall
promptly either (a) remove any such material required to be removed, or (b)
otherwise comply with such federal, state or local laws, rules, regulations or
<PAGE>
orders, at Tenant's expense. If Tenant shall fail to so remove or otherwise
comply, then Landlord may either declare a Default under this Lease or do
whatever is necessary to remove said substances from the Leased Premises or
otherwise comply with the applicable law, rule, regulation or order and the
cost thereof shall be deemed Additional Rent and shall be due and payable by
Tenant upon demand. Tenant shall permit Landlord, its agents and employees,
to enter the Leased Premises to remove any such asbestos or substance and to
comply with such laws and requirements.
Tenant shall indemnify and hold Landlord harmless from and against all
loss, cost, damage and expense (including, without limitation, reasonable
attorneys' fees and costs incurred in the investigation, defense and
settlement of claims) that Landlord may incur as a result of or in connection
with the assertion against Landlord of any claim relating to the presence or
removal of any such asbestos or substance or the compliance with any federal,
state or local laws, rules, regulations or orders relating thereto. In
addition, Tenant acknowledges that if such asbestos or substance is caused to
be removed from the Leased Premises by either Tenant or by Landlord, then the
Environmental Protection Agency number assigned to the asbestos or substance
so removed shall be solely in the name of the Tenant and that Tenant shall
assume all liability for such removed asbestos or substance. Tenant's
obligations under this Section 13.1 shall survive the termination of this
Lease.
SECTION 14.2 - HAZARDOUS SUBSTANCE
(a) For the purpose of this Section 14.2, "Hazardous Substance (s)"
shall mean any substance, material, waste, gas or particular matter which at
any time shall be listed as "hazardous" or "toxic" under the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. ((9601 ET SEQ., as amended, the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. ((6901 ET SEQ, as amended, the Illinois Environmental
Protection Act ("IEPA") or in the regulations implementing such statutes, or
which has been or shall bee determined at any time by any agency or court to
be a hazardous or toxic substance regulated under any Applicable Laws (as
hereinafter defined); provided, however, that "Hazardous Substances" shall
not include substances which are used or sold solely in the ordinary course of
Tenant's business as specifically provided in this Lease or by Landlord or any
previous tenant at the Leased Premises so long as in each case such substances
at all times are used, handled, transported, stored, discharged or emitted in
strict compliance with all Applicable Laws. If such substances are not so
used, handled, transported, stored discharged or emitted, then they shall be
deemed "Hazardous Substances" for purposes of this Lease.
For the purposes of this Section 14.2, "Applicable Laws" shall include,
but shall not be limited to CERCLA, RCRA, IEPA, the Federal Water Pollution
Control Act, 33 U.S.C. ((1251 ET SEQ, the Clean Air Act, 42 U.S.C. (7401
ET SEQ., as amended, and the regulations promulgated thereunder, and any other
federal, state and/or local laws or regulations, whether currently in
<PAGE>
existence or hereafter enacted or promulgated, that govern or relate to: (i)
the existence, cleanup and/or remedy of contamination on property, (ii) the
protection of the environment from spilled, deposited or otherwise emplaced
contamination, (iii) the control of hazardous or toxic substances or wastes,
or (iv) the use, generation, discharge, transportation, treatment, removal or
recovery of hazardous or toxic substances or wastes, including building
materials.
(b) Tenant shall not conduct or authorize the generation,
transportation, storage, treatment or disposal at the Leased Premises or
the Project of any Hazardous Substance without prior written authorization
by Landlord, which authorization may be arbitrarily refused, and the Tenant's
failure to secure such authorization shall constitute a Default under this
Lease.
(c) If Tenant does generate, transport, store, treat or dispose of
any Hazardous Substance at the Leased Premises or the Project, then:
(i) Tenant, at its own cost, shall comply with all Applicable Laws;
(ii) Tenant shall promptly provided Landlord with copies of all
communications, permits or agreements with any governmental
authority or agency (federal, state or local) or any private
entity relating in any way to the presence, release, threat of
release, placement on or in the Leased Premises or the Project,
or the generation, transportation, storage, treatment, or
disposal at the Leased Premises or the Project, of any Hazardous
Substance;
(iii) Landlord and Landlord's agents and employees shall have the right
to enter the Leased Premises and/or conduct appropriate tests for
the purposes of ascertaining that Tenant complies with all
Applicable Laws relating in any way to the Leased Premises or the
Project; and
(iv) upon written request by Landlord, Tenant shall provide Landlord
the results of appropriate tests of air, water and/or soil to
demonstrate that Tenant complies with all Applicable Laws relating
in any way to the Leased Premises or the Project.
(d) If the presence, release, threat of release, placement on or in the
Leased Premises or the Project, or the generation, transportation, storage,
treatment, or disposal at the leased Premises or Project of any Hazardous
Substance by, at the direction of or for the benefit of Tenant: (I) gives
rise to liability (including, but not limited to, a response action,
remedial action, or removal action) under any Applicable Law or any common law
theory based on nuisance or strict liability, (ii)causes a significant public
health effect, or (iii) pollutes or threatens to pollute the environment,
Tenant shall promptly take any and all remedial and removal action necessary
to clean up the Leased Premises and the Project and to mitigate exposure to
liability arising from the Hazardous Substance, whether or not required by
law.
<PAGE>
(e) Tenant shall indemnify, defend and hold Landlord harmless from all
damages, costs, losses, expenses (including, but not limited to, actual
reasonable attorney's fees and engineering fees) arising from or attributable
to any breach by Tenant of any of its covenants contained in this Section
14.2. Tenant's obligations under this Section 14.2 shall survive the
termination of this Lease.
SECTION 14.3 LANDLORD'S REPRESENTATION
Landlord represents that, to the best of its knowledge, on the date of
this Lease no asbestos or Hazardous Substances are present on the Leased
Premises. Landlord agrees that if any asbestos or Hazardous Substances which
were present on the Leased Premises on the date of this Lease are subsequently
discovered on the Leased Premises, Landlord shall take such steps as shall be
required by law to remove same and return the Leased Premises to the condition
existing prior to the introduction of such asbestos or Hazardous Substances.
ARTICLE XV
UTILITIES
SECTION 15.1 - UTILITIES
(a) tenant shall pay for the use of all electrical, gas and other
utility service to the Leased Premises. Provided that Landlord can make
arrangements satisfactory to Landlord and Tenant with the utility companies,
Tenant shall be billed directly by each such utility and Tenant agrees to pay
each such bill promptly in accordance with its terms. In the event that for
any reason Tenant cannot be billed directly, Landlord shall forward each bill
with respect to the Leased Premises to Tenant and Tenant shall pay it promptly
in accordance with its terms. Notwithstanding anything contained herein to
the contrary, if Tenant cannot be separately metered for any reason, Tenant
shall pay Landlord as Additional Rent and in monthly installments at the time
prescribed for monthly installments of Base Rent, an annual amount, as
estimated by Landlord from time to time, which Tenant would pay for such
utility service if the same were separately metered to the Leased Premises
by the local utility company and billed to Tenant at such company's current
rates (including applicable taxes). The cost of any utility service supplied
to the Project or Common Areas by Landlord shall be included in Operating
Costs.
(b) Tenant shall not waste or permit the wasting of water nor shall
Tenant use water for purposes other than drinking, lavatory or toilet purposes
through fixtures installed by Landlord or by Tenant, with Landlord's consent.
Tenant shall pay Landlord for domestic water and hot water furnished or used
for any other purpose as Additional Rent, at rates charged by the utility
provider plus any applicable taxes and resellers' charges, and, in connection
therewith, Landlord may require tenant at Tenant's cost to install a submeter
to measure Tenant water usage. Tenant shall not introduce into the sewer
system any harmful or dangerous substances and shall not overload the sewer
system by abnormal usage.
<PAGE>
(c) Tenant agrees that Landlord shall not be liable in damages, by
abatement of rent or otherwise, for failure to furnish or for a delay in
furnishing any service or utility, whether the responsibility of Landlord or
others, if such failure or delay is occasioned, in whole or in part, by repairs,
renewals or improvements authorized by this Lease, by any strike, lockout or
other labor trouble, by inability to secure electricity, gas, water or other
fuel at the Building or Project after reasonable effort so to do, by any
accident or casualty whatsoever, by the act or default of Tenant or other
parties, or by any cause beyond the reasonable control of Landlord; and such
failures or delays shall never be deemed to constitute an eviction or
disturbance of the Tenant's use and possession of the Leased Premises or
relieve the Tenant from paying rent or performing any of its obligations
under this Lease. Notwithstanding anything to the contrary contained in this
Lease, if any utility to the Leased Premises is materially interrupted for a
period longer than five (5) days, and such material interruption is not
caused by Tenant's failure to pay for the utility, the Base Rent and
Additional Rent shall thereafter be abated until such material interruption
ends.
ARTICLE XVI
RIGHTS RESERVED TO LANDLORD
SECTION 16.1 - RIGHTS RESERVED TO LANDLORD
Without limiting any other rights reserved or available to Landlord
under this Lease, at law, or in equity, Landlord reserves the following
rights to be exercised at Landlord's election, without liability to Tenant
and without effecting an eviction or disturbance of Tenant's use or possession
and without giving rise to any claim for setoff or abatement of rent or
affecting any of Tenant's obligations under this Lease:
(a) upon 180 days prior notice, to change the street address and/or
name of the Building or of the Project;
(b) upon 24 hours notice, except in the case of an emergency, to
inspect the Leased Premises and to make repairs, additions or alterations,
whether structural or otherwise, to the Leased Premises, the Building or the
Project, or to any parts thereof including without limitation, to make
repairs, additions or alterations within the Leased Premises to mechanical,
electrical, and other facilities serving the Leased Premises or the Project,
to relocate or change corridors or entrances in and to the Building, to close
entrances, stairways and corridors, if any, and to interrupt or temporarily
suspend services or facilities;
(c) upon 24 hours notice, to show the Leased Premises to prospective
purchasers, mortgagees, or other persons having a legitimate interest in
viewing the same, and, at any time within one year prior to the expiration of
the Term to brokers or persons wishing to rent the Leased Premises; during the
last year of the Term, to place and maintain a "For Rent" sign in or on the
Leased Premises Building or the Project; and to place or maintain "For Sale"
signs on the Project and the exterior of the Building;
<PAGE>
(d) if vacant, or vacated during the last one hundred twenty (120)
days of the Term, to decorate, remodel, repair, alter or otherwise prepare
the Leased Premises for new occupancy; with prior written approval from
Tenant.
(e) to install, affix and maintain signs on the exterior and interior
of the Building (except signs within the Leased Premises not visible from
outside the Leased Premises);
(f) to grant to anyone the exclusive right and privilege to conduct
any business in the Building or the Project and such exclusive right and
privilege will be binding upon Tenant, provided such exclusive right shall
not operate to exclude Tenant or its affiliates, assignees or sublessees from
any use expressly permitted herein;
(g) to approve the weight, size and location of heavy equipment and
articles in and about the Leased Premises and the Building including, by way
of example but not of limitation, safes, vaults, cages, printing machinery,
computers, filing cabinets or libraries;
(h) to establish and require Tenant to comply with reasonable
security controls for the Building and Project and to otherwise take such
action or preventive measures for the safety or security of the Building and
the Project and its occupants; and
(i) to promulgate and establish such rules and regulations of uniform
application governing the use and operation of the Project, the Building and
the Leased Premises as are reasonably necessary for the orderly operation
thereof, and Tenant agrees, for itself, its employees, agents and invitees
to comply with such rules and regulations.
Landlord may enter upon the Leased Premises for any and all of said
purposes and may exercise any and all of the foregoing rights hereby reserved,
at any time and from time to time, without being deemed guilty or any eviction
or disturbance of Tenant's use or possession of the Leased Premises, and
without being liable in any manner to Tenant.
ARTICLE XVII
NOTICES
SECTION 17.1 - NOTICES
Any notice, request, demand or other document to be given or served
hereunder shall be in writing and shall be delivered in person with a receipt
requested therefor or sent by a recognized air courier service or by United
States registered or certified mail, return receipt requested, postage prepaid
and addressed, if to Tenant, at the Leased Premises or such other address as
Tenant shall have last designated by notice in writing to Landlord, and
addressed, if to Landlord, to the place then established for the payment of
rent, or such other address as Landlord shall have last designated by notice
in writing to Tenant and the same shall be effective (a) upon receipt or
refusal if delivered personally, (b) one (1) business day after depositing
with such overnight courier service, or (c) two (2) business days after
deposit in the mails, if mailed.
<PAGE>
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.1 - TENANT'S STATEMENT
Tenant shall furnish to Landlord from time to time, within ten (10)
days after request therefor from Landlord, a copy of Tenant's then most
recent audited and certified financial statements. If Tenant does not
ordinarily have audited and certified financial statements prepared, then the
foregoing obligation shall be satisfied by the delivery of Tenant's most
recent financial statements, certified as true and correct by a duly
authorized officer, general partner or owner of Tenant. Tenant agrees that
Landlord may deliver a copy of such statements to any purchaser of the
Building or Project.
SECTION 18.2 - ESTOPPEL CERTIFICATES
Tenant agrees at any time and from time to time, upon not less than ten
(10) business days' prior request from Landlord, to execute, acknowledge and
deliver to Landlord and to any other party designated by Landlord, in form
reasonably satisfactory to Landlord, a written statement certifying (if true)
that Tenant has accepted the Leased Premises, that this Lease is unmodified
and in full force and effect (or, if there have been modifications), that
Landlord is not in default hereunder (or stating any defaults claimed by
Tenant), the date to which the rental and other charges due hereunder have
been paid, that no alteration, addition, use, conduct or storage by Tenant, or
if officers, employees, agents licensees or invitees has occurred at the
Leased Premises or the Project that would require the filing or delivery of
a disclosure document upon the transfer of the real estate (such as, for
example, the Illinois Responsible Transfer Act of 1988) and such other
accurate certifications as may reasonably be required by Landlord. It is
intended that any such statement may be relied upon by and prospective
purchaser or mortgagee of the Leased Premises, Building or Project and their
respective successors and assigns.
SECTION 18.3 - RELATIONSHIP OF PARTIES
Nothing contained herein shall be deemed or construed to create the
relationship of principal and agent or of partnership or of joint venture, it
being understood and agreed that no provision in this Lease or any acts of the
parities hereto shall be deemed to create any relationship other than the
relationship of landlord and tenant.
SECTION 18.4 - LANDLORD'S EXPENSES
Tenant shall pay on demand Landlord's expenses, including reasonable
attorneys' fees, expenses and administrative hearing and court costs incurred
either directly or indirectly in enforcing any obligation of Tenant under this
Lease, in curing any default by Tenant, in connection with appearing,
defending or otherwise participating in any action or proceeding arising from
the filing, imposition, contesting, discharging or satisfaction of any lien or
claim for lien, in defending or otherwise participating in any legal
proceedings initiated by or on behalf of Tenant wherein Landlord is not
<PAGE>
adjudicated to be in default under this Lease, or in connection with any
investigation or review of any conditions or documents in the event Tenant
requests Landlord's approval or consent to any action of Tenant which may be
desired by Tenant or required of Tenant hereunder.
SECTION 18.5 - INTEREST ON UNPAID AMOUNTS
All amounts owed by Tenant to Landlord hereunder shall be deemed to be
Additional Rent and, unless otherwise provided herein, shall be paid within
ten (10) days from the date the Landlord renders a statement of account
therefor. All amounts shall bear interest from ten (10) days after the date
due until the date paid at the rate equivalent to three percent (3%) above the
rate then most recently announced by the First National Bank of Chicago, or
its successor, as its corporate lending base rate, as such corporate lending
base rate may change from time to time during the Term. The payment of such
interest shall not excuse or cure any default of Tenant under this Lease.
SECTION 18.6 - APPLICABLE LAW AND CONSTRUCTION
The laws of the State of Illinois shall govern the validity, performance
and enforcement of this Lease. The invalidity or unenforceability of any
provision of this Lease shall not affect or impair any other provision. The
headings of the several Articles and Sections contained herein are for
convenience only and do not define, limit or construe the contents of such
Articles or Sections.
SECTION 18.7 - DELAYS
Whenever a period of time is provided in this Lease for Landlord to do
or perform any act or thing, Landlord shall not be liable or responsible for
any delays due to strikes, lockouts, casualties, material shortages, acts of
God, war, governmental regulation or control or any other causes beyond the
reasonable control of Landlord and the time for performance specified herein
shall be extended for the amount of time Landlord is so delayed, provided that
Landlord shall use all reasonable efforts to remove the cause of such delay
and to resume the performance of any such act or thing.
SECTION 18.8 - ACCESS BY LANDLORD
Tenant shall permit Landlord and its agents, employees and contractors
to enter the Leased Premises upon such advance notice, if any, as is
reasonable under the circumstances for the purposes of inspecting the same,
of performing maintenance thereon, of making repairs, replacements, additions
or alterations thereto or to the Building, of shoring the foundations and
walls thereof, of erecting scaffolding and/or prospective purchasers, lenders
and tenants, and of placing "For Sale" or "For Rent" signs and notices
therein. Such repairs, replacements, additions and alterations shall be
performed in such reasonable manner as will minimize interference with the
conduct of Tenant's operations. Landlord shall retain pass keys for all
doors providing access to the Leased Premises or portions thereof, and Tenant
shall change no lock without the prior written consent of Landlord.
<PAGE>
SECTION 18.9 - BROKERAGE
Tenant warrants that it has had no dealings with any broker or agent
in connection with this Lease other than the Brokers named in the Schedule.
Tenant covenants to pay, hold harmless and indemnify Landlord from and
against any and all cost, expense or Liability for any compensation,
commissions or charges claimed by any agent or broker with which it has had
dealings or otherwise by reason of any breach of said warranty.
SECTION 18.10 - EXECUTION OF LEASE
No employee or agent of Landlord, of Landlord's beneficiary, of the
Agent or of Landlord's broker, if any, has authority to make or agree to
make any agreement or undertaking in connection with this Lease not set
forth in this written Lease. The submission of this document for examination
does not constitute an offer to lease, or reservation for, or option for, the
Leased Premises, and this document will become effective and binding only
upon execution and delivery by both the Landlord and the Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered
only by agreement in writing between Landlord and Tenant and no act or
omission of any employee or agent of Landlord, of Landlord's beneficiary, of
Agent or of Landlord's broker, if any, shall alter, change or modify any of
the provisions hereof.
SECTION 18.11 - SECURITY DEPOSITS
Tenant has deposited with Lessor the sum set forth in the Schedule as
"Security Deposit" as security for the faithful performance and observance by
Tenant of the provisions of this Lease and at all times during the Term of
this Lease said sum shall equal no less than one month's Base Rent. If
Tenant shall default in respect of any such provision, Landlord may use, apply
or retain the whole or any part of the security deposit to the extent required
for the payment of any rent and/or other charge or any other sum as to which
Tenant is in default or for any sum which Landlord may have expended or may be
required to expend by reason of Tenant's default, including, but not limited
to, any damages or deficiency in the reletting of the Leased Premises.
Landlord must provide written notice of its intent to allocate a portion of, or
increase the amount of the security deposit. Tenant will have five (5)
business days to cure before Landlord takes action against the security
deposit. In the case of any such application by Landlord, Tenant shall
deposit with Landlord from time to time within five (5) days after Landlord's
written demand therefor sufficient additional funds to restore such security
deposit to the amount set forth above. If Tenant shall fully and faithfully
comply with all of the conditions of this Lease, the Security Deposit shall be
returned to Tenant after the date fixed as the end of the Term and after
delivery to Landlord of entire possession of the Leased Premises with
ordinary wear and tear accepted. In no event shall the security be applied to
reduce any rent or other charge payable by Tenant.
<PAGE>
SECTION 18.12 - HEIRS, SUCCESSORS AND ASSIGNS
The covenants, agreements and obligations herein contained, except as
herein otherwise specifically provided, shall extend to, bind and inure to the
benefit of the parties hereto and their respective personal representatives,
heirs, successors and assigns.
SECTION 18.13 - SUBORDINATION
This Lease is and shall always be subject to the lien of any mortgage,
including a trust deed in the nature of a mortgage, which may now or hereafter
affect the Project, the Building or the Leased Premises, and to all renewals,
consolidations, replacements and extensions thereof; provided however, with
respect to any such mortgage executed after the date hereof, that the holder
of such mortgage agrees, in the event of foreclosure and so long as no uncured
default exists or other event has occurred which would entitle the Landlord to
terminate this Lease or Tenant's right to possession, that such holder shall
recognize this lease and not disturb the possession of the Tenant hereunder.
Tenant agrees to and does hereby attorn to the holder of any such mortgage,
or any purchaser upon foreclosure, or their successors and assigns, which
attornment shall be effective and self-operative without the execution of any
further instruments. Tenant hereby further agrees to execute such instruments
and assurances as Landlord or the holder of any such mortgage may deem
reasonably necessary to evidence the subordination of this Lease and Tenant's
attornment to such holder or purchaser.
SECTION 18.14 - PAYMENTS TO AFFILIATES
Nothing in this Lease shall be construed to prevent Landlord from
paying for services rendered or materials delivered with respect to the
Building, to the Project or to the Leased Premises (including, without
limitation, management services and contracting of capital improvements or
other capital repairs or construction items) by affiliates of Landlord or
its beneficiary or of the Agent provided that the fees or costs of such
services and materials are at market rates in the Chicago metropolitan area.
All such fees or costs paid by Landlord to such parties shall be deemed to
constitute Operating Costs on the same terms and conditions as if such fees
and costs were paid to parties without any affiliation with Landlord.
SECTION 18.15 - MEANING OF "RE-ENTRY" AND "LANDLORD"
The words "Re-enter" and "Re-Entry", as used in this Lease are
restricted to their technical legal meaning. The term "Landlord", as used
in this Lease, means only the landlord from time to time, and upon conveying
or transferring its interest, such conveying or transferring landlord shall
be relieved from any further obligation or liability pursuant to this lease.
<PAGE>
SECTION 18.16 - REMEDIES AND RIGHTS MAY BE EXERCISED BY LANDLORD IN ITS OWN
NAME; AUTHORITY TO EXECUTE THIS LEASE
All rights and remedies of Landlord under this Lease, or that may be
provided by law, may be exercised by Landlord in his own name individually,
or in its name by Agent or any other agent of the beneficiary thereof, and
all legal proceedings for the enforcement of any such rights or remedies,
may be commenced and prosecuted to final judgment and executed by Landlord in
its own name individually or in its name by Agent or by any other agent of
the beneficiary thereof. Tenant represents to Landlord that at has full
power and authority to execute this Lease and to Make and perform the
agreements herein contained, Tenant shall furnish to Landlord promptly upon
demand a corporate resolution or other appropriate documentation reasonably
requested by Landlord evidencing the due authorization of Tenant to enter into
this lease.
SECTION 18.17 - TIME OF ESSENCE
Time is of the essence of this Lease and all provisions herein relating
thereto shall be strictly construed.
SECTION 18.18 - TRUSTEE EXCULPATION
If this Lease is executed by a trust company, bank or other financial
institution (the "Trustee") pursuant to the authority granted under a land
trust agreement with such institution (the "Trust Agreement"), this Lease
shall be deemed to be executed by the Trustee, not personally but as Trustee
aforesaid, in the exercise of power and authority conferred upon and vested
in it as such Trustee, and under the express direction of the beneficiary of
the Trust Agreement to all provisions of which Trust Agreement this Lease is
expressly made subject. It is expressly understood and agreed that nothing
in this Lease contained shall be construed as creating any liability
whatsoever against said Trustee personally or against said beneficiary and in
particular, no personal liability to pay any indebtedness accruing hereunder
or to perform any covenant, either express or implied, or warranty herein
contained, or to keep, preserve or sequester any property of said Trust and
that all personal liability of said Trustee (and said beneficiary to the
extent permitted by law) of every sort, if any, is hereby expressly waived by
Tenant, and by every person now or hereafter claiming any right to security
hereunder; and that so far as the parties hereto are concerned, the owner of
any indebtedness or liability accruing hereunder shall look solely to the
trust estate from time to time subject to the provision of said Trust
Agreement for the payment thereof. It is further understood and agreed that
the said Trustee has no agents or employees and merely holds naked legal title
to the property herein described; that said Trustee has no control over, and
under this Lease assumes no responsibility for, the management or control of
such property, the upkeep, inspection, maintenance or repair of such property,
the collection of rents or the rental of such property, or the conduct of any
business which is carried on upon such property.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Lease on the day
and year first above written.
(SEAL) LANDLORD: LaSALLE NATIONAL TRUST as
aforesaid, by Draper and
Kramer, Ind., as Agent
ATTEST:
By:________________________ By:_________________________
(SEAL) TENANT: AMERICABLE, INC.,
a Minnesota corporation
ATTEST:
By:________________________ By:_________________________
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