LEASE AGREEMENT
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TABLE OF CONTENTS
ARTICLE PAGE
1.0 RENT & TERMS 2
2.0 SECURITY DEPOSIT 5
3.0 USE 6
3.5 Signs 7
3.6 Protecting Premises 7
3.7 Locks 7
3.8 Advertising 7
3.9 Utilities 7
3.10 Hazardous Materials 8
3.11 Defacing Premises 8
3.12 Overloading 9
3.13 Obstruction of Common Areas 9
3.14 Nuisances 9
4.0 ALTERATIONS, MAINTENANCE & REPAIRS 10
4.1 By Landlord 10
4.2 By Tenant 10
4.6 Carpeting 11
5.0 ASSIGNMENT & SUBLETTING 11
6.0 INSURANCE & INDEMNIFICATIONS 13
7.0 MORTGAGES, TITLE, LIENS 15
8.0 EMINENT DOMAIN & DESTRUCTION OF 17
PREMISES
9.0 SURRENDER OF PREMISES 19
10.0 LANDLORD'S REMEDIES 21
11.0 LANDLORD SHALL FURNISH 23
12.0 RIGHTS RESERVED TO LANDLORD 23
13.0 MISCELLANEOUS 24
13.1 Legal Fees 24
13.2 Additional Billing 25
13.3 Rent After Termination 25
13.4 Successors & Assigns 25
13.5 Notices 25
13.6 Entire Agreement 25
SIGNATURE PAGE 26
Exhibit "A" - Site Plan 27
Exhibit "B" - Space Plan 28
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THE LEASE AGREEMENT
THIS LEASE, made August 26, 1999 between
LANDLORD: Arthur J. Rogers & Co., as managing Agent for
the beneficiary of owner.
TENANT: Immtech International, Inc.
A Delaware Corporation
BUILDING: "150"
DEVELOPMENT: ROGERS EXECUTIVE PARKE II
per Exhibit A attached
SQUARE FOOTAGE
OF PREMISES: 10,600 rentable square feet
PREMISES: 150 Fairway Drive, Suites 148 & 150
Vernon Hills, Illinois 60061
TENANT'S SHARE OF
OF IMPROVEMENTS: $0
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the Premises described above and in Exhibit A attached hereto and made a part
hereof. In consideration thereof, the parties covenant and agree as follows:
Final acceptance of this Lease by the Landlord is contingent upon
(a) Tenant, providing to Landlord Tenant's current financial reports, credit
reports, and references in such form and detail as the Landlord may deem
necessary, and (b) approval of Tenant's credit, which approval shall be at
Landlord's sole discretion. all
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ARTICLE 1. RENT & TERM
1.0 Term
The Lease term is from November 15, 1999 to March 14, 2005. The
commencement of the Lease term shall be subject to the substantial completion of
the Premises pursuant to Section 1.9. The Lease term shall not commence until
Landlord has substantially completed tenant improvements and a certificate of
occupancy has been issued by the Village of Vernon Hills, Illinois.
1.1 Rental
Tenant shall pay to Landlord the sum of Seven Hundred Forty-three Thousand,
Three Hundred Seventy-seven and 80/100 DOLLARS ($743,377.80) as rent in
installments as follows:
From 11/15/99 to 03/14/00 in monthly installments of $0 and;
From 03/15/00 to 03/14/01 in monthly installments of $12,145.83 and;
From 03/15/01 to 03/14/02 in monthly installments of $12,145.83 and;
From 03/15/02 to 03/14/03 in monthly installments of $12,145.83 and;
From 03/15/03 to 03/14/04 in monthly installments of $12,755.33 and;
From 03/15/04 to 03/14/05 in monthly installments of $12,755.33
1.2 Additional Rent - Real Estate Tax and Tenant's Proportionate Share
In addition to Fixed Rent, Tenant shall pay to Landlord Tenant's
proportionate share (6.50%) ("Tenant's Proportionate Share") of all taxes and
assessments, general and special, and all other impositions, ordinary and
extraordinary, of any kind and nature whatsoever (or any substitution thereof),
which may be levied, assessed or imposed upon the Development (as constructed
from time to time) and Tenant's proportionate share of any and reasonable fees
and expenses incurred by Landlord in its efforts to reduce said taxes
(collectively "Real Estate Taxes"). If Landlord is successful in reducing said
taxes Tenant shall share, proportionately in such reduction.
The Landlord shall in good faith estimate the real estate taxes to be
incurred by the Landlord during each year of the Lease and a sum equal to
one-twelfth (1/12th) thereof shall be paid by the Tenant each month of the term
of this Lease.
Payment of additional rental for Tenant's proportionate share of real
estate taxes is due within ten (10) days following Tenant's receipt of the
invoice. Late payments are subject to late charges as included in Section 1.7.
Within ninety (90) days following receipt of the bill for real estate taxes for
the applicable year, Landlord shall furnish the Tenant with a copy of the same
and there shall be an adjustment between the Landlord
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and Tenant with payment to or a refund by Landlord, as the case may be, so that
the amount charged to the Tenant does not exceed Tenant's proportionate share of
the real estate taxes actually paid.
Upon the termination of the Lease, by lapse of time or otherwise, the
Tenant shall pay Tenant's proportionate share based upon the actual amount of
real estate taxes, if known, or if not known, based on an estimate of 110% of
the previous year's actual real estate taxes prorated for any partial calendar
year. This amount will be billed and due prior to the last day of occupancy.
1.3 Additional Rent - Common Area Expenses
Tenant shall pay to the Landlord as additional rent for the Premises,
Tenant's proportionate share (6.50%) of the expenses attributable to "Common
Areas" (hereafter defined). If, when billed, the Tenant's proportionate share
has been estimated, the Landlord shall, upon receipt of the bill for Common area
expenses for the applicable year compute the actual amount payable by the Tenant
and either refund overpayment or bill the Tenant for underpayment. Billings for
additional rental for Common Area Expenses are due within ten (10) days
following receipt of the invoice. Late payments are subject to late charges as
included in Section 1.7.
The Landlord shall in good faith estimate the "Common area expenses"
(hereafter defined) to be incurred by the Landlord during each year of the Lease
and a sum equal to one-twelfth (1/12th) thereof shall be paid by the Tenant each
month of the term of this Lease.
"Common area expenses" shall mean any and all reasonable expenses incurred
by the Landlord in connection with common areas within the Building and
Development, including, but not limited to, snow removal, landscaping, exterior
window washing, parking lot, roof, exterior wall, foundation, sidewalk repair
and maintenance, cleaning, fire and extended coverage insurance and liability
insurance against casualties in such Common Areas, management fees, all other
repairs and maintenance, depreciation of any equipment used in maintaining the
Common Area and other expenses usually and customarily charged to tenants as
Common Area expenses in like industrial developments, but excluding capital
expenditures of any kind. Landlord expressly reserves the right to determine the
manner in which these common areas shall be maintained. Landlord shall maintain
the common areas in a first-class manner.
Within ninety (90) days following the end of each calendar year during the
term of the Lease, Landlord will furnish Tenant with a Statement of Common area
expenses prepared and certified to by an independent certified public
accountant, which Statement shall be binding on Landlord and Tenant. Any
overpayment made by the Tenant shall be refunded to Tenant and any underpayment
shall be billed to and paid by Tenant. In the event of any dispute as to
Tenant's proportionate share of Common area expenses, the Tenant shall have the
right once each twelve (12) calendar month
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period, upon reasonable written notice, at its own expense, to inspect the
Landlord's accounting records relative to Common area expenses at Landlord's
accounting office during normal business hours. Unless Tenant shall take written
exception to any item included in Common area expenses for any period prior to
such inspection within fifteen (15) days following such inspection, all previous
statements shall be considered as final and accepted by the Tenant. Tenant shall
have the right to copy Landlord's records at Tenant's expense within Landlord's
office.
Upon the termination of the Lease, by lapse of time or otherwise, the
Tenant shall pay Tenant's proportionate share based upon the actual amount of
Common area expenses, if known, or if not known, based on an estimate of 110% of
the previous year's actual Common area expenses prorated for any partial
calendar year. This amount will be billed and due prior to the last day of
occupancy. If, when billed, the Tenant's proportionate share has been estimated,
the Landlord shall, upon receipt of the bill for Common area expenses for the
applicable year compute the actual amount payable by the Tenant and either
refund overpayment or bill the Tenant for underpayment.
1.4 Definition of Tenant's Proportionate Share
For sections 1.2 and 1.3 "Tenant's proportionate share" has been computed
by dividing 163,200 square feet (the total rentable area of the entire
development) into 10,600 square feet (the square footage of the leased
premises).
1.5 Place Due
All Fixed Rent, Tenant's proportionate share of real estate taxes and
Common area expenses and other sums due under this Lease shall be paid to
(Landlord) Arthur J. Rogers & Co. at Department 77-7258, Chicago, Illinois,
60678-7258 or at such other place as Landlord may from time to time direct in
writing.
1.6 Due Date
Fixed Rent is due in advance promptly on the first day of every calendar
month and Tenant's proportionate share of real estate taxes and Common area
expenses is due promptly as provided in Sections 1.2 and 1.3 without offset.
If the Lease commences and/or terminates on other than the last day of the
month, a prorated monthly installment shall be calculated based on a thirty (30)
day month.
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1.7 Late Charge on Past Due Rent
If rents are received later than five (5) days after the due date, Tenant
shall pay on demand a late charge equal to five percent (5%) of the late
installment, and five percent (5%) of each month thereafter until paid in full.
1.8 Prior Occupancy
If Tenant occupies the leased Premises prior to the beginning of the term
with Landlord's consent, all the provisions of this Lease shall be in full force
commencing at such occupancy. Rent for such period shall be based on the above
schedule; a prorated monthly installment shall be calculated on a thirty (30)
day month.
1.9 Delayed Occupancy
In the event that Landlord is prevented from completing the alterations
and improvements described in Exhibit "B" due to the failure of the prior tenant
to surrender possession of the Premises to the Landlord, work stoppages, labor
controversies, accidents or other causes beyond the reasonable control of
Landlord, Landlord shall not be liable to Tenant for damages by reason thereof,
nor shall Tenant be relieved from any obligation under this Lease, but the
rental shall abate based on the above schedule (a pro-rated monthly installment
shall be calculated on a 30 day month) until the said alterations and
improvements are completed. In such event, the term of this Lease shall
automatically be extended so as to include the full number of months provided
for by this Lease. Landlord shall be obligated to exercise all reasonable
efforts to deliver possession of the Premises on the Commencement Date. Provided
Tenant has properly executed this Lease, approved the space plan, and provided
all required information to Landlord and appropriate governing bodies pertaining
to its use of the Premises in a timely fashion, Tenant shall have the option to
terminate the Lease if Landlord cannot deliver possession by January 1, 2000.
Landlord shall be obligated to reimburse Tenant for any additional expenses
incurred (such as the amount of a holdover penalty at Tenant's current location)
due to the delay in delivery of possession beyond January 1, 2000, except in
situations beyond Landlord's control.
ARTICLE 2. SECURITY DEPOSIT
2.1 Security Deposit
Tenant shall deposit with Landlord, upon complete execution and delivery
of this Lease, the below-listed amount to be held by Landlord, without
obligation to pay interest, as security for Tenant's covenant to pay the rent
and perform all other obligations required under the terms and provisions
thereof. Landlord may commingle
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the security deposit with other funds of the Landlord. In the event of any
default on the part of Tenant, Landlord shall have the right to apply such
security deposit, or any portion thereof, to cure such default. In the event the
security deposit is reduced by reason of such application, then within five (5)
days after notice from Landlord, Tenant shall deposit with Landlord such sum as
may be necessary to restore the security deposit to its original amount.
Landlord shall refund the security deposit without deduction to Tenant within
thirty (30) days after the termination of this Lease, but if the security
deposit had been reduced to cure any default on the part of Tenant and has not
been restored to its original amount, only the remainder of the security
deposit, if any, shall be refunded to Tenant upon termination of this Lease.
2.2 Security Deposit Amount: $12,145.83
2.3 Security Deposit Transfer
If the Premises or Building is sold or otherwise conveyed by Landlord, the
security deposit shall be transferred to Landlord's successor, and if so, Tenant
hereby releases Landlord from any and all liability with respect to said deposit
and its application or return.
2.4 Security Deposit Increase
If Tenant is in default under this Lease more than four (4) times within
any twelve-month period, irrespective of whether or not such default is cured,
then, without limiting Landlord's other rights and remedies provided for in this
Lease or at law or equity, the Security Deposit shall automatically be increased
by an amount equal to the greater of:
a) two (2) times the original Security Deposit; or
b) three (3) months' Minimum Rent, which shall be paid by Tenant to
Landlord forthwith on demand.
ARTICLE 3. USE
3.1 Usage
Tenant shall use and occupy the Premises for office and laboratory with
small animal holding area for pharmaceutical development and for no other
purposes.
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3.2 Laws & Regulations
Tenant shall use and occupy the Premises and common areas subject to the
terms and conditions of this Lease, Tenant's compliance with the applicable
laws, ordinances, and regulations of any governmental agencies having
jurisdiction over the Tenant's business, the Building, common areas, and the
Premises, and in compliance with the reasonable rules and regulations that the
Landlord will prescribe from time to time.
3.3 Common Areas
For so long as Tenant is not in default, Landlord grants Tenant a
non-exclusive revocable (in the event of default) license to use and occupy in
common with others entitled thereto the common areas, which include sidewalks,
entrances, loading docks, parking areas, driveways, service roads, and any other
areas or facilities which Landlord, in its sole discretion, may designate for
common use ("Common Areas").
3.4 Quiet Enjoyment
For so long as Tenant is not in default, Tenant shall peaceably and
quietly hold and enjoy the Premises for the term of the Lease without hindrance
or interruption by Landlord, subject nevertheless to the terms and conditions of
this Lease.
3.5 Signs
A sign containing Tenant's name, of a size and design approved by
Landlord, may be placed on the front door entering the Premises and at the rear
door of the Premises. No other sign shall be affixed to any part of the
Building. Tenant's sign shall be installed by the Landlord at Tenant's expense.
3.6 Protecting Premises
Before leaving the Premises unattended, Tenant shall close and securely
lock all doors or other means of entry to the Premises and turn off non-required
utilities in the Premises.
3.7 Locks
Tenant shall not place additional locks upon any door or window or change
existing locks without the written consent of the Landlord. Landlord may remove
such locks, and the Tenant shall pay for any damages to the door or its jamb.
Duplicate keys are to be provided only by the Landlord, the cost of which shall
be paid by the Tenant.
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3.8 Advertising
Tenant shall not in any manner use the name of the Building for any
purpose other than that of the business address of the Tenant, or use any
picture or likeness of the Building without the express written consent of the
Landlord.
3.9 Utilities
The Tenant shall pay for all electricity, gas, water, sewer, telephone and
other utilities, including that used for heating and air conditioning, which are
used in the Premises during the lease term. Electricity, gas, and telephone are
separately metered and billed directly to Tenant by the utility companies. Water
and sewer are included in common area expenses. Landlord reserves the right to
require a separate water meter if Tenant's specific use of the Premises requires
a disproportionate amount of water. If the water or sewer service is interrupted
for more than five (5) consecutive business days, and such interruption is not
the result of circumstances beyond the Landlord's control, rent shall be abated
until such time as service is resumed. Tenant shall not overload the electrical
wiring of the Premises. All electric wiring and other utility piping must be
connected as directed by the Landlord. No boring, drilling or cutting for wires
is permitted without the Landlord's written consent. Landlord, at its cost, will
provide one "25 pair" telephone cable to the Premises and Tenant, at its
expense, shall extend all telephone wiring within the Premises in accordance
with plans and specifications and by contractors approved by Landlord.
3.10 Hazardous Materials or Operations
(a) Tenant shall not use or permit to be brought into the Premises or
Building any flammable liquids or any explosive or other articles
deemed hazardous to persons or property except as shown on Exhibit
"C" (Permitted Materials"). Tenant shall be permitted to modify the
schedule of Permitted Materials in order to add additional materials
not set forth on Exhibit "C" that may be stored and used by Tenant
on the Premises, provided that Tenant has notified Landlord and
obtained all required permits and approvals from any governmental
entity with jurisdiction over the use, storage and disposal of such
materials;
(b) Tenant agrees that no portion of the Premises shall be used for the
storage or disposal of any toxic or hazardous waste, material, or
substances except for Permitted Materials;
(c) Tenant agrees to comply with all applicable laws, statutes and
ordinances concerning toxic or hazardous waste, material or
substance and any rules and regulations promulgated by the
Metropolitan Sanitary District of
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Illinois, Federal and State Environmental Protection Agencies and
other agencies of government having jurisdiction over such matters;
(d) Tenant warrants and represents that the business to be conducted by
the Tenant at the Premises does not require the use of any toxic or
hazardous materials or substances and no toxic or hazardous waste is
created as a by-product except for Permitted Materials; and
(e) Tenant agrees to indemnity and hold harmless the Landlord from any
and all liability, cost and expense, including attorneys' fees, in
connection with complying with any environmental laws, statutes and
ordinances, or any regulation of rules of the Metropolitan Sanitary
District of Illinois, Federal and State Environmental Protection
Agencies or other agencies of government as a result of Tenant's use
of the Building, Premises and Common Areas.
The agreements contained herein are a material inducement for the Landlord
to lease the Premises to the Tenant and shall survive the termination of this
Lease, whether by lapse of time or otherwise.
3.11 Defacing Premises
Tenant shall not place anything or allow anything to be placed in the
Premises near the glass of any other door, partition, wall or window which may
be unsightly from outside the Premises, and Tenant shall not place or permit to
be placed any article of any kind on any window ledge or on the exterior sills.
Tenant shall not do any painting or decorating in the Premises or make, paint,
cut or drill into, drive nails, screws or other fasteners into or in any way
deface any part of the Premises or the Building without the written consent of
Landlord, except for routine decorating.
3.12 Overloading
Tenant shall not overload any floor or hang any object from the ceiling or
roof supports.
3.13 Obstruction of Common Areas
Tenant, its agents and suppliers shall not permit merchandise, supplies,
equipment or other effects to be left in the common areas of the Building,
except with Landlord's permission and if required by fire or sanitation
regulations.
3.14 Nuisances
Without the written permission of Landlord, Tenant shall not:
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a) use the Premises for housing, lodging or sleeping purposes;
b) permit preparation of food in the Premises or permit food to be
brought into the Premises for consumption therein (warming of coffee
and individual lunches and snacks of employees excepted);
c) place any antenna on the roof or on or in any part of the inside or
outside of the Building other than the inside of the Premises;
d) operate or permit to be operated any musical or sound device inside
or outside the Premises, which may be heard outside the Premises;
e) operate any electrical device from which may emanate electrical
waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere;
f) make or permit any objectionable noise or odor to emanate from the
Premises;
g) do anything in or about the Building tending to create or maintain a
nuisance or do any act tending to injure the reputation of the
Building;
h) bring or permit to be in the Building any animal or bird (except a
dog in the company of a blind person), except for small animal
research;
i) Tenant shall not permit the storage or repair of any motorized
vehicle inside or outside the Premises.
ARTICLE 4. ALTERATIONS, MAINTENANCE & REPAIR
4.1 Alterations by Landlord
Landlord agrees to make the alterations and improvements to the Premises
and to prepare the same for Tenant's occupancy as described on Exhibit B, if
any.
4.2 Alterations by Tenant
Tenant shall not make any installation or alteration in or improvement,
addition or demolition to the Premises without the prior written approval of
Landlord, and if Landlord shall approve, all such work is subject to any
reasonable restrictions to preserve intact the architectural design and
structural integrity of the Building. Such work shall be performed at the
Tenant's expense by employees of or licensed contractors approved or employed by
the Landlord and in accordance with applicable regulations and codes.
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4.3 Ownership of Alterations
All installations, alterations, improvements or additions to the Premises
(other than Tenant's personal property and trade fixtures) made by the Landlord
or Tenant shall become the Landlord's property and shall remain in or upon the
Premises upon termination of the Lease except as provided in Article 9. Landlord
shall not unreasonably delay or withhold its consent to any alterations or to
contractors retained by Tenant to perform such alterations. Landlord shall
advise Tenant prior to the installation of any approved alteration whether
Landlord will require removal of the alteration at the expiration of the Lease.
Tenant shall be obligated to pay only reasonable costs for the removal of
alteration and repair of the Premises if such work is completed by Landlord or
Landlord's contractor. Landlord grants Tenant permission to install a roof vent
and laboratory equipment and cabinetry, subject to Landlord's review. Landlord
reserves the right to determine which contractor will make the roof penetration.
Tenant shall be responsible for the removal of said vent and laboratory
equipment and cabinetry, and must restore and repair the Premises to its
original condition at the expiration of the Lease.
4.4 Maintenance & Repairs
Landlord shall keep the Building including the roof, exterior walls,
foundations and the common areas in a first-class manner or in a manner
consistent with other comparable commercial building in the same general
vicinity, and repair with the Tenant obligated for Tenant's proportionate share
per Section 1.3. The cost of maintenance or repairs wholly or partially caused
by the negligence or act of the Tenant or any of its agents, visitors, licensees
or employees or by Tenant's breach of any provision of this Lease shall be borne
by the Tenant.
4.5 Maintenance by Tenant
Tenant, at its own expense, shall keep the interior of the Premises in
good repair, decorated and in tenantable condition during the entire term of the
Lease and shall promptly and adequately repair all damage to the Premises using
labor and material approved by Landlord. Tenant shall repair and maintain the
heating, air conditioning, ventilating, electrical, plumbing equipment and
services within the Premises; Landlord represents and warrants that all of the
foregoing systems and equipment shall be in good working order on the
commencement date. In the event Tenant fails or refuses to maintain Premises or
make such repairs or replacements, Landlord may (but shall not be obligated to),
following five (5) days prior written notice to Tenant and Tenant's failure to
cure within such period, make such repairs or replacements, and the cost thereof
shall be considered additional rent, payable by Tenant upon demand.
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Landlord shall warrant and guarantee, at it's sole expense, the heating
and air conditioning equipment within the demised premises during the first
twelve (12) months of this Lease, provided that Tenant enters into a
preventative maintenance contract with a qualified heating and air conditioning
contractor to perform preventative maintenance to the equipment at Tenant's sole
expense.
Furthermore, provided Tenant has contracted with a qualified heating and
air conditioning contractor for preventative maintenance, Landlord and Tenant
shall prorate the cost of any repair or replacement of the equipment upon the
percentage of time the Tenant had use of the equipment vs the age of the
equipment at the time of failure.
4.6 Carpeting
Intentionally deleted.
4.7 Condition of Premises
The Tenant's acceptance of possession of the Premises shall be conclusive
evidence that the Premises and Building were then in good order and satisfactory
condition, subject to punchlist items and latent defects. Tenant shall submit a
punchlist of patent defects observed with respect to the condition of the
Premises within thirty (30) days of possession and of latent defects within a
reasonable period of time after the commencement of the Lease term. Said
punchlist items shall be corrected by Landlord within thirty (30) days of
notification by Tenant, unless items cannot be corrected within said thirty (30)
days due to circumstances beyond Landlord's control. In such case, an extension
of time shall be granted, provided Landlord has initiated the correction.
ARTICLE 5. ASSIGNMENT & SUBLETTING
5.1 Assignment & Subletting
Tenant shall not assign or pledge this Lease or sublet the whole or any
part of the Premises, whether voluntarily or by operation of law, or permit the
use or occupancy of the Premises by anyone other than Tenant, without the prior
written consent of Landlord, which shall not be unreasonably withheld or
delayed. Such restrictions shall be binding upon any assignee or subtenant to
which Landlord has consented. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain fully liable for the payment of the
rent specified herein and for compliance with all of its other obligations under
the terms, provisions and covenants of this Lease.
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5.2 Written Notice
The Tenant shall give written notice to Landlord of the desire to sublet.
5.3 Collection of Rent
Landlord may, at its option, collect directly from such assignee or
subtenant all the rents under such assignment or sublease. No such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder.
5.4 Landlord's Option
In addition to but not in limitation of Landlord's right to approve of any
subtenant or assignee, Landlord shall have the option, in its sole discretion,
in the event of any proposed subletting of less than the entire Premises, to
release Tenant from all liability as to that part of Premises so sublet or
assigned, effective as of the date that such Sublessee or Assignee shall take
possession thereof. If Landlord exercises such option, Landlord shall give
Tenant written notice within thirty (30) days following Landlord's receipt of
Tenant's notice of its intention to assign or sublet and requesting Landlord's
approval thereof. In the event that Landlord elects to terminate this Lease as a
part of Premises, the rent required to be paid therefore during the unexpired
term hereof shall abate based upon the ratio that the total square footage of
the part of the Premises so sublet bears to the total original square footage of
the Premises.
5.5 Commissions
Notwithstanding the provisions of Section 5.4, Tenant shall, at Tenant's
sole cost and expense, discharge in full any outstanding commissions or
obligations which may be due to any real estate broker retained by Tenant or its
assignee or sublessee by reason of any assignment or subletting of Premises or
any part thereof with the consent of Landlord.
5.6 Assignments to Successor Corporation
Notwithstanding the provisions of the above paragraphs, Tenant may,
without Landlord's consent, assign this Lease to any corporation succeeding to
substantially all the business and assets of Tenant by merger, consolidation,
purchase of assets or to any corporation or entity which is a subsidiary or
division of Tenant, provided that the following conditions are satisfied: (a)
the total assets and net worth of such assignee
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shall be equal to or more than that of Tenant immediately prior to such
transactions; (b) Tenant is not then in default hereunder; and (c) such
successor shall execute and deliver to Landlord an instrument in writing fully
assuming all the obligations and liabilities imposed upon Tenant hereunder,
together with copies of appropriate financial reports of the successor
corporation.
ARTICLE 6. INSURANCE & INDEMNIFICATIONS
6.1 Tenant's Insurance
Tenant shall, at its sole cost and expense, maintain insurance coverage
insuring Tenant's personal property against any loss or damage by perils
generally included in Fire and Extended Coverage Insurance policies and,
further, shall procure and maintain adequate Public Liability and Property
Damage insurance and Workmen's Compensation insurance of statutory limits. At
the request of Landlord, Tenant shall furnish Certificates of such insurance
policies, which Certificates shall provide for not less than ten (10) days prior
notice to Landlord in the event of cancellation or material modification
thereof.
Landlord maintains general liability insurance in the amount of $1,000,000
per occurrence and $2,000,000 in aggregate.
6.2 Increase in Insurance Premiums
In the event of any increase in the Landlord's insurance premiums due to
the unusual nature or hazardous operation of the Tenant's business, the Tenant
shall pay Landlord an amount equal to the increase of said insurance premium
provided, however, that this Section 6.2 shall not be deemed to be a waiver of
the right of Landlord to prohibit any use of Premises other than as specified in
Section 3.1.
6.3 Damage by Tenant
Tenant agrees to pay for all damage done to the Premises or the Building
by Tenant and its officers, agents and employees or any other person permitted
in the Premises by Tenant, other than same resulting from Landlord's acts,
agents and employees, or negligence.
6.4 Insurance Regulations
Tenant, at its sole expense, shall comply with any and all requirements of
any insurance organization or company necessary for the maintenance of
reasonable fire
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and public liability insurance covering the Premises and the Building.
6.5 Indemnification of Landlord
Except for Landlord's negligence, Tenant will indemnify and defend and
hold harmless Landlord and its beneficiaries, agents, representatives, and
employees from and against any and all claims, actions, damages, liability and
expense with respect to injury to persons, including loss of life and damage to
property including the loss of use thereof arising from or out of any occurrence
in, upon, or at the Premises or the Building, or the occupancy or use by Tenant
of the Premises or any part thereof, or the Building or any part thereof,
occasioned wholly or in part by any act or omission of Tenant, their agents,
contractors, employees, invitees and servants, provided, however, that same
shall not have been caused by or resulted from Landlord's acts, agents and
employees, or negligence. In the event Landlord is made party to any litigation
commenced by or against Tenant, then Tenant shall indemnify, defend and hold
Landlord or their agents, successors, representatives, and employees harmless
therefrom and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by them or any of them in connection with such litigation,
other than same resulting from Landlord's acts or negligence, or the acts or
negligence of Landlord's employees, agents, contractors, invitees and servants.
Except for Tenant's negligence, Landlord will indemnify and defend and
hold harmless Tenant and its beneficiaries, agents, representatives, and
employees from and against any and all claims, actions, damages, liability and
expense with respect to injury to persons, including loss of life and damage to
property including the loss of use thereof arising from or out of any occurrence
in, upon, or at the Premises or the Building, or the occupancy or use by
Landlord of the Premises or any part thereof, or the Building or any part
thereof, occasioned wholly or in part by any act or omission of Landlord, their
agents, contractors, employees, invitees and servants, provided, however, that
same shall not have been caused by or resulted from Tenant's acts, agents and
employees, or negligence. In the event Tenant is made party to any litigation
commenced by or against Landlord, then Landlord shall indemnify, defend and hold
Tenant or their agents, successors, representatives, and employees harmless
therefrom and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by them or any of them in connection with such litigation,
other than same resulting from Tenant's acts or negligence, or the acts or
negligence of Tenant's employees, agents, contractors, invitees and servants.
6.6 Non-Liability of Landlord
Landlord shall not be liable for any damage to property of Tenant or of
others located on the Premises or elsewhere in the Building, nor for the loss of
or damage to any property of Tenant or of others by theft or otherwise, unless
caused by or resulting from the acts or negligence of Landlord, or from the acts
or negligence of Landlord
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employees, agents, contractors, invitees and servants. Except for Landlord's
acts or negligence or the acts or negligence of its agents, employees,
contractors, invitees, and servants, Landlord shall not be liable for any injury
or damage to persons or property resulting from fire, explosion, falling
plaster, gas, electricity, water, rain or snow leaks from any part of the
Premises or elsewhere in the Building or leak backups from the pipes, appliances
or plumbing works or from the roof, street or subsurface or from any other place
or by dampness or by any other cause of whatever nature. Landlord shall not be
liable for any such damage caused by other tenants or persons in the Premises or
elsewhere in the Building, occupants of adjacent property of the Building or the
public or caused by construction operations. All property of Tenant kept or
stored on the Premises or elsewhere in the Building shall be so kept or stored
at the risk of Tenant only, and Tenant shall hold Landlord harmless from any
claims arising out of damage to the same unless such damage shall be caused by
acts or negligence of Landlord or acts or negligence of its of Landlord's
agents, employees, contractors, invitees, and servants.
6.7 Mutual Waiver of Subrogation Rights
Except for Landlord's negligence, agents and employees, or negligence
whenever any loss, cost, damage or expense resulting from fire, explosion or any
other casualty is incurred by either of the parties to this Lease in connection
with the Premises or the Building, and such party is then covered in whole or in
part by insurance with respect to such loss, cost, damage or expense, then the
party so insured hereby releases the other party from any liability it may have
on account of such loss, cost, damage, or expense to the extent of any amount
recovered by reason of such insurance and waives any right of subrogation which
might otherwise exist in or accrue to any person on account thereof, provided
that such release of liability and waiver of the right of subrogation shall not
be operative in any case where the effect thereof is to invalidate such
insurance coverage or increase the cost thereof (provided that in the case of
increased cost, the other party shall have the right within thirty (30) days
following written notice to pay such increased cost, thereupon keeping such
release and waiver in full force and effect).
6.8 Interruption of Services
Landlord does not warrant that any of the services to be provided by
Landlord pursuant to Article 11 following, or any other service to be provided
by Landlord will be free from interruptions caused by repairs, renewals,
improvements, changes of service, alterations, work stoppage, labor
controversies, accidents, inability to obtain fuel, electricity, water supplies
or other cause beyond the reasonable control of Landlord. No such interruption
of service shall be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable to
Tenant for damages, by abatement of rent or otherwise, or relieve Tenant from
performance of Tenant's obligations under this Lease. Tenant hereby waives and
releases all claims against Landlord for damages for interruption or stoppage of
service.
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Tenant shall have the right to terminate the Lease if the Premises are
untenantable for more than thirty (30) days after interruption of services,
except as provided in 8.2. Rent shall abate if services are interrupted for more
than five (5) consecutive business days.
ARTICLE 7. MORTGAGES, TITLE, LIENS
7.1 Mortgages - Subordination
This Lease Agreement and the rights of Tenant pursuant hereto shall, at
all times, be subject and subordinate only to the lien of a First Mortgage at
any time placed on the Building or Premises. Tenant shall, upon the written
request of any First Mortgagee execute such instruments or documents as may be
reasonably required at any time and from time to time to subordinate the rights
and interest of Tenant herein to the lien of any such First Mortgage. At the
election of the First Mortgagee, this Lease shall not be terminated or affected
by any proceedings instituted to foreclose the lien of any First Mortgage, and
this Lease shall continue in full force and effect, notwithstanding that any
such First Mortgagee or any person claiming by, through or under any such First
Mortgagee shall succeed to the title of Landlord by foreclosure or Deed in lieu
of foreclosure, and in any such event, Tenant agrees to attorn to any such First
Mortgagee or its successors and assigns. Landlord shall use its best efforts to
obtain a non-disturbance agreement.
Should any First Mortgage be foreclosed, or in the event that the title of
Landlord shall be conveyed to any such First Mortgagee by Deed in lieu of
foreclosure, no such First Mortgagee, purchaser at such foreclosure sale or
their successors or assigns shall be:
a) liable for any act or omission of any prior Landlord;
b) subject to any off-set or defense which Tenant may have against any
prior Landlord; and
c) bound by a prepayment of rent or other payments made to Landlord by
Tenant for more than the current month.
7.2 Estoppel Certificate
Tenant agrees that upon not less than fifteen (15) days prior notice from
Landlord, Tenant will deliver to Landlord or to such other person as Landlord
shall designate in such notice, a statement in writing in form satisfactory to
Landlord certifying among other matters:
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a) that the Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and
effect as modified and identifying such modifications);
b) that Tenant is in possession of the Premises and is paying all
rental payments required by this Lease;
c) that no more than one month's rent (excluding the Security Deposit,
if any) has been paid in advance;
d) that all work required to be performed by Landlord under this Lease
has been completed;
e) the Commencement Date and expiration date of this Lease; and
f) that insofar as Tenant knows, Landlord is not in default under this
Lease (or, if Tenant has knowledge of any default, a statement of
the nature thereof).
7.3 Modifications Required by Mortgagee
If any Mortgagee requires a modification or modifications of this Lease
and such modification or modifications will not result in any increased cost or
expense to Tenant or in any other way substantially alter the rights and
obligations of Tenant hereunder, Tenant shall, upon Landlord's request, execute
the appropriate instrument or instruments effecting such modification or
modifications.
7.4 Landlord's Title
Landlord's title is and always shall be paramount to the title of Tenant.
Nothing herein contained shall empower Tenant to do any act which can, shall or
may encumber the title of Landlord.
Tenant shall not permit any mechanic's liens to be filed against the
Premises or the Building by reason of services or materials supplied or claimed
to have been supplied in connection with any work done in the Premises at the
direction of Tenant. If any such mechanic's lien shall at any time be filed,
Tenant shall cause the same to be discharged of record or sufficient bond posted
over same within thirty (30) days after receipt of notice from Landlord. If
Tenant shall fail to discharge or post sufficient bond over such mechanic's lien
within such period, then, in addition to any other right or remedy, Landlord
may, but shall not be obligated to, discharge the lien either before or after
investigating it.
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ARTICLE 8. EMINENT DOMAIN & DESTRUCTION OF PREMISES
8.1 Eminent Domain
If the entire Building or if any substantial part of the Premises shall be
taken or condemned by any authority for any public use or purpose, the term of
this Lease shall end upon, and not before, the date when the possession of the
part so taken shall be required for such use or purpose and without
apportionment of the condemnation award. The Tenant shall have no right to share
in such award or seek an award for loss of its leasehold interest, the right of
Tenant, if any, in and to such award being hereby assigned to Landlord. Tenant
shall have the right to petition a court for a separate condemnation award
provided that any such award does not reduce an award made to the Landlord. All
rent shall be apportioned as of the date of such termination.
8.2 Total or Partial Destruction
In the event that Premises or other parts of the Building shall be
destroyed or so damaged by fire, explosion, windstorm or other casualty
("Casualty") so as to be:
a) rendered untenantable, Landlord may, at its election, either:
i) terminate this Lease as of the date of Casualty by written
notice thereof to Tenant within forty-five (45) days following
the date of Casualty, in which event all rent shall be
apportioned on a per diem basis and paid by Tenant to the date
of Casualty; or
ii) proceed with all due diligence to repair, restore or
rehabilitate the Premises or the Building, as the case may be,
to the condition existing immediately prior to Casualty
("Restoration Work") and to complete within 150 days of the
date of the Casualty, in which event this Lease shall not
terminate, and rent shall equitably abate on a per diem basis
during the period of Restoration Work to the extent that
Tenant is denied use of the Premises by reasons of Restoration
Work;
Landlord shall proceed with all due diligence to perform or
cause Restoration Work to be performed and completed within
(90) days of the date of the Casualty, in which event rent
shall abate in proportion to the non-usability of the Premises
during the period of Restoration Work;
b) partially damaged but not rendered untenantable, Landlord shall
estimate the amount of time it will take to restore the Premises and
shall
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proceed with all due diligence to perform or cause Restoration Work
to be performed and complete within 150 days of the date of the
Casualty, in which event rent shall abate in proportion to the
non-usability of the Premises during the period of Restoration Work;
PROVIDED, HOWEVER, that if Casualty shall occur at any time during the
last year of the term of this Lease, Landlord or Tenant shall have the right, at
its election, to terminate this Lease as of the date of Casualty, by written
notice thereof to the other within thirty (30) days following the date of
Casualty.
Notwithstanding the foregoing, except for a casualty caused by Landlord's
negligent acts or omissions or willful misconduct, in no event shall Landlord
be:
a) responsible for any loss or damage incurred by Tenant or any other
person, firm or corporation by reason of goods, wares, merchandise,
furniture, fixtures and equipment situated within Premises and
damaged by reason of Casualty;
b) liable or responsible for any other damage incurred by Tenant by
reason of Casualty; or
c) for any delays in Restoration Work caused by labor controversies,
riots, acts of God, national emergencies, acts of a public enemy,
governmental laws or regulations, inability to procure materials or
labor, or both, or any other cause beyond the control of Landlord.
ARTICLE 9. SURRENDER OF PREMISES
9.1 Condition of Premises
Tenant shall yield to Landlord possession of the Premises in as good
condition as when the Tenant took possession, subject to ordinary wear and tear
and subject to casualty or damage not caused by Tenant, in accordance with the
provision of this Lease. If the Tenant fails to yield the Premises in as good
condition as when the Tenant took possession, normal wear and tear excepted, the
Landlord may restore the Premises to such condition, and Tenant shall pay the
cost thereof.
9.2 Alterations of Premises
Alterations of the Premises remain the property of the Landlord in
accordance
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with the provisions of this Lease. In the event Landlord so directs in writing
prior or within thirty (30) days after termination of this Lease, Tenant shall
promptly remove Tenant's alterations (but not alterations made by Landlord) and
repair any damage to the Premises. If Tenant fails to repair such damage, the
Landlord may restore the Premises, and Tenant shall pay the cost thereof.
Landlord shall advise Tenant prior to the installation of any approved
alteration whether Landlord will require
removal of the alteration at the expiration of the Lease. Tenant shall be
obligated to pay only reasonable costs for removal of alteration and repair of
the Premises if such work is completed by Landlord or Landlord's contractor.
9.3 Tenant's Trade Fixtures
Any trade fixtures which are attached to the Premises, with Landlord's
prior written consent, may be removed by Tenant provided that Premises are
restored by Tenant to the condition prior to attachment. If the Tenant fails to
restore such damage, the Landlord may restore the Premises, and Tenant shall pay
the cost thereof.
9.4 Property Presumed Abandoned
All Tenant's trade fixtures and personal property not removed from the
premises upon termination shall be conclusively presumed to have been abandoned
by the Tenant, and title thereto shall pass to Landlord as by a bill of sale.
The Tenant shall pay for the cost of removal of such abandoned items.
9.5 Surrender of Keys
Tenant shall surrender all keys to Premises and Building and all data
relative to combination locks and security systems in Premises.
9.6 Notification of Surrender
Not less than thirty (30) days prior to the last day of the term of this
Lease, the Tenant shall notify Landlord of the last day of occupancy of the
Premises in writing. On the last day of occupancy, Landlord and Tenant shall
review the physical condition of the Premises for the purpose of assessing
needed repairs to the Premises.
9.7 Holdover by Tenant
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination, then
Landlord may, at its option at any time thereafter, serve written notice upon
Tenant that such holdover constitutes any one of:
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a) intentionally deleted; or
b) creation of a month-to-month tenancy upon the terms and conditions
set forth in this Lease; or
c) creation of a tenancy at sufferance in any case upon the terms and
conditions set forth in this Lease;
PROVIDED, HOWEVER, that the monthly rental (or daily rental under (c))
shall, in addition to all other sums which are to be paid by Tenant hereunder,
be equal to double the rental being paid monthly to Landlord under this Lease
immediately prior to such termination (prorated in the case of (c) on the basis
of a 360-day year for each day Tenant remains in possession). If no such notice
is served, then a tenancy at sufferance shall be deemed to be created at the
rent in the preceding sentence. Tenant shall also pay to Landlord all damages
sustained by Landlord resulting from retention of possession by Tenant,
including all loss or damage sustained or incurred by Landlord by reason of any
new lease to or the loss of any proposed subsequent tenant for any portion of
the Premises. The provisions of the paragraph shall not constitute a waiver by
Landlord of any right of reentry; nor shall receipt of any rent or any other act
in apparent affirmance of the tenancy operate as a waiver of the right to
terminate this Lease for a breach of any of the terms, covenants or obligations
therein on Tenant's part to be performed.
ARTICLE 10. LANDLORD'S REMEDIES
All rights and remedies of Landlord herein enumerated shall be cumulative,
and none shall exclude any other right or remedy allowed by law. Landlord shall
be under an affirmative obligation to mitigate its damages.
10.1 If any voluntary or involuntary petition or similar pleading under any
section or sections of any bankruptcy act shall be filed by or against Tenant,
or any voluntary or involuntary proceedings in any court shall be instituted to
declare Tenant insolvent or unable to pay Tenant's debts, or Tenant makes an
assignment for the benefits of its creditors, or a trustee or receiver is
appointed for Tenant or for the major part of Tenant's property, then in such
event, Landlord may, if Landlord so elects and with or without notice of such
election and with or without entry or other action by Landlord, forthwith
terminate this Lease and, notwithstanding any other provisions of this Lease,
Landlord shall forthwith upon such termination be entitled to recover damages in
an amount equal to the then present value of the rent specified in Article I of
this Lease for the residue of the stated term hereof, less the fair market
rental rate of the Premises for the remainder of the term.
10.2 If Tenant defaults in the prompt payment of rent and such default shall
continue for five (5) or more days after the same be due and payable or in the
performance or
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observance of any other provisions of this Lease and such other default shall
continue for thirty (30) or more days after notice thereof shall have been given
to Tenant with further extensions for Tenant's diligent attempts to cure any
such defaults, or if the leasehold interest of Tenant be levied upon under
execution or attached by process of law, or if Tenant abandons the leased
Premises, then and in any such event, Landlord, if it so elects with or without
notice or demand forthwith, or at any time thereafter while such default
continues, either may terminate Tenant's right to possession without terminating
this Lease or may terminate this Lease.
10.3 Upon termination of this Lease, whether by lapse of time or otherwise, or
upon any termination of the Tenant's right to possession without termination of
this Lease, the Tenant shall surrender possession and vacate the leased Premises
immediately and deliver possession thereof to the Landlord, and hereby grants to
the Landlord full and free license to enter into and upon the leased Premises in
such event with process of law and to repossess the leased Premises and to expel
or remove the Tenant and any others who may be occupying or within the leased
Premises and to remove any and all property therefrom, using such force as may
be necessary without being deemed in any manner guilty of trespass, eviction,
forcible entry or detainer, or conversion of property, and without relinquishing
the Landlord's rights to rent or any other right given to the Landlord hereunder
or by operation of law. The Tenant agrees that the simple breach of any covenant
or provisions of this Lease by the Tenant shall, of itself, constitute a
forcible detainer by the Tenant of the demised Tenant covenants and agrees to
pay to Landlord after such termination and reentry, at Landlord's option:
a) at the end of each month of the demised term, the difference, if
any, between the rent actually received by Landlord from said
demised Premises during such month and the rent agreed to be paid by
the terms of this Lease during such month, together with the
reasonable expenses of re-letting and altering the improvements on
such demised Premises, together with reasonable commissions and
attorney's fees; or
b) damages in an amount equal to the then present value of the rent
specified in this Lease, as adjusted for taxes and expenses, for the
residue of the stated term hereof, less the fair rental value of the
Premises for the residue of the stated term.
10.4 If Tenant abandons the Premises and ceases to pay rent or otherwise
entitles Landlord to so elect and Landlord elects to terminate the Tenant's
right to possession only without terminating the Lease, the Landlord may, at the
Landlord's option, enter into the leased Premises, remove the Tenant's signs and
other evidences of tenancy and take and hold possession thereof as in Paragraph
10.3 of this Article, provided, without such entry and possession terminating
the Lease or releasing the Tenant in whole or in part from the Tenant's
obligation to pay the rent hereunder for the full term, and in any such case the
Tenant shall pay forthwith to the Landlord a sum equal to the then present value
of the entire amount of the rent specified in Article I of this Lease for the
residue of the stated term, less the fair market rental rate of the Premises for
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the remainder of the term, plus any other sums then due hereunder. Upon and
after entry into possession without termination of this Lease, the Landlord may,
but need not, re-let the leased Premises or any part thereof for the account of
the Tenant to any person, firm or corporation other than the Tenant for such
rent, for such time and upon such terms as the Landlord in the Landlord's sole
discretion shall determine, and the Landlord shall not be required to accept any
tenant offered by the Tenant or to observe any instructions given by the Tenant
about such re-letting. In any such case, the Landlord may make repairs,
alterations and additions in or to the leased Premises and redecorate the same
to the extent deemed by the Landlord necessary or desirable and the Tenant
shall, upon demand, pay the reasonable cost thereof, together with the
Landlord's expenses of the re-letting including, without limitation, any
reasonable broker's commission incurred by the Landlord. If the consideration
collected by the Landlord upon any such re-letting for the Tenant's account is
not sufficient to pay the full amount of unpaid rent reserved in this Lease,
together with the costs of repairs, alterations, additions, redecorating and the
Landlord's expenses, the Tenant shall pay to the Landlord the amount of each
deficiency.
10.5 If Tenant violates any of the terms and provisions of this Lease or
defaults in any of its obligations hereunder other than the payment of any sum
payable hereunder, whether the same be rent or otherwise, violation may be
restrained or such obligation enforced by injunction, which remedy shall be in
addition to all other rights and remedies available to Landlord.
ARTICLE 11. LANDLORD SHALL FURNISH
11.1 Equipment
Heating, air conditioning, ventilating, plumbing and electrical equipment
shall be in good operating condition when the Tenant takes possession.
11.2 Parking
"Off street" parking facilities for use in common with Landlord and other
tenants on a "first come, first served" basis, subject to the applicable laws of
the City and State, and all reasonable rules and regulations that may be imposed
from time to time by the Landlord.
ARTICLE 12. RIGHTS RESERVED TO LANDLORD
Without limiting any other rights reserved or available to Landlord,
Landlord reserves the following rights, to be exercised at Landlord's election
without liability to Tenant:
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a) to enter the Premises to make inspections at reasonable times during
normal business hours without material inconvenience to the Tenant
or to show the Premises to prospective tenants or brokers during the
last six months of the Lease Term, or lenders or other persons
having a legitimate interest in viewing the Premises with 24 hour
notice except in the case of an emergency;
b) to change the name or address of the Building;
c) to exclude or expel from the Premises or Building any person who, in
the judgment of the Landlord is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building;
d) to designate all sources furnishing sign painting and lettering and
repairs and maintenance and to designate to anyone the exclusive
right to conduct any business or render services in the Development;
e) to decorate, remodel, repair, alter or otherwise prepare the leased
Premises for re-occupancy during the last six (6) months of the term
hereof if, during or prior to such time, Tenant vacates the leased
Premises or at any time after Tenant abandons the leased Premises.
f) to decorate and to make repairs, alterations, additions and
improvements, structural or otherwise, in or to the leased Premises
in, about, or adjacent to the Building and Development or part
thereof, and to perform any acts related to the safety, protection,
or preservation thereof, and during such operations to take into and
through the leased Premises or any part of the Building all material
and equipment required and to close or temporarily suspend operation
of entrances, doors, corridors, parking facilities or other
facilities, provided that Landlord shall cause as little
inconvenience or annoyance to Tenant as is reasonably necessary in
the circumstances, and provided further that Tenant's business
operations shall not be prevented or materially disrupted. Landlord
may do any such work during ordinary business hours, and Tenant
shall pay Landlord for overtime and for any other expenses incurred
if such work is done during other hours at Tenant's request;
g) to approve the weight, size and location of heavy machinery and
equipment in and about the leased Premises. If considered necessary
by Landlord, to require supplementary supports at the Tenant's
expense; and
h) to hold pass keys to the Premises. Landlord shall not use such pass
keys to obtain access to the premises without Tenant's prior consent
except in emergencies.
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Landlord's entrance to the Premises for any of the above purposes shall be
without being deemed guilty of any eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant.
ARTICLE 13. MISCELLANEOUS
13.1 Legal Fees
The non-prevailing party shall pay all costs, expenses and reasonable
attorney's fees that may be incurred by prevailing party in enforcing the terms,
covenants and obligations of the Lease.
13.2 Additional Billings
Billings by Landlord for services or required repairs which are not the
obligation of Landlord will be deemed as additional rents and are subject to the
same rights and remedies as described herein for rents.
13.3 Receipt of Rent After Termination
No receipt of money by the Landlord from the Tenant after the termination
of this Lease or after the service of any notice or after the commencement of
any suit or after final judgment for possession of the Premises shall renew,
reinstate, continue or extend the term of this Lease or affect any such notice,
demand or suit.
13.4 Successors & Assigns
Each provision hereof shall extend to and shall, as the case may require,
bind and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns.
13.5 Notices
Any notice which may be or is required to be given under this Lease shall
be in writing and shall be delivered in person or sent by United States
Certified Mail addressed as follows:
a) if to Landlord, at such address where Tenant is required to pay
rent; and
b) if to Tenant, at the Premises or at such other address as the Tenant
shall designate by notice to the Landlord.
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13.6 Entire Agreement
This Lease and the exhibits and riders, if any, attached hereto and
forming a part hereof, set forth all the covenants, promises, agreements,
conditions and undertakings between Landlord and Tenant concerning the Premises,
and there are no covenants, promises, agreements, conditions, or understandings,
either oral or written, between them other than as herein set forth. No
subsequent alteration, change or addition to this Lease shall be binding upon
Landlord or Tenant unless reduced to writing and signed by them.
13.7 Waiver
No waiver of any default of the Tenant hereunder shall be implied from any
omission by the Landlord to take any action on account of such default if such
default persist or is repeated, and no express waiver shall affect any default
other than the default specified in the express waiver and that only for the
time and to the extent therein stated.
13.8 Captions & Headings
The article and paragraph headings of this Lease are for convenience
only and in no way limit or enlarge the scope of meaning.
13.9 Definitions
The terms Lessor and Landlord are used interchangeably, and the terms
Lessee and Tenant are used interchangeably. As applicable, the terms Lessor and
Landlord shall also mean and include the duly appointed Management Agent of the
Building.
13.10 Representation and Compensation of Tenant Representatives
With regards to the Landlord and the Landlord's Exclusive Agent (Arthur J.
Rogers & Co.) paying commissions for existing Tenants renewing, extending or
expanding their Lease, it is expressly understood, in all cases, that the
Tenant's representative will be directly compensated for it's services by the
Tenant. And further, both the Landlord and Landlord's Exclusive Agent reserve
the right to require written confirmation from the Tenant, that the Tenant is
responsible for such compensation prior to commencing any communications or
discussions with the Tenant's Representative.
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13.11 Year 2000 Compliance
Landlord covenants and agrees that all services that it directly provides
pursuant to Section 11.1 of this Lease, including but limited to heating and
cooling, ventilating and security monitoring, shall not in any manner be
adversely affected or interrupted solely as a result of the failure of any or
all of the underlying computer systems which are under the direct control of
Landlord to properly account for and recognize the transition to the calendar
year 2000 and all subsequent dates thereafter. Landlord agrees that it shall, at
its sole cost and expense, perform any and all necessary maintenance to such
computer systems so as to ensure that the services provided to Tenant under
Section 11.1 of this Lease are not in any manner adversely affected or
interrupted. In no event shall Landlord's costs associated with such maintenance
constitute a component of Common Area Expenses hereunder. Landlord shall be
liable for abatement of Rent commencing with the date on which such services
were interrupted until the services were resumed, as well as all other
appropriate remedies at law or in equity, unless such interruption is beyond
Landlord's control.
13.12 Option to Renew
Provided that Tenant is not in default in the performance of the terms,
covenants and agreements of this Lease to be performed by Tenant, Tenant is
granted the right and option to extend the term hereof for an additional five
(5) years, upon all of the terms, covenants, conditions and agreements herein
set forth, except that the rental rate shall be at the prevailing market rate as
of March 14, 2005, but shall in no event be lower than $8,170.83 per month.
Tenant shall exercise this option by written notice served on Landlord not
less than eight (8) months prior to the expiration date of this Lease, which
expiration date is March 14, 2005. Should Tenant fail to notify Landlord of
Tenant's intent to exercise this Option to Renew eight (8) months prior to the
expiration date of the Lease, this Option to Renew shall become null and void.
Upon written notification of Tenant's intent to renew, Landlord shall provide
Tenant with written notification of the proposed rental rate for the renewal
period The "Proposed Renewal Rate"). If Landlord and Tenant cannot agree upon
the Proposed Renewal Rate, Tenant may withdraw its intent to renew by notifying
Landlord in writing Thirty (30) days after the date of Tenant's initial receipt
of Landlord's notification of the Proposed Renewal Rate. If Tenant fails to
withdraw its intent to renew the Option to Renew will remain in full force and
effect at Landlord's proposed renewal rate.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this
Lease Agreement as of the day and year first above written.
THE LANDLORD: THE TENANT:
------------- -----------
ARTHUR J. ROGERS & CO., as managing Immtech International, Inc.
Agent for the beneficiary of owner. A Delaware Corporation
By: /s/ William G. Schmitz By: /s/ Gary C. Parks
--------------------------------- ---------------------------------
William G. Schmitz, RPA/President Signature
Gary C. Parks
---------------------------------
Please Print Name
Title: CFO
------------------------------
Landlord's offer may be withdrawn by the Landlord or it's Agent at anytime
without notice, and does not constitute a binding offer or Lease until properly
signed by all parties to the Lease, and a fully executed copy is delivered by
the Landlord to the Tenant.
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EXHIBIT "A"
[GRAPHIC]
