Illinois-Evanston-1800 Sherman Avenue Lease - 1800 Sherman Associates and Cass Communications Inc.
1800 SHERMAN
STANDARD FORM OFFICE LEASE
BETWEEN
1800 Sherman Associates, an Illinois general partnership ("LANDLORD"),
by its agent, Equity Office Properties, Inc.
AND
Cass Communications, Inc., an Illinois corporation ("TENANT")
<PAGE>
TABLE OF CONTENTS
-----------------
I. Basic Lease Information: Definitions........................................................... 1
------------------------------------
II. Lease Grant.................................................................................... 3
-----------
III. Adjustment of Commencement Date / Possession................................................... 3
--------------------------------------------
IV. Use............................................................................................ 4
---
V. Rent........................................................................................... 5
----
VI Security Deposit............................................................................... 5
----------------
VII. Services to be Furnished by Landlord........................................................... 5
------------------------------------
VIII. Leasehold Improvements......................................................................... 6
----------------------
IX. Graphics....................................................................................... 7
--------
X. Repairs and Alterations by Tenant.............................................................. 7
---------------------------------
XI. Use if Electrical and HVAC Services by Tenant.................................................. 7
---------------------------------------------
XII. Entry by Landlord.............................................................................. 8
-----------------
XIII. Assignment and Subletting...................................................................... 8
-------------------------
XIV. Liens.......................................................................................... 9
-----
XV. Indemnity and Waiver of Claims................................................................. 9
------------------------------
XVI. Tenant's Insurance............................................................................. 10
------------------
XVII. Surogation..................................................................................... 11
----------
XVIII. Landlord's Insurance........................................................................... 11
--------------------
XIX. Casualty Damage................................................................................ 11
---------------
XX. Demolition..................................................................................... 12
----------
XXI. Condemnation................................................................................... 12
------------
XXII. Events of Default.............................................................................. 13
-----------------
<PAGE>
XXIII. Remedies....................................................................................... 14
--------
XXIV. Limitation of Liability........................................................................ 15
-----------------------
XXV. No-Waiver...................................................................................... 15
---------
XXVI. Event of Bankruptcy............................................................................ 16
-------------------
XXVII. Quiet Enjoyment................................................................................ 17
---------------
XXVIII. Relocation..................................................................................... 17
----------
XIX. Holding Over................................................................................... 17
------------
XXX. Subordination to Mortgages..................................................................... 17
--------------------------
XXXI. Attorney's Fees................................................................................ 17
---------------
XXXII. Notice......................................................................................... 18
------
XXXIII. Landlord's Lien................................................................................ 18
---------------
XXXIV. Excepted Rights................................................................................ 18
---------------
XXXV. Surrender of Premises.......................................................................... 19
---------------------
XXXVI. Miscellaneous.................................................................................. 19
-------------
XXXVII. Entire Agreement............................................................................... 20
----------------
<PAGE>
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease"), is made and entered into as of
the 31/st/ day of July, 1993, by and between 1800 Sherman Associates, an
Illinois general partnership ("Landlord") by its Agent, Equity Office
Properties, inc. and Cass Communications, inc. an Illinois corporation
("Tenant").
I. Basic Lease information; Definitions.
------------------------------------
A. The following is some of the basic lease information and defined terms
used in this Lease.
1. "Broker" means not applicable.
2. "Building" shall mean the office building located at 1800
Sherman, Evanston, Cook County, State of Illinois, commonly known as The
1800 Sherman Building.
3. If Landlord is not required to perform Landlord Work (hereinafter
defined) in the Premises, the "Commencement Date," "Lease Term" and
"Termination Date" shall be as set forth in subsection I.A.3.a. below. If
Landlord is required to perform Landlord Work in the premises, the
"Commencement Date," "Lease Term" and "Termination Date" shall be
determined pursuant to subsection I.A.3.b. below (delete one):
a. The "Lease Term" shall mean a period of one hundred twenty
(120 months commencing on August 1, 1993 (the "Commencement Date")
and, unless sooner terminated as provided herein, ending on July 31,
2003 (the "Termination Date").
b. INTENTIONALLY OMITTED.
4. "Guarantor(s)" shall mean NOT APPLICABLE.
5. "Landlord Work" shall mean the work, if any, that Landlord is
obligated to perform in the Premises pursuant to the Work Letter Agreement
attached hereto as Exhibit "C".
6. "Notice Addresses" shall mean the following addresses for tenant
and Landlord, respectively:
Tenant
Prior to the Commencement Date, notices shall be sent to Tenant
at the following address:
Cass Communications
1800 Sherman
Suite 300
Evanston, IL 60201
<PAGE>
On or after the Commencement Date, notices shall be sent to
Tenant at the Premises.
Landlord:
Equity Office Properties, Inc.
1800 Sherman
Evanston, IL 60201
Attention: Building Manager
With a copy to:
Equity Office Properties, Inc.
Two North Riverside Plaza
Suite 2200
Chicago, Illinois 60606
Attention: General Counsel
Payments of Rent only shall be made payable to the order of 1800
Sherman Associates at the following address:
Equity Office Properties, Inc.
1800 Sherman
Evanston, IL 60201
7. "Permitted Use" shall mean: general office purposes in connection
with advertising services.
8. "Premises" shall mean the area located on the third floor of the
Building and outlined on Exhibit A attached hereto and Incorporated heroin
and known as Suite # 300.
9. "Prepaid Rental": NOT APPLICABLE.
10. "Rentable Area of the Premises" shall mean the area contained
within the demising walls of the Promises and any other area designated for
the exclusive use of Tenant, without deduction for any columns or
projections necessary to the Building, plus a proportionate share of any
Common Areas located on the floor(s) on which the Premises is located and a
proportionate share of the Building's public areas, management office,
engineer's office and "Mechanical Spaces" i.e. spaces housing service
areas, equipment and/or access corridors for HVAC and communications
facilities, plumbing, tire protection and elevators. The Rentable Area of
the Premises is deemed for all purposes under this, Lease to be 12,500
square feet. The "Rentable Area of the Building" is deemed for all purposes
under this Lease to be 134,541 square feet. The square footage amounts set
forth for the Rentable Area of the Premises and the Rentable Area of the
Building constitute a material part of the economic basis of this Lease and
the execution thereof by Landlord and shall not be adjusted without the
written consent of Landlord.
<PAGE>
11. "Security Deposit" shall mean the sum of NOT APPLICABLE.
--------------
12. "Tenant's Pro Rata Share" shall mean nine and twenty-nine
hundredths percent (9.29%), which is the sum derived by dividing the
Rentable Area of the Premises by The Rentable Area of the Building and
multiplying the result thereat by one hundred (100).
B. The following are additional definitions of some of the defined terms
used in the Lease.
1. "Basic Costs" shall mean all direct and indirect costs and
expenses incurred in connection with the Property as more fully defined in
Exhibit B-2.
2. "Building Standard" shall mean the type, grade, brand, quality
and/or quantity of materials Landlord designates from time to time to be
the minimum quality and/or quantity to be used in the Building.
3. "Business Day(s)" shall mean Mondays through Fridays exclusive of
the normal business holidays ("Holidays") of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day, and such
other days as Landlord may designate.
4. "Common Areas" shall mean those areas provided for the common use
or benefit of all tenants generally and/or the public, such as corridors,
elevator foyers, common mail rooms, restrooms, vending areas, and lobby
areas (whether at ground level or otherwise), and other similar facilities.
5. "Maximum Rate" shall mean the greatest per annum rate of interest
permitted from time to time under applicable federal and state law.
6. "Normal Business Hours" for the Building shall mean 8:00 a.m. to
6:00 p.m. Mondays through Fridays, and 8:00 a.m. to 1:00 p.m. on Saturdays,
exclusive of Holidays; and such other hours as Landlord may designate from
time to time.
7. "Prima Rate" shall mean the per annum interest rate publicly
announced by The First National Bank of Chicago from time to time (whether
or not charged in each instance) as its prime or base rate.
8. "Property" shall mean the Building, the Building Garage, if any,
all other improvements serving the Building and the tenants thereof and the
parcel(s) of land on which they are located.
II. Lease Grant. Subject to and upon the terms herein set forth, Landlord
-----------
leases to Tenant and Tenant leases from Landlord the Premises.
III. Adjustment of Commencement Date/Possession.
------------------------------------------
A. If Landlord is performing Landlord Work in the Premises, the Lease
Term shall not commence until the later to occur of the Target Commencement Date
- and the date that Landlord has substantially completed the Landlord Work;
provided, however, that if Landlord shall be delayed in substantially completing
the Landlord Work as a result of the occurrence of any of the following (a
"Delay"):
<PAGE>
1. Tenant's failure to furnish information in accordance with the
Work Letter Agreement or to respond to any request by Landlord for any
approval or information within any time period prescribed, or if no time
period is prescribed, then within two (2) Business days of such request; or
2. Tenant's insistence art materials, finishes or installations that
have long lead times after having first been informed by Landlord that such
materials, finishes or installations will cause a Delay: or
3. Changes in any plans and specifications; or
4. The performance or nonperformance by a person or entity employed
by Tenant in the completion of any work (all such work and such persons or
entitles being subject to the prior approval of Landlord); or
5. Any request by Tenant that Landlord delay the completion of any
of the Landlord Work; or
6. Any breach or default by Tenant in the performance of Tenant's
obligations under this Lease; or
7. Any delay resulting from Tenant's having taken possession of the
Premises for any reason prior to substantial completion of the Landlord
Work; or
8. Any other delay chargeable to tenant, its agents, employees or
independent contractors; or,
9. Any other cause beyond Landlord's control;
then, for purposes of determining the Commencement Date. the date of
substantial completion shall be deemed to be the day that said Landlord
Work would have been substantially completed absent any such Delay(s). The
Landlord Work shall be deemed to be substantially completed on the date
that Landlord reasonably determines that all Landlord's work has been
performed (or would have been performed absent any Delays), other than any
details of construction, mechanical adjustment or any other matter, the
noncompletion of which does not materially interfere with Tenant's use of
the Premises. The adjustment of the Commencement Date and, accordingly, the
postponement of Tenant's obligation to pay Rent shall be Tenant's sole
remedy and shall constitute full settlement of all claims that Tenant might
otherwise have against Landlord by reason of the Premises not being ready
for occupancy by Tenant on the Target Commencement Date. Landlord's
determination of the Commencement Date shall be final and binding on alt
pathos for all purposes, including, without limitation, determination of
the date of commencement of the Lease Term and of Tenant's obligation to
pay Rent hereunder. Promptly after the determination of the Commencement
Date by Landlord, Landlord shall prepare a letter agreement (the
"Commencement Letter") setting forth the Commencement Date, the Termination
Date and any other dates that are affected by the adjustment of the
Commencement Date. Tenant, within five (5) days alter receipt thereof from
Landlord, shall execute the Commencement Letter and return the came to
Landlord. Notwithstanding anything herein to the contrary, Landlord in its
sole discretion, may elect, by written notice to Tenant, not to adjust the
Commencement Date as provided above, in which case the Commencement Date
shall be the Target Commencement Date,
<PAGE>
provided that Rent shall not commence until the date that Landlord Work has
been substantially completed (or would have been substantially completed
absent any Delays).
B. By taking possession of the Premises, Tenant is deemed to have:
1. accepted the Premises and agreed that the Premises is in good
order and satisfactory condition, with no representation or warranty by
Landlord as to the condition or suitability of the Premises or of the
Building for Tenant's use thereof; and
2. agreed that Landlord has no obligation to clean, decorate, after,
(remodel, improve or repair the Premises or the Building unless said
obligation is Specifically set forth in this Lease,
C. Notwithstanding anything to the contrary contained in the Lease,
Landlord shall not be obligated to tender possession of any portion of the
Premises that is currently occupied by a tenant or other occupant or that is
subject to the rights of any other tenant or occupant, nor shall Landlord have
any other obligations to Tenant under this Lease until the date Landlord: 1.
recaptures such space from such existing tenant or occupant; and 2. regains the
legal right to possession thereof. This Lease shall not be affected by any such
failure to deliver. possession and Tenant shall have no claim for damages
against Landlord as a result thereof, all of which are hereby waived and
released by Tenant. If the Lease Term is to be determined pursuant to Section
I.A.3.(a) hereof, the Commencement Date shall be postponed until the date
Landlord delivers possession of the Premises to Tenant, in which event the
Termination Date shall correspondingly be postponed on a per diem basis. if the
Lease Term is to be determined pursuant to Section I.A.3.(b), the Commencement
Date and Termination Date shall be determined as provided in Section III.A.
above, provided that Landlord's failure to deliver possession shall not be
deemed to be a Delay by Tenant.
D. If Tenant takes possession of the Premises prior to the Commencement
Date for any reason whatsoever such possession shall be subject to all the terms
and conditions of the Lease and Tenant shall pay Base Rental and Additional Base
Rental to Landlord on a per diem basis for each day of occupancy prior to the
Commencement Date.
IV. Use. The Promises shall be used for the Permitted Use and for no other
---
purpose without the Landlord's prior written consent. Tenant agrees not to use
or permit the use of the Premises for any purpose which is illegal, dangerous to
life, limb or property or which creates a nuisance or which would increase the
cost of insurance coverage with respect to the Building: Tenant shall conduct
its business and control its agent; servant; contractors, employee; customers,
Licensees, and invitees in such a manner as not to unreasonably interfere with,
annoy or disturb other tenants, or in any way unreasonably interfere with
Landlord in the management arid operation of the Building. Tenant will maintain
the Premises in a clean and healthful condition, and comply with all laws,
ordinances, Orders, rules and regulations of any governmental entity with
reference to the operation of Tenant's business and to the use, condition,
configuration or occupancy of the Premises, including without limitation, the
Americans with Disabilities Act. Notwithstanding the foregoing, Landlord, at its
sole cost and expense (except to the extent properly included in Basic Costs),
shall be responsible for correcting any violations of Title III of the Americans
with Disabilities Act and/or applicable building, fire and safety codes with
respect to the Premises and the Common Areas of the Building, provided that
Landlord's obligation with respect to the Premises shall be limited to
<PAGE>
violations that: (i) arise out of the Landlord Work and/or (ii) of necessity,
would require alterations to the basic structure of the Building, e.g. the
placement of support columns, elevator shafts, exterior watts at public stairs.
Notwithstanding the foregoing, Landlord shall have the right to contest any
alleged violation in good faith, including, without limitation, the right to
apply for and obtain a waiver or deferment of compliance, the right to assert
any and all defenses allowed by law and the right to appeal any decisions,
judgments or rulings to the fullest extent permitted by law. Landlord, after the
exhaustion of any and all rights to appeal or contest, will make all repairs,
additions, alterations or improvements necessary to comply with the terms of any
final order or judgment, provided that if Landlord elects not to contest any
alleged violation, Landlord will make any repairs, additions, alterations or
improvements necessary to comply with the notice of violation.
Tenant, not Landlord, shall be responsible for the correction of any violations
that arise out of or in connection with any claims brought under any provision
of the Americans with Disabilities Act other than Title III, the specific nature
of Tenant's business in the premises (other than general office use), the acts
or omission of Tenant, its agents, employees and contractors, Tenant's
arrangement of any furniture, equipment or other property in the Premises, any
repairs, alterations, additions or improvements performed by or on behalf of
Tenant (other than the Landlord Work) and any design or configuration of the
Premises specifically requested by Tenant after being informed that such design
or configuration may not be in strict compliance with applicable coda Tenant
wilt comply with the rules and regulations of the Building adopted and altered
by Landlord from time to time and will cause all of its agents, servants,
contractors employees, customers, licensees and invitees to do so. All changes
to such rules and regulations will be sent by Landlord to Tenant in writing. A
copy of the existing rules and regulations is attached hereto as Exhibit D and
made a part hereof. Tenant agrees not to commit or allow any waste to be
committed on any portion of the Premises, and at the termination of this Lease
to deliver up the Premises to Landlord in accordance with Article XXXV hereof.
Subject to (i) the terms of this Lease, (ii) events of Force Majeure and (iii)
any reasonable security measures adopted by Landlord, Tenant shall have access
to the Building and the Premises twenty-tour (24) hours a day, 365/6 days per
year.
V. Rent.
----
A. Tenant covenants and agrees to pay to Landlord during the Lease Term,
without any setoff or deduction whatsoever, the full amount of all Base Rental
payments, subject to the Rent Abatement set forth in Exhibit E hereof, and any
adjustments thereof, due in accordance with the rental schedule set forth in
Exhibit B-1 hereof (the "Base Rental"), the full amount of all payments of
Additional Base Rental due in accordance with Exhibit B-2 hereof and the full
amount of all parking charges, if any, due in accordance with this Lease (the
"Additional Base Rental") end all such other reasonable sums of money as shall
become due under this Lease (including, without limitation, any reasonable
charges for replacement of electric lamps and ballasts and any other services,
goods or materials furnished by Landlord at Tenant's request), all of which
hereinafter may be collectively called "Rent". Except as otherwise provided
herein, the Base Rental and Additional Base Rental for each calendar year or
portion thereof during the Lease Term, shall be due and payable in advance in
equal monthly installments on the first day of each calendar month during the
Lease Term and any extensions or renewals hereof, and tenant hereby agrees to
pay such Base Rental and Additional Base Rental to Landlord without demand,
<PAGE>
provided that the installment of Base Rental for the first full calendar month
of the Lease Term shall be payable upon the execution of this Lease by Tenant.
If the Lease term, commences on a day other than the first day of a month or
terminates on a day other than the last day of a month, then the installments of
Base Rental and Additional Base Rental for such month or months shall be
prorated, based on the number of days in such month. All such payments shall be
by a good and sufficient check. No payment by Tenant or receipt or acceptance by
Landlord of a lesser amount than the correct amount of Rent due under this Lease
shall be deemed to be other than a payment on account of the earliest Rent due
hereunder, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any. other available remedy. The acceptance by
Landlord of any Rent on a date after the due date of such payment shall not be
construed to be a waiver of Landlord's right to declare a default for any other
late payment. Tenant's covenant to pay Rent shall be independent of every other
covenant set form in this Lease.
B. All Rent not paid when due and payable shall bear interest from five
(5) days after the date due until paid at the lesser of: 1. eighteen percent
(18%) per annum; or 2. the Maximum Rate. In addition, if Tenant falls to pay any
installment of Base Rental, Additional Base Rental or any other item of Rent
when due and payable hereunder, a service fee equal to five percent (5%) of such
unpaid amount will be due and payable immediately by Tenant to Landlord.
VI. Security Deposit. INTENTIONALLY OMMITTED
----------------
VII. Services to be Furnished by Landlord.
------------------------------------
A. Subject to the provisions of Article XI below, Landlord, as part of
Basic Cost; agrees to furnish Tenant the following services:
1. Cold water at those points of supply provided for general use of
tenants in the Building, central heat and air conditioning in season, at
such temperatures and in such amounts as are standard for buildings of
similar class, size, age and location, or as required by governmental
authority; provided, however, healing and air conditioning service at times
other than for Normal Business Hours for the Building shall be furnished
only upon the written request of Tenant delivered to Landlord at the office
of the Building prior to 3:00 p.m. at least one Business Day in advance of
the date for which such usage is requested. Tenant shall pay Landlord, upon
demand as additional rent, the entire cost of additional service as such
costs are determined by Landlord from time to time.
2. Routine maintenance and electric lighting service for all Common
Areas of the Building in the manner and to the extent deemed by Landlord to
be standard for buildings -of similar class, size, age and location.
3. Janitor service on Business Days; provided, however, if Tenant's
use, floor covering or other improvements require special services, Tenant
shall, at Landlord's option, either {i) retain its own contractors (which
contractor shall be subject to Landlord's reasonable approval) to do such
work or. (ii) pay the additional cost reasonably attributable thereto as
additional Rent upon presentation of statements therefor by Landlord.
<PAGE>
4. Elevator service in common with other tenants of the Building for
ingress and egress to and from the floor of the Premises during Normal
Business Hours, provided that, subject to Force Majeure, at least one (1)
passenger elevator servicing the Premises shall be available for the use of
Tenant, twenty-four (24) hours a day, 365/6 days per year.
B. Except as otherwise expressly provided herein, the failure by Landlord
to any extent to furnish, or the interruption or termination of these services
in whole or in part, resulting from adherence to laws, regulations and
administrative orders, wear, use, repairs, improvements, alterations, Force
Majeure (as hereinafter defined) or any causes beyond the reasonable control of
Landlord shall not render Landlord liable in any respect nor be construed as an
eviction of Tenant, nor give rise to en abatement of Rent, nor relieve Tenant
from the obligation to fulfill any covenant or agreement hereof. Notwithstanding
anything to the contrary contained in this Section VII.B. If (i) Landlord
ceases to furnish any service in the Building, and Tenant notifies Landlord of
such cessation in writing (the Interruption Notice"), (ii) such cessation does
not arise as a result of an act or omission of Tenant, (iii) such cessation is
not caused by a fire or other casualty (in which case Article XIX shall
control), (iv) the repair or restoration of such service is reasonably within
the control of Landlord, and (v) as a result of such cessation, the Premises or
a material portion thereof, is rendered untenantable (meaning that Tenant is
unable to use the Premises in the normal course of its business) and Tenant in
fact ceases to use the Premises, or material portion thereof, then, Tenant's
sole remedy for such cessation shall be as follows: on the fifth (5/th/)
consecutive business day (allowing the later to occur of the date the Premises
(or material portion thereof) becomes untenantable, the date Tenant ceases to
use such spate and the date Tenant provides Landlord with an interruption
Notice, the Base Rental and Additional Base Rental payable hereunder shall be
abated on a per diem basis for each day" after such five (5) business day period
based upon the percentage of the Premises so rendered untenantable and not used
by Tenant, and such abatement shall continue until the date the Premises become
tenantable again. Should any of the equipment or machinery used in the provision
of such services for any cause cease to function properly, Landlord shall use
reasonable diligence to repair such equipment and machinery, but except as
otherwise expressly provided herein, Tenant shall have no claim for offset or
abatement of Rent or damages on account of an interruption in service or
resulting therefrom. Landlord's entire obligation with respect to the repair and
maintenance of the Premises are set forth above.
C. Tenant expressly acknowledges that if Landlord, from time to time,
elects to provide security services, Landlord shall not be deemed to have
warranted the efficiency of such security personnel, service, procedures or
equipment and Landlord, except to the extent of its own negligence or willful
misconduct, shall not be liable in any manner for the failure of any such
security personnel, services, procedures or equipment to prevent or control, or
apprehend any one suspected of personal injury or property damage in, on or
around the Property.
VIII. Leasehold Improvements.
----------------------
A. Except as otherwise specifically provided elsewhere in this Lease or
in the Work Letter Agreement, if any, attached hereto as Exhibit C and
incorporated herein, all installations and improvements now or hereafter placed
on or in the Premises shall be for Tenant's account and at Tenant's cost, which
cost shall be payable by Tenant to Landlord upon demand as additional Rent.
<PAGE>
B. Any and all alterations, additions and improvements to the Premises,
all attached furniture, equipment and non-trade fixtures (collectively,
"Leasehold Improvements") shall be owned and insured by Landlord and shall
remain upon the Premises, all without compensation, allowance or credit to
Tenant. Any unattached and movable equipment or furniture, trade fixtures or
other personality of Tenant ("Tenant's Property") shall be owned arid insured by
tenant. Landlord may, nonetheless, require Tenant to remove any Leasehold
improvements performed by or for the benefit of Tenant and all electronic, phone
and data cabling as are designated by Landlord (the "Required Removables") at
Tenant's sole cost. In the event that Landlord so elects, Tenant shall remove
such Required Removables on or before the expiration or earlier termination or
this Lease and repair any damage caused by such removal. If Tenant fails to
remove the Required Removables after Landlord's request therefor, Landlord may
remove, store or dispose of the Required Removable; at Tenant's cost, and repair
any damage caused by such removal and Tenant shall pay Landlord as additional
Rent hereunder, on demand, all such costs. Notwithstanding the foregoing, Tenant
may request in writing at the time it Submits its plans and specifications for
an alteration, addition or improvement, that -Landlord advise Tenant whether
Landlord wilt require Tenant to remove, at the termination at this Lease or
Tenant's right to possession hereunder, such alteration, addition or
improvement, or any particular portion thereof and Landlord shall advise Tenant
within twenty (20) days after receipt of Tenant's request as to whether Landlord
will require removal; provided, however, Landlord shall have the right to
require Tenant to remove any vault, stairway or computer room alterations
installed in the Premises, regardless of whether Landlord timely notified tenant
that it would require such removal.
IX. Graphics. Landlord shall provide and install, at Tenant's cost, all
--------
letters or numerals on the exterior of the Premises; all such letters and
numerals shall be in the standard graphics for the Building and no others shall
be used or permitted on the Premises without Landlord's prior written consent.
X. Repairs and Alternations by Tenant.
----------------------------------
A. Tenant shall, at Tenant's own cost and expense, keep the Premises in
good condition and repair reasonable wear and tear excepted. Such repairs shall
restore the premises to as good a condition as it was in prior to such damage
and shall be effected in compliance with the reasonable directions of Landlord.
If Tenant falls to make such repairs to the Premises promptly, Landlord may, at
its option, and upon written notice to Tenant, make such repairs, and Tenant
shall pay the reasonable cost thereof to the Landlord on demand as additional
Rent.
B. Tenant shall not make or allow to be made any alterations, additions
or improvements to the Premises, nor install any vending machines, safes or
other heavy property or equipment within the Premises, nor place signs or window
coverings on the Premises which are visible from outside the Premises, without
first obtaining the written consent of Landlord in each such instance, which
shall not be unreasonably withheld a delayed. Notwithstanding the foregoing,
Landlord's consent shall not be required for any alteration, addition or
improvement that; 1) costs less than $5,000.00 2) is of a cosmetic nature such
as painting, wallpapering, hanging pictures and installing carpeting, 3) is net
visible from the exterior of the Premises or Building, and 4) will not affect
the systems or structure of the Building and does not require work to be
performed inside the walls or above the ceiling of the Premises; provided that
even if consent is not required, Tenant shall still comply with all the other
provisions of this Section
<PAGE>
X.B. Prior to commencing ant such work, Tenant must furnish Landlord with plans
end specifications; names and addresses of contractors; copies of contracts;
necessary permits; evidence of contractors and subcontractor's insurance in
accordance with Section XVI.B. hereof; and indemnification in form and amount
satisfactory to Landlord. All such improvements, alterations or additions shall
be installed in a good workmanlike manner using new materials. Upon completion,
Tenant shall furnish "as-built" plans, contractor's affidavits and full and
final waivers of lien and receipted bills covering all labor and materials. All
improvements, alterations and additions shall comply with all insurance
requirements, codes, ordinances, laws and regulations, including without
limitation, the Americans with Disabilities Act. If the proposed alterations,
additions or improvements will affect the structure or the electrical
mechanical, heating, ventilating and air conditioning system of the Building
(the "System"), Tenant shall reimburse Landlord upon demand as additional Rent
for all reasonable out-of-pocket sums expended by Landlord for examination of
the architectural, mechanical, electric and plumbing plans for any alterations,
additions or improvements and for the costs of repairing any damage done to the
Building caused by Tenant or Tenant's agents, servants, employees, customers;
licensees, or invitees, if the proposed alterations, additions or improvements
wilt affect the structure or Systems of the Building and if Landlord so
requests, Tenant shall permit Landlord to supervise construction operations, but
no such supervision shall impose any liability upon Landlord, in the event
Landlord supervises such construction, Landlord shall be entitled to a
supervisory fee in the amount of fifteen percent .{15%) of the cost of such
construction. Landlord's approval of Tenant's plans and specifications or
supervision of any work performed for or on behalf of Tenant shall not be deemed
to be a representation by Landlord that such plans and specifications comply
with applicable insurance requirements, building codes, ordinances, laws or
regulations.
XI. Use of Electrical and HVAC Services by Tenant.
---------------------------------------------
A. All electricity used by Tenant in the Premises shall be paid for by
Tenant by a separate charge billed by the utility company supplying electricity
and payable by Tenant directly to such utility company. Tenant's use of
electrical and heating, ventilating and air conditioning ("HVAC") services
furnished by Landlord shall not exceed, either in voltage, rated capacity, use
or overall load, that which Landlord deems to be standard for the Building in
the event Tenant shall request that it be allowed to consume electrical or HVAC
services in excess of that deemed by Landlord to be standard for the Building,
Landlord may refuse to consent to such usage or may consent upon such conditions
as Landlord elects (including the installation of utility service upgrades,
submeters, air handlers or cooling units), and all such additional usage (to the
extent permitted by law), installation and maintenance thereof shall be paid for
by Tenant as additional Rent. Landlord shall have the right to separately meter
electrical usage for the Premises at any time during the Lease Term or to use
any other method of measuring electrical usage that Landlord, in its reasonable
Judgment, deems to be appropriate.
B. If Landlord generates or distributes electric consent for the
Building, Tenant shall obtain all current from Landlord and pay as additional
Rent Landlord's charges therefor,, provided, however, that if the cost of
providing electricity is not included in Base Rental or Basic Costs, the charges
to Tenant shall not exceed the rate that would be charged tenant if billed
directly by the local utility for the same services. Landlord may cease to
furnish electricity upon 30 days prior written notice, provided within the 30
days Landlord connects with another source of electric supply.
<PAGE>
XII. Entry by Landlord. Landlord and its agents or representatives shall have
-----------------
the right to enter the premises upon reasonable prior notice to inspect the
same, or to show the Premises to prospective purchasers, mortgagees, tenants or
insurers, or to clean or make repairs, alteration; or additions thereto,
including any work that Landlord deems necessary for the safety, protection or
preservation of the Building or any occupants thereof, or to facilitate repairs,
alterations or additions to the Building or any other tenants premises, provided
that landlord shall not unreasonably interfere with Tenant's use of the
Premises. If reasonably necessary for the protection and safety of Tenant and
its employees, Landlord shall have the right to temporarily chose the Premises
to perform repairs, alterations or additions in the Premises, provided that
Landlord shall use reasonable efforts to perform all such work on weekends and
after Normal Business Hours. Entry by Landlord hereunder shall pot constitute a
constructive eviction or entitle Tenant to any abatement or reduction of Rent by
reason thereof.
XIII. Assignment and Subletting.
-------------------------
A. Tenant shall not assign, sublease, transfer or encumber this Lease or
any interest therein or warrant any license, concession or other right of
occupancy of the Premises or any portion thereof or otherwise permit the use of
the Premises or any portion thereof by any party other than Tenant (any of which
events is hereinafter called a "Transfer") without the prior written consent of
Landlord, which consent shall not be unreasonably withheld with respect to any
proposed assignment or subletting. Landlord's consent shall not be considered
unreasonably withheld if: 1. the proposed transferee's financial responsibility
does not meet the same criteria Landlord uses to select Building tenants; 2. the
proposed transferee's business is not suitable for the Building considering the
business of the other tenants end the Building's prestige or would result in a
violation of an exclusive right granted to another tenant in the Building; 3.
the proposed use is different than the Permitted Lice; 4, the proposed
transferee is a government agency or occupant of the Building; or 5. Tenant is
in default, Tenant acknowledges that the foregoing is not intended to be an
exclusive list of the reasons for which Landlord may reasonably withhold its
consent to a proposed Transfer. Any attempted Transfer in violation of the terms
of this Article shall, at Landlord's option, be void. Consent by Landlord to one
or more Transfers shall not operate as a waiver of landlord's rights at to any
Subsequent Transfers. in addition, Tenant shall riot, without Landlord's
consent, publicly offer or advertise the Lease for Transfer in any media. In
the event Tenant or anyone acting on behalf of Tenant or with Tenant's Knowledge
violates the provisions of the foregoing sentence, Landlord, in addition to its
other remedies, shall be entitled to seek injunctive relief preventing such
action and Tenant shall be responsible for all costs incurred by Landlord in
connection therewith.
B. If Tenant requests Landlord's consent to a Transfer, Tenant shall
notify Landlord in writing at least 45 days prior to the effective date of the
proposed Transfer of the name of the proposed transferee and the nature of the
business of the proposed transferee, the teen, use, rental rate anti all other
material terms and conditions of the proposed Transfer, including, f without
limitation, evidence satisfactory to Landlord that the proposed transferee is
financially responsible4 Notwithstanding me provisions of Section XIII.A. above,
Landlord may, during said 45-day period, 1) consent to or refuse to consent to
such Transfer in writing; or 2) negotiate directly with the proposed transferee
and (in the event Landlord is able to reach agreement with such proposed
transferee) upon execution of a lease with such transferee, terminate this Lease
(in part or in whole, as appropriate) upon thirty (30) days' notice; or 3)
cancel and terminate this Lease, in whole or in part as appropriate, upon 30
days notice, in the event Landlord consents to
<PAGE>
any such Transfer, the Transfer shall be in a form approved by Landlord, and
Tenant shall bear all costs and expenses incurred by Landlord in connection with
me review and approval of such documentation, which costs and expanses shall be
deemed to be no more than One Thousand Dollars ($1,000.00).
C. All cash or other proceeds (the "Transfer Consideration") of any
Transfer of Tenant's interest in this Lease and/or the Premises, whether
consented to by Landlord or not, shall be paid to Landlord and Tenant hereby
assigns all rights it might have or ever acquire in any such proceeds to
Landlord. In addition to the Rent hereunder, Tenant hereby covenants and agrees
to pay to Landlord all rent and other consideration which it receives which is
in excess of the Rent payable hereunder within ten (10) days following receipt
thereof by Tenant. In addition to any other rights Landlord may have, Landlord
shall have the right to contact any transferee and require that all payments
made pursuant to the Transfer shall be made directly to Landlord.
D. It Tenant is a corporation and if at any time during the Lease Term
the person or persons who own the voting shares at the time of the execution of
this Lease cease for any reason, including but not limited to merger,
consolidation or other reorganization involving other corporation, to own a
majority of such shares, or it Tenant is a partnership and if at any time during
the Lease Term the general partner or partners who own the General partnership
interests in the partnership at the time of the execution of this Lease, cease
for any reason to own a majority of such interests (except as the result of
transfers by gift, bequest or inheritance to or for the benefit of members of
the immediate family of such original Shareholder(s) or partner(s)), such an
event shall be deemed to be a Transfer. The preceding sentence shall not apply
whenever Tenant is a corporation the outstanding stock of which is listed on a
recognized security exchange, or if at least eighty percent (80%) of its voting
stock is owned by another corporation, the voting stock of which is so listed.
E. Any Transfer consented to by Landlord in accordance with this Article
XIII shall be only for the Permitted Use and for no other purpose, and in no
event snail any Transfer release or relieve Tenant or any Guarantors from any
obligations under this Lease.
XIV. Liens. Tenant will not permit any mechanic's liens or other liens to be
-----
placed upon the Premises or Tenant's leasehold interest therein, the Building,
or the real estate associated therewith. Landlord's title to the Building and
Property is and always shall be paramount to the interest of Tenant, and nothing
herein contained shall empower Tenant to do any act that can, shall or may
encumber Landlord's title. In the event any such lien does attach, Tenant
shall, within 5 days of notice of the filing of said lien, either discharge or
bond over such lien to the satisfaction of Landlord and Landlord's Mortgagee (as
hereinafter defined), and in such a manner as to stay the enforcement or
foreclosure of such lien. If Tenant shall fall to so discharge or bond over
such lien then, in addition to any other right or remedy of Landlord, Landlord
may, but shall not be obligated to, discharge the same. Any amount paid by
Landlord for any of the aforesaid purposes, including reasonable attorneys fees
(if and to the extent permitted by law) shall be paid by Tenant to Landlord on
demand as additional Rent.
XV. Indemnity and Waiver of Claims.
------------------------------
A. Except for losses, liabilities, obligations, damages, penalties,
claims, costs, changes and expenses resulting from the negligence of Landlord
and/or its agents, employees or contractors, and subject to the provisions of
Article XVII hereof, Tenant shall indemnify, defend
<PAGE>
and hold Landlord, its principals, beneficiaries, partners, officers, directors,
agents, employees and any Mortgagee(s) (collectively the "Landlord Related
Parties") harmless against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including, without limitation,
reasonable architects' and attorneys' fees (if and to the extent permuted by
law), which may be imposed upon, incurred by, or asserted against Landlord or
any of the Landlord Related Parties and arising, directly or indirectly, out of
or in connection with the use, occupancy or maintenance of the Premises by,
through or under Tenant, and (without limiting the generality of the foregoing)
any of the following: 1) any work or thing done in, on or about the Premises or
any part thereof by Tenant or any of its transferees, agents, servants,
contractors, employees, customers, licensees or invitees; 2) any use, non-use,
possession, occupation, condition, operation or maintenance of the Premises or
any part thereof; 3) any act or omission of Tenant or arty of its transferees,
agents, servants, contractors, employees, customers, licensees or invitees,
regardless of whether such act or omission occurred within the Premises; 4) any
injury or damage to any person or property occurring in, on or about the
Premises or any part thereof; or 5) any failure on the part of Tenant to perform
or comply with any of the covenants, agreements, terms or conditions contained
in this Lease With which Tenant must comply or perform. In case any action or
proceeding is brought against Landlord or any of the Landlord Related Parties by
reason of any of the foregoing, Tenant shall, at Tenant's sole cost and expense,
resist and defend such action or proceeding with counsel approved by Landlord
or, at Landlord's option, reimburse Landlord for the cost of any counsel
retained directly by Landlord to defend and resist such action or proceeding.
B. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or damage to
person or property sustained by Tenant or any person claiming by. through or
under Tenant (including Tenant's employees) resulting from any accident or
occurrence in, on or about the Premises, the Building or the Property,
including, without limitation, claims for loss, theft or damage resulting from:
1) the Premises, Building, or Property, or any equipment or appurtenances
becoming out of repair; 2) wind or weather; 3) any defect in or failure to
operate, for whatever reason, any sprinkler, heating or air-conditioning
equipment, electric wiring, gas, water or steam pipes; 4) broken glass; 5) the
backing up of any sewer pipe or downspout; 6) the bursting, leaking or running
of any tank, water closet, drain or other pipe; 7) the escape of steam or water;
8) water, snow or ice being upon or coming through the roof, skylight, stairs,
doorways, windows, walks or any other place upon or near the Building; 9) the
failing of any fixture, plaster, tile or other material; 10) any act, omission
or negligence of other tenants, licensees or any other persons or occupants of
the Building or of adjoining or contiguous buildings, of owners of adjacent or
contiguous property or the public, or by construction of any private, public or
quasi-public work; or 11. any other cause of any nature except, as to items 1. -
9., where such loss or damage is due to Landlord's negligence or willful failure
to make repairs required to be made pursuant to other provisions of this Lease,
after the expiration of a reasonable time after written notice to Landlord of
the need for such repairs. To the maximum extent permitted by law, Tenant agrees
to use and occupy the Premises, and to use such other portions of the Building
as Tenant is herein given the right to use, at Tenant's own risk.
XVI. Tenant's Insurance.
------------------
<PAGE>
A. At all times commencing on and after the earlier of the Commencement
Date and the date Tenant or its agents, employees or contractors enters the
Premises for any purpose; Tenant shall carry and maintain, at its sole cost and
expense:
1. Commercial General Liability insurance with a Broad Form General
Liability Endorsement applicable to the Premises and its appurtenances
providing, on an occurrence basic, a minimum combined single limit of Two
Million Dollars ($2,000,000).
2. All Risks of Physical Loss insurance written at replacement cost
value and with a replacement cost endorsement covering all or Tenant's
Property in the Premises,
3. Workers Compensation Insurance as required by the state in which
the Premises is located and in amounts as may be required by applicable
statute, and Employers Liability Coverage of Five Hundred Thousand Dollars
($500,000.00) per occurrence.
4. Whenever good business practice, in Landlord's reasonable
judgment, indicates the need of different type of insurance in substitution
for the coverage specified above in connection with the Premises or
Tenant's use and occupancy thereof, Tenant shall, upon request, obtain such
insurance at Tenant's expense. provided such substitute coverage is
available at a reasonable premium, and provide Landlord with evidence
thereof,
B. Except for items for which Landlord is responsible under the Work
Letter Agreement, before any repairs, alterations, additions, improvements, or
construction are undertaken by or on behalf of Tenant, Tenant shall carry and
maintain, at its expense, or Tenant shall require any contractor performing work
on lbs Premises to carry and maintain, at no expense to Landlord, in addition to
worker's compensation insurance as required by the jurisdiction in which the
Building is located, All Risk Builder's Risk insurance in the amount of the
replacement cost of any alterations, additions or improvements (or such other
amount reasonably required by Landlord) and Commercial General Liability
Insurance (including, without limitation, Contractor's Liability coverage,
Contractual Liability coverage, Completed Operations coverage, a Broad Form
Property Damage coverage and Contractor's Protective Liability) written on an
occurrence basis with a minimum combined single limit of Two Million Dollars
($2,000,000); such limit may be accomplished by means of an umbrella policy.
C. Any company writing any insurance which Tenant is required to maintain
or cause to be maintained pursuant to the terms of this Lease (all such
insurance as well as any other insurance pertaining to the Premises or the
operation of Tenant's business therein being referred to as "Tenant's
insurance"), as well as the form of such insurance, shall at all times be
subject to Landlord's reasonable approval, and each such insurance company shall
have an A.M. Best rating of "A7" or better and shall be licensed and qualified
to do business in the state in which the Promises are located. All policies
evidencing Tenant's insurance (except for Workers Compensation) shall specify
Tenant and the "owner[s] of the Building and its (or their) respective
principals, beneficiaries, partners, officers, directors, employees, agents and
mortgagee[s]" (and any other designees of Landlord as the interest of such
designees shall appear) as additional insureds. Provided that the coverage
afforded Landlord and any designees or Landlord shall net be reduced or
otherwise adversely affected, all of Tenant's insurance may be carried under a
blanket policy covering the Premises and any other of Tenant's locations. All
<PAGE>
policies of Tenant's insurance shall contain endorsements that the insurer(s)
will give to Landlord and its designees at least thirty (30) days in advance
written notice of any change, cancellation, termination or lapse of said
insurance, Tenant shall be solely responsible for payment of premiums (or all of
Tenant's insurance). Tenant shall deliver to Landlord at least fifteen (15) days
prior to the time Tenant's insurance is first required to be carried by Tenant,
and upon renewals at least fifteen (15) days prior to the expiration of any such
insurance coverage, a certificate of insurance of all policies procured by
Tenant in compliance with its obligations under this Lease. The limits of
Tenant's insurance shall in no event limit Tenant's liability under this Lease.
D. Tenant shall not do or fail to do anything in, upon or about the
Premises which will: 1) violate the terms of any of Landlord's insurance
policies; 2) prevent Landlord from obtaining policies of insurance acceptable to
Landlord or any Mortgagees; or 3) result in an increase in the rate of any
insurance on the Premises, the Building, any other property of Landlord or of
others within the Building. In the event of the occurrence of any of the events
act forth in this Section, Tenant shall pay Landlord upon demand, as additional
Rent, the cost of the amount of any increase in any such insurance premium. If
Tenant fails to obtain the insurance coverage required by this Lease, Landlord
may, at its option, obtain such insurance for Tenant, and Tenant shall pay, an
additional Rent, the cost of all premiums thereon and all of Landlord's costs
associated therewith.
XVII. Subrogation. Notwithstanding anything set forth in this Lease to the
-----------
contrary, Landlord and Tenant do hereby waive any and all right of recovery
claim, action or cause of action against the other, their respective principals,
beneficiaries, partners, officers, directors, agents, and employees, and, with
respect to Landlord, its Mortgagee[s], for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to their respective property, the
Building, the Property or the Premises or any addition or improvements thereto,
or any contents therein, by reason of fire, the elements or any other cause,
regardless of cause or origin, including the negligence of Landlord or Tenant,
or their respective principals, beneficiaries, partners, officers, directors,
agents and employees and, with respect to Landlord, its Mortgagee[s], which loss
or damage is (or would have been, had the insurance required by this Lease been
carried) covered by subrogation. Since this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give each
insurance company which has issued, or in the future may issue, its policies of
fire, extended coverage or material damage insurance, written notice of the
terms of this mutual waiver, and to have such insurance policies property
endorsed, if necessary, to prevent the invalidation of any of the coverage
provided by such insurance policies by reason of such mutual waiver. For the
purpose of the foregoing waiver, the amount of any deductible -applicable to any
toss or damage Shall be deemed covered by, and recoverable by the insured under
the insurance policy to which such deductible relates, in the event that Tenant
is permitted to and self-insures any risk which would have been coveted by the
insurance required to be carried by Tenant pursuant to Article XVI of the Lease,
or if Tenant fails to carry any insurance required to be carried by Tenant
pursuant to Article XVI of this Lease, then all loss or damage to Tenant, its
leasehold interest, its business, its property, the Premises or any additions or
improvements thereto or contents thereof shall be deemed covered by and
recoverable by Tenant under valid and collectible policies of insurance,
<PAGE>
XVIII. Landlord's Insurance. Landlord shall maintain property insurance on
--------------------
the Building in such amounts as Landlord reasonably elects, The cost of such
insurance shall be included as a part at the Basic Costs, and payments for
losses thereunder shall be made solely to Landlord or the Mortgagees of Landlord
as their interests shall appear, Landlord may, at its option, elect to self
insure.
XIX. Casualty Damage. If the Premises or any part thereof shall be damaged
---------------
by fire or other casualty, Tenant shall give prompt written notice thereof to
Landlord. In case the Building shall be so damaged that substantial alteration
or reconstruction of the Building shall, in Landlord's sole opinion, be required
(whether or not the Premises shall have bean damaged by such casualty) or in the
event the Premises have been damaged and there is less than one (1) year of the
Lease Term remaining on the date of such casualty or in the event any Mortgagee
should require that the insurance proceeds payable as a result of a casualty be
applied to the payment of the mortgage debt or in the event of any material
uninsured loss to the Building, Landlord may, at tie option, terminate this
Lease by notifying Tenant in writing of such termination within ninety (90) days
after the date of such casualty. Such termination shall be effective as of the
date of fire or casualty, with respect to any portion of the Premises that was
rendered untenantable, and the date specified in Landlord's notice, with respect
to any portion of the Premises that remained tenantable.
In addition to Landlord's rights to terminate as provided herein, Tenant
shall have the following rights to terminate this Lease:
A. if (1) a substantial portion of the Premises has bean damaged by tire
or other casualty; (2) there is less than one (1) year of the Lease Term
remaining on the date of such casualty; 3) the casualty was not caused by the
negligence or willful misconduct of Tenant or its agents, employees or
contractors; and 4)Tenant provides Landlord with written notice of its intent to
terminate within thirty (30) days after the date of the lire or other casualty;
B. if (1) a substantial portion of the Premises has been damaged by fire
or other casualty; 2) there are less then two (2) years, but not less than 12
months, of the Lease Term remaining on the date of such casualty and the
Completion Estimate (defined below) indicates that the Premises cannot be made
tenantable within ninety (90) days of the date of such casualty; (3) the
casualty was not caused by the negligence or willful misconduct of Tenant or its
agents, employees or contractors, and (4) Tenant provides Landlord with written
notice of its intent to terminate within ten (10) days after Tenant's receipt of
the Completion Estimate.
If neither Landlord nor Tenant elect to terminate this Lease, Landlord
shall commence and proceed with reasonable diligence to restore the Building
(provided that Landlord shall not be required to restore any unleased premises
in the Building) and the Leasehold improvements (but excluding any improvements,
alterations or additions made by Tenant in violation of this Lease) located
within the Premises, if any, which Landlord has insured to substantially the
same condition they were in immediately prior to the happening of the casualty.
Notwithstanding the foregoing, Landlord's obligation to restore the Building,
and the Leasehold improvements, if any, shall not require Landlord to expend for
such repair and restoration work more than the insurance proceeds actually
received by the Landlord as a result of the casualty. When repairs to the
<PAGE>
Premises have been completed by Landlord, Tenant shall complete the restoration
or replacement of all Tenant's Property necessary to permit Tenant's re-
occupancy of the Premises, and Tenant shall present Landlord with evidence
satisfactory to Landlord of Tenant's ability to pay such costs prior to
Landlord's commencement of repair and restoration of the Premises, in the event
that all or any portion of the Premises shall be made untenantable by a tire or
other casualty. Landlord shall with reasonable promptness, cause an architect
or general contractor selected by Landlord to estimate the amount of time
required to substantially complete repair and restoration of the Premises and
make the Premises tenantable again, using standard working methods (the
"Completion Estimate"). Except as otherwise provided herein, it the Completion
Estimate indicates that the Premises cannot be made tenantable within nine (9)
months from the date the repair and restoration is started, either party shall
have the right to terminate this Lease by giving written notice to the other of
such election within ten (10) days after its receipt of the Completion Estimate.
if the Completion Estimate indicates that the Premises can be made tenantable
within nine (9) months from the date the repair and restoration is started and
neither Landlord nor Tenant have not otherwise exercised their respective rights
to terminate the Lease pursuant to the terms hereof, or if the Completion
Estimate indicates that the Premises cannot be made tenantable within nine (9)
months but neither panty terminates this Lease pursuant to this Article XIX,
Landlord shall proceed with reasonable promptness to repair and restore the
Premises. Notwithstanding the foregoing, it Landlord does not substantially
complete the repair and restoration the Premises within two (2) months after the
expiration of the estimated period of time set forth in the Completion Estimate,
which period shall be extended to the extent of any Reconstruction Delays, then
Tenant may terminate this lease by written notice to Landlord within fifteen
(15) days after the expiration or such period, as the same may be extended. For
purposes of this Lease, the term "Reconstruction Delays" shall mean: (i) any
delays caused by the insurance adjustment process, (ii) any delays caused by
Tenant, and (iii) any delays caused by events of Force Majeure. Landlord shall
not be liable for any inconvenience or annoyance to Tenant or injury to the
business of Tenant resulting in any way from such damage or the repair thereof,
except that, subject to the provisions of the next sentence, Landlord shall
allow Tenant a fair diminution of Rent on a per diem basis during the time end
to the extent the Premises are untenentable. If the Premises or any other
portion of the Building is damaged by fire or other casualty resulting from the
fault or negligence of Tenant or any of Tenant's agents, employees, or
contractors, the Rent hereunder shall not be diminished during any period during
which the Premises, or any portion thereof, is untenantable, and Tenant shall be
liable to Landlord for the cost of the repair and restoration of the Building
caused thereby to the extent such cost and expense is not covered by insurance
proceeds, Landlord and Tenant hereby waive the provisions of any law from time
to time in effect during the Lease Term relating to the effect upon leases of
partial or total destruction of leased property. Landlord and Tenant agree that
their respective rights in the event of any damage to or destruction of the
Premises shall be those specifically set forth herein.
XX. Demolition. INENTINALLY OMITTED.
----------
XXI. Condemnation. If 1. the whole or any substantial part of the Premises or
------------
2. any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building comparable to its use on
the Commencement Pate, shall be taken on condemned for any public or quasi-
public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, then Landlord may, at
its
<PAGE>
option, terminate this Lease effective as of the data the physical taking of
said Premises or said portion of the Building or Property shall occur. In the
event this Lease is not terminated, the Rentable Area or the Building, the
Rentable Area of the Premises and Tenant's Pro Rate Share shall be appropriately
adjusted. In addition, Rent for any portion of the Premises so taken or
condemned shall be abated during the unexpired term of this Lease effective when
the physical taking of said portion of the Premises shall occur. All
compensation awarded for any such taking or condemnation, or sale proceeds in
lieu thereof, shall be the property of Landlord, and Tenant shall have no claim
thereto, the same being hereby expressly waived by Tenant, except for any
portions of such award or proceeds which are specifically allocated by the
condemning or purchasing party for the taking of or damage to trade fixtures of
Tenant, which Tenant specifically reserves to itself, provided; however, Tenant
may file a claim at its sole cost and expense and receive an award for the
Tenant's Property, any unamortized Tenant Improvements and Tenant's reasonable
relocation expenses, provided the filing of such claim does not adversely affect
or diminish the award which would otherwise have been recovered by Landlord had
Tenant not filed such a claim and received such award.
XXII. Events of Default. The following events shall be deemed to be events of
-----------------
default under this Lease:
A. Tenant shall fail to pay when due any Base Rental Additional Base
Rental or other Rent under this Lease, and such failure shall continue for five
(5) days alter delivery of notice to Tenant (hereinafter sometimes referred to
as a "Monetary Default").
B. Any failure by Tenant (other than a Monetary Default) to comply with
any term, provision or covenant of this Lease, which failure is not cured within
twenty (20) days after delivery to Tenant of notice of the occurrence of such
failure (or such longer period of lime as may be reasonably necessary to cure
(not to exceed 60 days), provided that Tenant commences to cure such default
within ten (10) days after notice from Landlord and, from time to time upon
request of Landlord, furnishes Landlord with evidence that demonstrates, in
Landlord's reasonable judgment, that Tenant is diligently pursuing a course that
will remedy such failure) provided that if any such failure creates a hazardous
condition, such failure must be cured immediately.
C. Tenant or any Guarantor Shall become insolvent, or shall make a
transfer in fraud of creditors, or shall commit an act of bankruptcy or shall
make an assignment for the benefit of creditors, or Tenant or any Guarantor
shall admit in writing its inability to pay its debts as they become due.
D. Tenant or any Guarantor shall file a petition under any section or
chapter of the United States Bankruptcy Code, as amended, pertaining to
bankruptcy, or under any similar law or statute of the United States or any
State thereof, on Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings tiled against Tenant or any Guarantor thereunder; or a
petition or answer proposing the adjudication of Tenant or any Guarantor as a
debtor or its re-organization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such petition or
answer shall not be discharged or denied within sixty (60) days after the filing
thereof.
<PAGE>
E. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant or any Guarantor or of the Premises or of any of
Tenant's property located thereon in any proceeding brought by Tenant or any
Guarantor, or any such receiver or trustee shall be appointed in any proceeding
brought against Tenant or any Guarantor and shall not be discharged within sixty
(60) days after such appointment or Tenant or such Guarantor shall consent to or
acquiesce in such appointment.
F. The leasehold estate hereunder shall be taken on execution or other
process of law or equity in any action against Tenant.
G. Tenant shall abandon or vacate any substantial portion of the Premises
without the prior written permission of Landlord.
H. Tenant shall fail to take possession of and occupy the Promises within
thirty (30) days following the Commencement Date and thereafter continuously
conduct its operations in the Premises for the Permitted Use as set forth in
Paragraph IV hereof.
I. The liquidation, termination, dissolution, forfeiture of right to do
business or death of Tenant or any Guarantor.
J. Tenant shall be in default beyond any notice and cure period under any
other lease with Landlord.
XXIII. Remedies.
--------
A. Upon the occurrence of any event or events of default under this
Lease, whether enumerated in Article XXII or not, Landlord shall have the option
to pursue any one or more of the following remedies without any notice (except
as expressly prescribed herein) or demand whatsoever (and without limiting the
generality of the foregoing, Tenant hereby specifically waives notice and demand
for payment of Rent or other obligations due and waives any and all other
notices or demand requirements imposed by Applicable law):
1. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender the
Premises upon termination of the lease hereunder, Landlord may without
prejudice to any other remedy which it may have, enter upon and take
possession of the Premises and expel or remove Tenant and any other person
who may be occupying said Premises, or any part thereof. by force. lf
necessary, and Tenant hereby agrees to pay to Landlord on demand the amount
of all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises on
satisfactory terms or otherwise, specifically including but not limited to
all Costs of Reletting (hereinafter defined) and any deficiency that may
arise by reason of any reletting or failure to relet. Landlord agrees to
use reasonable efforts to mitigate damages, provided that such reasonable
efforts shall not require Landlord to relet the Premises in preference to
any other space in the Building or to relet the Premises to any party that
Landlord could reasonably reject as a transferee pursuant to Article XIII
hereof.
2. Enter upon and take possession of the Premises and expel or
remove Tenant or any other person who may be occupying said Premises, or
any part thereof, by force, if necessary, without having any civil or
criminal liability therefor and without terminating this Lease, Landlord
may (but shall be under no obligation to) relet the
<PAGE>
Premises or any pail thereof for the account of Tenant, in the name of
Tenant or Landlord or otherwise, without notice to Tenant for such term or
terms which may be greater or less than the period which would otherwise
have constituted the balance of the Lease Term and on such conditions
(which may include concessions, free rent and alterations of the Premises)
and for such uses as Landlord in its absolute discretion may determine, and
Landlord may collect and receive any rents payable by reason of such
reletting. Tenant agrees to pay Landlord on demand all Costs of Reletting
and any deficiency that may arise by reason of such reletting or failure to
relet. Landlord shall not be responsible or liable for any failure to relet
the Premises or any part thereof or for any failure to collect any Rent due
upon any such reletting. No such re-entry or taking of possession of the
Premises by Landlord shall be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such termination is
given to Tenant. Landlord agrees to use reasonable efforts to mitigate
damages, provided, that such reasonable efforts shall not require Landlord
to relet the Premises in preference to any other space in the Building or
to relet the premises to any party that Landlord could reasonably reject as
a transferee pursuant to Article XIII hereof.
3. Enter upon the Premises by force if necessary and do whatever
Tenant is obligated to do under the terms of this Lease, and Tenant agrees
to reimburse Landlord on demand for any expense which Landlord may incur in
thus affecting compliance with Tenant's obligations under this Lease
together with interest at the lesser of a per annum rate equal to: a. the
Maximum Rate, or b. the Prime Rate plus five percent (5%), and Tenant
further agrees that Landlord shall not be liable for any damages resulting
to Tenant from such action, whether caused by the negligence of Landlord or
otherwise.
4. In order to regain possession of the Premises and to deny Tenant
access thereto in any instance in which Landlord has terminated the Lease
or Tenant's right to possession, or to limit access to the Premises in
accordance with local law in the event of a default by Tenant, Landlord or
its agent may, at the expense and liability of the Tenant, alter or change
any or all locks or other security devices controlling access to the
Premises without posting or giving notice of any kind to Tenant. Landlord
shall have no obligation to provide Tenant a key or grant Tenant access to
the Premises so long as Tenant is in default under this Lease. Tenant shall
not be entitled to recover possession of the Premises, terminate this
Lease, or recover any actual, incidental, consequential, punitive,
statutory or other damages or award of attorneys' fees, by reason of
Landlord's alteration or change of any lock or other security device and
the resulting exclusion from the Premises of the Tenant or Tenant's agents,
servants, employees, customers, licensees, invitees or any other persons
from the Premises. Landlord may, without notice, remove and either dispose
of or store, at Tenant's expense, any property belonging to Tenant that
remains in the Premises after Landlord has regained possession thereof.
5. Terminate this Lease, in which event, Tenant shall immediately
surrender the Premises to Landlord and pay to Landlord the sum of: a. all
Rent accrued hereunder through the date of termination, and, upon
Landlord's determination thereof, b. an amount equal to (i) the total Rent
that Tenant would have been required to pay for the remainder of the Lease
Term discounted to present value at the prime rate then in effect, minus
(ii) the then present fair rental value of the Premises for the remainder
of the Lease Term, similarly discounted, after deducting all anticipated
Costs or Reletting. Landlord's
<PAGE>
determination of such amount shall be conclusive and binding on Tenant, and
shall be deemed to have been made in good faith, subject only to manifest
error.
B. For purposes of this Lease, the term "Costs of Reletting shall mean
all costs and expenses incurred by Landlord in connection with the reletting of
the Premises, including without limitation, Rent loss during the period the
Premises are vacant prior to reletting, the cost of cleaning, renovation,
repairs, decoration and alteration of the Premises for a new tenant or tenants,
advertisement, marketing, brokerage and legal fees (if and to the extent
permitted by law), the cost of protecting or caring for the Premises while
vacant, the cost of reletting and storing any properly located on the premises,
any increase in insurance premiums caused by the vacancy of the Premises and any
other out-of-pocket expenses incurred by Landlord including tenant inducements
such as the cost of moving the new tenant or tenants and the cost of assuming
any portion of the existing lease(s) of the new tenant(s).
C. Except as otherwise herein provided, no repossession or re-entering on
the Premises or any part thereof pursuant to Article XXIII hereof or otherwise
shall relieve Tenant or any Guarantor of its liabilities and obligations
hereunder, all of which shall survive such repossession or re-entering.
Notwithstanding any such repossession or re-entering by reason of the occurrence
of an event of default, Tenant will pay to Landlord the Rent required to be paid
by Tenant pursuant to this Lease.
D. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and each and every right
and remedy shall be cumulative and in addition to any other right or remedy
given hereunder or now or hereafter existing by agreement, applicable law or in
equity. In addition to other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive relief, or to
a decree compelling performance of any at the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to Landlord at law
or in equity. Forbearance by Landlord to enforce one or more of the remedies
herein provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default.
E. This Article XXIII shall be enforceable to the maximum extent such
enforcement is not prohibited by applicable law, and the unenforceability of any
portion thereof shall not thereby render unenforceable any other portion.
XXIV. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY
-----------------------
CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR
LANDLORD HEREUNDER) TO TENANT SHALL BE LIMITED TO THE INTEREST OF LANDLORD IN
THE BUILDING, AND TENANT AGREES TO LOOK SOLELY TO LANDLORD'S INTEREST IN THE
BUILDING FOR THE RECOVERY OF ANY JUDGMENT OR AWARD AGAINST THE LANDLORD, IT
BEING INTENDED THAT LANDLORD SHALL NOT BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY. TENANT HEREBY COVENANTS THAT, PRIOR TO THE FILING OF ANY SUIT FOR
AN ALLEGED DEFAULT BY LANDLORD HEREUNDER, IT SHALL GIVE LANDLORD AND ALL
MORTGAGEES WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR DEED OF TRUST LIENS
ON THE PROPERTY, BUILDING OR PREMISES NOTICE AND REASONABLE TIME TO CURE SUCH
ALLEGED DEFAULT BY LANDLORD. IN ADDITION, TENANT ACKNOWLEDGES THAT EQUITY
OFFICE
<PAGE>
PROPERTIES, INC. IS ACTING SOLELY IN ITS CAPACITY AS AGENT FOR LANDLORD AND
SHALL NOT BE LIABLE FOR ANY OBLIGATIONS, LIABILITIES, LOSSES OR DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS LEASE, ALL OF WHICH ARE EXPRESSLY WAIVED BY
TENANT.
XXV. No Waiver. Failure of Landlord to declare any default immediately upon
---------
its occurrence, or delay in taking any action in connection with an event of
default shall not constitute a waiver of such default, nor shall it constitute
an estoppel against Landlord, but Landlord shall have the right to declare the
default at any time and take such action as is lawful or authorized under this
Lease. Failure by Landlord to enforce its rights with respect to any one
default shall not constitute a waiver of its rights with respect to any
subsequent default. Receipt by Landlord of Tenant's keys to the Premises shall
not constitute an acceptance or surrender of the Premises.
XXVI. Event of Bankruptcy. In addition to, and in no way limiting the other
-------------------
remedies set forth herein, Landlord and Tenant agree that if Tenant ever becomes
the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then:
A. "Adequate protection" of Landlord's interest ln the Premises pursuant
to the provisions of Section 361 and 353 (or their successor sections) of the
Bankruptcy Code, 11 U.S.C. Section 101 et seq., (such Bankruptcy Code as amended
from time to time being herein referred to as the "Bankruptcy Code"), prior to
assumption and/or assignment of the Lease by Tenant shall include, but not be
limited to all (or any part) of the following:
1. the continued payment by tenant of the Base Rental and all other
Rant due and owing hereunder and the performance of all other covenants and
obligations hereunder by tenant;
2. the hiring of security guards to protect the Premises if Tenant
abandons and/or ceases operations; such obligation of Tenant only to be
effective so long as Tenant remains in possession and control of the
Premises to the exclusion of Landlord;
3. the furnishing of an additional/new security deposit by Tenant in
the amount of three (3) times the then-currant monthly Base Rental.
B. "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will include (but not
be limited to) payment of an additional/new Security Deposit in the amount of
three (a) times the then-current Base" Rental payable hereunder.
C. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, than be deemed without further act or dead to
have assumed all of the obligations of Tenant arising "under this Lease on and
after the effective data of such assignment. Any such assignee shall, upon
demand by Landlord, execute and deliver to Landlord an instrument confirming
such assumption of liability.
<PAGE>
D. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of the Landlord under this Lease, whether or
not expressly denominated as "Rent", shall constitute "rent" for the purposes at
Section 502(b) (6) of the Bankruptcy Code.
E. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered to Landlord (including Base Rentals and
other Rent hereunder), shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the bankruptcy estate of
Tenant. Any and all monies or other considerations constituting Landlord's
property under the preceding sentence not paid or delivered to Landlord shall be
held in trust by Tenant or Tenant's bankruptcy estate for the benefit of
Landlord and shall be promptly paid to or turned over to Landlord.
F. If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to the Tenant, then notice of such proposed offer/assignment, setting forth 1,
the name and address of such person or entity, 2. all of the terms and
conditions of such offer, and 3. the adequate assurance to be provided Landlord
to assure such persons or entity's future performance under the Lease, shall be
given to Landlord by Tenant no later than twenty (20) days after receipt by
tenant, but in any event no later than ten (10) days prior to the date that
Tenant shall make application to a court of competent jurisdiction for authority
and approval to enter into such assumption and assignment, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to Tenant
given at any time prior to the effective date of such proposed assignment, to
accept an assignment of this Lease upon the same terms and conditions and for
the same consideration, if any, as the bona fide offer made by such persons or
entity, less any brokerage commission which may be payable out of the
consideration to be paid by auth person for the assignment of this Lease.
G. To the extent permitted by law, Landlord and Tenant agree that this
Lease is a contract under which applicable law excuses Landlord from accepting
performance from (or rendering performance to) any person or entity other than
Tenant within the meaning of Sections 365(c) and 365(a) (2) of the Bankruptcy
Code.
XXVII. Quiet Enjoyment. Tenant shall, and may peacefully have, hold, and enjoy
---------------
the Premises, subject to the other terms of this Lease (including, without
limitation, Article XXX hereon), provided that Tenant pays the rent herein
recited to be paid by Tenant and performs all of Tenants covenants and
agreements herein contained. This covenant and any and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Landlord's interest hereunder.
XXVIII. Relocation, Landlord, at its expense, shall be entitled to cause Tenant
----------
to relocate from the Premises to comparable space containing approximately the
same Rentable Area as the Premises (the "Relocation Space") within the Building
at any time, upon one hundred arid twenty (120) days prior written notice to
Tenant, provided that: (i) the Relocation Space shall be located on or above the
third floor of the Building; and (ii) the Relocation Space shall be
substantially similar in physical layout and level of Improvements as compared
to the Premises; and (iii) Tenant shall not be required to move into the
Relocation Space prior to the substantial
<PAGE>
completion of any construction to be performed by Landlord in said Relocation
Space. If and to the extent that any design or space planning shall be required
in connection with said relocation, such design or space planning shall be
subject to the mutual and reasonable approval of both Landlord and Tenant.
Landlord agrees to reimburse Tenant for all reasonable costs actually incurred
in connection with the Relocation, including the cost of reprinting existing
stationery and business cards, moving telephones and computers, graphics and
similar items of expense. Such a relocation shall not affect this Lease except
that from and after the date of such relocation, "Premises" shall refer to the
Relocation Space into which Tenant has bean moved rather than the original
Premises as herein defined, and the Base Rental shall be adjusted so that
Immediately following such relocation the Base Rental for the Relocation Space
per annum on a per square foot of Rentable Area basis shall be the same as the
Base Rental per annum immediately prior to such relocation for the original
Premises on a per square toot of Rentable Area basis. Notwithstanding anything
contained herein to the contrary, Landlord may not exercise its rights to
relocate the Tenant at any time during the first four (4) years of the Lease
Term.
XXIX. Holding Over. In the event of holding over by Tenant after expiration or
------------
other termination at this Lease or in the event Tenant continues to occupy the
Premises after the termination of Tenant's right of possession pursuant to
Articles XXII and XXIII hereof, occupancy of the Premises subsequent to such
termination or expiration shall be that of a tenancy on a day-to-day basis for
the first week (i.e. seven calendar days) of such holding over and Tenant shall
pay rent (on a per diem basis) equal to the sum of the Base Rental and
Additional Base Rental due for the period immediately preceding such holding
over). If after the first week of such holding over tenant continues to occupy
the Premises, such occupancy shall be deemed to create a tenancy at sufferance
and in no event for month-to-month or year-to-year, but Tenant shall throughout
the entire holdover period pay rent (on a per month basis without reduction for
any partial months during any such holdover) equal to 150% of the sum of the
Base Rental and Additional Base Rental due for period immediately preceding such
holding over. No holding over by Tenant or payments of money by Tenant to
Landlord after the expiration of the term of this Lease shall be construed to
extend the Lease Term or prevent Landlord from recovery of immediate possession
of the Premises by summary proceedings or otherwise. Tenant shall be liable to
Landlord for all damage, including any consequential damage, which Landlord may
suffer by reason of any holding over by Tenant, and Tenant shall indemnify
Landlord against any and all claims made by any other tenant or prospective
tenant against Landlord for delay by Landlord in delivering possession of the
Premises to such other tenant or prospective tenant.
XXX. Subordination to Mortgages. Tenant accepts this Lease subject and
--------------------------
subordinate to any mortgage, deed of trust, ground lease or other lien presently
existing or hereafter arising upon the Premises, or upon the Building and/or the
Property and to any renewals, modifications; refinancings and extensions thereof
(any such mortgage, deed of trust, lease or other lien being hereinafter
referred to as a "Mortgage", and the person or entity having the benefit of same
being referred to hereinafter as a "Mortgagee"), but Tenant agrees that any such
Mortgagee shall have the right at any time to subordinate such Mortgage to this
Lease on such terms and subject to such conditions as such Mortgagee may deem
appropriate in its discretion. This clause shall be
<PAGE>
self-operative and no further instrument of subordination shall be required.
However, Landlord is hereby irrevocably vested with full power and authority to
subordinate this Lease to any Mortgage, and Tenant agrees upon demand to execute
such further instruments subordinating this Lease, acknowledging the
subordination of this Lease or attorning to the holder of any such Mortgage as
Landlord may request. If any person shall succeed to all or part of Landlord's
interests in the Premises whether by purchase, foreclosure, deed in lieu of
foreclosure power of sale, termination of lease or otherwise, and if and as so
requested or required by such successor-in-interest, Tenant shall, without
charge, attorn to such successor-in-interest. Tenant agrees that it will from
time to time upon request by Landlord and, within five days of the date of such
request, execute and deliver to such persons as Landlord shall request an
estoppel certificate or other similar statement in recordable form certifying
that this Lease is unmodified and in full force and effect (or If there have
been modifications, that the same is in full force and effect as so modified),
stating the dates to which Rent and other charges payable under this Lease have
been paid, stating that Landlord is not in default hereunder (or if Tenant
alleges a default plating the nature of such Alleged default) and further
stating such other matters as Landlord shall reasonably require
XXXI. Attorney's Fees. In the event that Landlord should retain counsel
---------------
and/or institute any suit against Tenant for violation of or to enforce any of
the covenants or conditions of this Lease, or should Tenant Institute any suit
against Landlord for violation of any of the covenants or conditions of this
Lease, or should either party intervene in any suit in which the other is a
party to enforce or protect its interest or rights hereunder, the prevailing
party in any such suit shall be entitled to all of its costs, expenses and
reasonable lees of its attorney(s) (if and to the extent permitted by law) in
connection therewith.
XXXII. Notice. Whenever any demand, request, approval, consent or notice
------
("Notice") shall or may be given to either of the parties by the other, each
such Notice shall be in writing and shall be sent by registered or certified
mail with return receipt requested, or sent by overnight courier service (such
as Federal Express) at the respective addresses of the parties for notices as
set forth in Section 1.A.6. of this Lease provided that if Tenant has vacated
the Premises or is in default of this Lease Landlord may serve Notice by any
manner permitted by Law. Any Notice under this Lease delivered by registered or
Certified mail shall be deemed to have been given and effective on the earlier
of (a) the third day following the day on which the same shall have been mailed
with sufficient postage prepaid or (b) the delivery data Indicated on the return
receipt. Notice sent by overnight courier service shall be deemed given and
effective upon the day after such notice is delivered to or picked up by the
overnight courier service. Either party may, at any time, change its Notice
Address by giving the other party Notice stating the change and setting forth
the new address.
XXXIII. Landlord's Lien. in addition to any statutory lien for rent in
---------------
Landlord's favor; Landlord (the secured party for purposes hereof) shall have
and Tenant (the debtor for purposes hereof) hereby grants to Landlord, an
express contract lien and a continuing security Interest to secure the payment
of all Rent due hereunder from Tenant, upon all goods, wares, equipment,
<PAGE>
fixtures, furniture, inventory, accounts, contract rights, chattel paper and
other personal property of Tenant (and any transferees or other occupants of the
Premises) presently or hereafter situated on the Premises and upon all proceeds
of any Insurance which may accrue to Tenant by reason of damage or destruction
of any such property. In the event of a default under this Lease, Landlord
shall have, in addition to any other remedies provided herein or by, law, all
rights and remedies under the Uniform Commercial Code of the state in which the
Premises is located, including without limitation the right to sell the property
described in this paragraph at public or private sale upon ten (10) days notice
to Tenant, which notice Tenant hereby agrees is adequate and reasonable. Tenant
hereby agrees to execute such other instruments necessary or desirable in
Landlord's discretion to perfect the security interest hereby created. Any
statutory lien for rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto. Landlord and Tenant
agree that this Lease and the security interest granted herein serve as a
financing statement, and a copy or photographic or other reproduction of this
Paragraph of this Lease may be filed of record by Landlord and have the same
force and effect as the original. Tenant warrants and represents that the
collateral subject to the security interest granted herein is not purchased or
used by Tenant for personal, family or household purposes. Tenant further
warrants and represents to Landlord that the lien granted herein constitutes a
first and superior lien and that Tenant will not allow the placing of any other
lien upon any of the property described in this Paragraph without the prior
written consent of Landlord.
XXXIV. Excepted Rights. This Lease does not grant any rights to light or air
---------------
over or about the Building. Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Premises, all rights
to and the land and Improvements below the Improved floor level of the Premises,
the Improvements and rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein. Landlord further
reserves to itself the right from time to time: A. to change the Building's name
or street address; B. to install, fix and maintain signs on the exterior and
interior of the Building; C. to designate and approve window coverings; D. to
make any decorations, alterations, additions, Improvements to the Building, or
any part thereof (Including the Premises) which Landlord shall desire, or deem
necessary for the safety, protection, preservation or improvement of the
Building, or as Landlord may be required to do by law; E. to have access to the
Premises to perform its duties and obligations and to exercise its rights under
this Lease; F. to retain at all times and to use pass-keys to all locks within
and into the Premises; G. approve the weight, size, or location of heavy
equipment, articles in and about the Premises; H. to close or restrict access to
the Building at all times other then Normal Business Hours subject to Tenant's
right to admittance at all times under such regulations as Landlord may
prescribe from time to time, or to close (temporarily or permanently) any of the
entrances to the Building: I. to change the arrangement and/or location of
entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building; and J. to grant to anyone the
exclusive right to conduct any business or undertaking in the Building.
Landlord, in accordance with Article XII hereof, shall have the right to enter
the Premises in connection with the exercise of
<PAGE>
any of the rights set forth herein and such entry into the Premises and the
performance of any work therein shall not constitute a constructive eviction or
entitle Tenant to any abatement or reduction of Rent by reason thereof.
XXXV. Surrender of Premises. At the expiration or earlier termination of this
---------------------
Lease or Tenant's right of possession hereunder, Tenant shall quit and surrender
the Premises to Landlord, broom clean, and in good order, condition and repair,
ordinary wear and tear excepted. If Tenant fails to remove any of Tenant's
Property within one (1) day after the termination of this Lease or Tenant's
right to possession hereunder, such Tenant's Property, or any portion thereof
designated by Landlord, shall at Landlord's option, and upon notice to Tenant,
(a) be conclusively presumed to have been abandoned by Tenant and title to such
Items shall pass to Landlord, and/or (b) be removed and/or stored by Landlord at
the risk, cost and expense of Tenant and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall
pay Landlord, upon demand, any and all expenses caused by such removal and all
storage charges against such property so long as the same shall be in the
possession of Landlord or under the control of Landlord.
XXXVI. Miscellaneous.
-------------
A. If any term or provision of this Lease, or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held Invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and enforced to the fullest extent permitted by law.
B. Tenant agrees not to record this Lease or any memorandum hereof
without Landlord's prior written consent.
C. This Lease and the rights and obligations of the parties hereto shall
be interpreted, construed and enforced in accordance with the laws of the state
In which the Building is located.
D. Events of "Force Majeur" shall include strikes, riots, acts of God,
shortages of labor or materials, war, governmental law, regulations or
restrictions and any other cause whatsoever that is beyond the control of
Landlord. Whenever a period of time is herein prescribed for the taking of any
action by Landlord, Landlord shall not be liable or responsible for, and there
shall be excluded from the computation of such period of time, any delays due to
events of Force Majeure.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations hereunder and in the Building and
Property referred to herein, and in such. event and upon such transfer Landlord
shall be released from any further obligations hereunder,
<PAGE>
and Tenant agrees to look solely to such successor in interest of Landlord for
the performance of such obligations.
F. Tenant hereby represents to Landlord that it has dealt directly with
and only with the Broker as a broker in connection with this Lease. Tenant
agrees to indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any brokers claiming to nave represented Tenant in connection
with this Lease.
G. If there is more than one Tenant, or the Tenant is comprised of more
than one person or entity, the obligations hereunder imposed upon Tenant shall
be joint and several obligations of all such parties. All notices, payments,
and agreements given or made by, with or to any one of such persons or entities
shall be deemed to have been given or made by, with or to all of them.
H. In the event Tenant is a corporation (including any form of
professional association), partnership (genera! or limited), or other form of
organization other than an Individual, then each individual executing or
attesting this Lease on behalf of Tenant hereby covenants warrants and
represents: 1. that such individual is duly authorized to execute or attest and
deliver this Lease on behalf of Tenant in accordance with the organizational
documents of Tenant; 2. that this Lease is binding upon Tenant; 3, that Tenant
is duly organized and legally existing in the state of its organization, and is
qualified to do business in the state in which the Premises is located; 4. that
upon request, Tenant will provide Landlord with true and correct copies of all
organizational documents of Tenant and any amendments thereto; and 5. that the
execution and delivery of this Lease by Tenant will not result in any breach of,
or constitute a default under any mortgage, dead of trust, lease, loan, credit
agreement, partnership agreement or other contract or instrument to which Tenant
is a party or by which Tenant may be bound. If Tenant is a corporation, Tenant
will, prior to the Commencement Date, deliver to Landlord a copy of a resolution
of Tenant's board of directors authorizing or ratifying the execution and
delivery of this Lease, which resolution will be duly certified to Landlord's
satisfaction by the secretary or assistant secretary of Tenant.
I. Tenant acknowledges that the financial capability of Tenant to perform
its obligations hereunder is material to Landlord and that Landlord would not
enter into this Lease but for its belief, based on its review of Tenant's
financial statements, that Tenant is capable of performing such financial
obligations. Tenant hereby represents, warrants and certifies to Landlord that
its financial statements previously furnished to Landlord were at the time given
true and correct in all material respects and that there have been no material
subsequent changes thereto as of the date of this Lease. At any time during the
Lease Term, Tenant shall provide Landlord, upon ten (10) days prior written
notice from Landlord, with a current financial statement and financial
statements of the two (2) years prior to the current financial statement year.
Such statement shall be prepared in accordance with generally accepted
accounting principles and if such is the normal practice of Tenant, shall be
audited by an independent certified pubic accountant.
<PAGE>
J. Except as expressly otherwise herein provided, with respect to all
required acts of Tenant, time is of the essence of this Lease. This Lease shall
create the relationship of Landlord and Tenant between the parties hereto, and
no estate shall pass out of Landlord. Tenant has only a usufruct, not subject
to purchase or sale, which may not be assigned by Tenant except as expressly
provided in this Lease.
K. This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord and Tenant and their
respective permitted successors and assigns.
L. Notwithstanding anything to the contrary contained in this Lease, the
expiration of the Lease Term, whether by lapse of time or otherwise, shall not
relieve Tenant from Tenant's obligations accruing prior to the expiration of the
Lease Term.
M. The headings and titles to the paragraphs of this Lease are for
convenience only and shall have no effect upon the construction or
interpretation of any part hereof.
N. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery hereof does not constitute an offer to Tenant or
option. This Lease shall not be effective until an original of this Lease
executed by both Landlord and Tenant and an original Guaranty, if any, executed
by each Guarantor is delivered to and accepted by Landlord, and this Lease has
been approved by Landlord's Mortgagees, if required.
XXXVII. Entire Agreement. This Lease Agreement, including the following
-------
Exhibits:
Exhibit A - Outline and Location of Premises
---------
Exhibit B-1 - Schedule of Base Rental
-----------
Exhibit B-2 - Payment of Base Costs
-----------
Exhibit C - Work Letter Agreement (if required)
---------
Exhibit D - Rules and Regulations
---------
Exhibit E - Additional Provisions
---------
Exhibit F - Parking Agreement
---------
constitutes the entire agreement between the parties hereto with respect tot he
subject matter of this Lease. TENANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT
LANDLORD HAS NOT MADE AND IS NOT MAKING, AND TENANT, IN EXECUTING AND DELIVERING
THIS LEASE, IS NOT RELYING UPON, ANY WARRANTIES, REPRESENTATIONS, PROMISES OR
STATEMENTS, EXCEPT TO THE EXTENT THAT THE SAME ARE EXPRESSLY SET FORTH IN THIS
LEASE. ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN THE PARTIES
ARE MERGED IN
<PAGE>
THIS LEASE WHICH ALONE FULLY AND COMPLETELY EXPRESSES THE AGREEMENT OF THE
PARTIES, NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION NOT EMBODIED
IN THIS LEASE. THIS LEASE MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY
LANDLORD AND TENANT. LANDLORD AND TENANT EXPRESSLY AGREE THAT THERE ARE AND
SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, SUITABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
ALL OF WHICH ARE HEREBY WAIVED BY TENANT, AND THAT THERE ARE NO WARRANTIES WHICH
EXTEND BEYOND THOSE EXPRESSLY SET FORTH IN THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease in multiple
original counterparts as of the day and year first above written.
ATTEST: LANDLORD: 1800 SHERMAN ASSOCIATES, an
Illinois general partnership
/s/ Mark E. Krason
------------------------------
Name (print): Mark E. Krason BY: EQUITY OFFICE PROPERTIES, INC.,
---------------
as agent
/s/ Irene Wodarczyk By: /s/ Pamela Boneham
------------------------------ -----------------------------
Name (print): Irene Wodarczyk Name: Pamela Boneham
--------------- ---------------------------
Title: Vice President
--------------------------
ATTEST: TENANT: CASS COMMUNICATIONS INC., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
--------------------------------- ------------------------------------
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
------------------- --------------------------------
Title: President
_________________________________ -------------------------------
Name (print):____________________
[FLOOR PLAN APPEARS HERE]
<PAGE>
EXHIBIT B-1
SCHEDULE OF BASE RENTAL
-----------------------
This Exhibit is attached to and made a part of the Lease dated by and between
1800 Sherman Associates, by its agent Equity Office Properties, Inc ("Landlord")
-----------------------
and Case Communications, Inc. ("Tenant") for space in the Building indicated at
-------------------------
1800 Sherman, Evanston, IL 60201.
--------------------------------
A. Tenant shall pay Landlord the sum of Two Million Eight Hundred Forty-
-------------------------------
Three Thousand Seven Hundred Fifty and 94/100 Dollars ($2,843,750.94) as Base
---------------------------------------------
Rental for the Lease Term in monthly installments as follows (except to the
extent such schedule is adjusted as provided below):
1. 12 equal monthly Installments of $19,791.67 each payable on or before
-- ---------
the first day of each month during the period beginning August 1, 1993
--------
and ending July 31, 1994.
-------------
2. 12 equal monthly Installments of $20,312.50 each payable on or before
-- ---------
the first day of each month during the period beginning August 1, 1994
--------------
ending July 31, 1995.
-------------
3. 12 equal monthly Installments of $20,833.50 each payable on or before
-- ---------
the first day of each month during the period beginning August 1, 1993
--------------
and ending July 31, 1995.
-------------
4. 12 equal monthly Installments of $21,354.17 each payable on or before
-- ---------
the first day of each month during the period beginning August 1, 1996
--------------
and ending July 31, 1997.
-------------
5. 12 equal monthly Installments of $21,875.00 each payable on or before
-- ---------
the first day of each month during the period beginning August 1, 1997
--------------
and ending July 31, 1998.
-------------
Continued in Section 1 of Exhibit E.
B. Landlord and Tenant acknowledge that the foregoing schedule is based
on the assumption that the Lease Term will commence on the Target Commencement
Date. If the Lease Term does not commence on the Target Commencement Date, the
beginning and ending dates set forth above with respect to the payment of any
installment(s) of Base Rent(s) shall be approximately adjusted on a per diem
basis and set both in the Commencement Letter to be prepared by Landlord. In
the event that the Base Rental rate adjusts (up or down) on any day other than
the first day of the month, Base Rental for the month on which such adjustment
occurs shall be determined based on the number of days in such month for which
each particular Base Rental rate is applicable.
<PAGE>
For example, by way of illustration only, assume that tenant is required to
----------------------------------------
pay base rental pursuant to the following schedule based on a lease term of two
years and a target commencement date of January 1, 1992:
1. 12 equal installments of $100.00 each payable on or before the first
day of each month during the period beginning January 1, 1992 and
ending December 31, 1992; and
2. 12 equal installments of $200.00 each payable on or before the first
day of each month during the period beginning January 1, 1993 and
ending December 31, 1993.
If the actual commencement date is determined to be January 15, 1992, the
base rental schedule shall be adjusted as follows:
1. 1 partial monthly installment of $54.01 ($3.23 (per day) x 17 (# of
days)) payable on or before January 15, 1992 with respect to the
period beginning January 15, 1992 and ending January 31, 1992; and
2. 11 equal monthly installments of $100.00 payable on or before the
first day of each month during the period beginning February 1, 1992
and ending December 31, 1992; and
3. 11 monthly installments of $154.01 ([$3.23 x 14 ] + [$0.45 X17])
payable on or before January 1, 1993 with respect to the period
beginning January 1, 1993 and ending January 31, 1993; and
4. 11 equal monthly installments of $200.00 payable on or before the
first day of each month during the period beginning February 1, 1993
and ending December 31, 1993; and
5. 1 partial monthly installments of $90.30 ($6.45 x 14) payable on or
before January 1, 1994 with respect to the period beginning January 1,
1994 and ending January 14, 1994, provided if Landlord elected to
extend the Lease Term for an additional 17 days so that the
Termination Date fell on January 31, 1994. Tennant shall pay Landlord
a monthly installment of $200.00 for the period beginning January 1,
1994 and ending January 31, 1994.
C. All such Base Rental shall be payable by Tenant in accordance with the
terms of Article V of the Lease.
<PAGE>
LANDLORD: 1800 Sherman Associates
an Illinois general partnership
ATTEST: BY: EQUITY OFFICE PROPERTIES, INC.,
as agent
/s/ Mark E. Krason By: /s/ Pamela Boneham
--------------------------------- ----------------------------------
Name (print): Mark E. Krason Name: Pamela Boneham
------------------ --------------------------------
/s/ Irene Wodarczyk Title: Vice President
--------------------------------- -------------------------------
Name (print): Irene Wodarczyk
-------------------
ATTEST: TENANT: Cass Communications, Inc., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
--------------------------------- ----------------------------------
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
------------------- --------------------------------
_________________________________ Title: President
-------------------------------
Name (print): ___________________
<PAGE>
EXHIBIT B-2
PAYMENT OF BASIC COSTS
----------------------
This Exhibit is attached to and made a part of the Lease dated July 31,
--------
1993 by and between 1800 Sherman Associates ("Landlord"), and its agent, Equity
---- -----------------------
Office Properties, Inc. and Case Communications Inc. ("Tenant") for space in the
------------------------
Building located at 1800 Sherman, Evanston, IL 60201.
--------------------------------
BASIC COST ADJUSTMENT. During each calendar year, or portion thereof, falling
---------------------
within the Lease Term, Tenant shall pay to Landlord as Additional Base Rental
hereunder the sum of (1) Tenant's Pro Rate Share of the amount, if any, by which
Taxes (hereinafter defined) for the applicable calendar year exceed Taxes for
the Base Year (hereinafter defined) plus (2) Tenant Pro Rate Share of the
amount, if any, by which Expenses (hereinafter defined) for the applicable
calendar year 1993 Tenant's Pro Rate Share of increases in Taxes and Tenant's
Pro Rata Share of Increases in Expenses shall be computed separate and
independent of each other prior to being added together to determine the
"Excess." In the event that Taxes and/or Expenses, as the case may be, in any
calendar year decrease below the amount of Taxes or Expenses for the Base Year,
Tenant's Pro Rate Share of Taxes and/or Expenses, as the case may be, for such
calendar year shall be deemed to be $0, it being understood that Tenant shall
not be entitled to any credit or offset if Taxes and/or Expenses decrease below
the corresponding amount for the Base Year. Prior to the Commencement Date and
prior to January 1 of each calendar year during the Lease Term, or as soon
thereafter, as practical, Landlord shall make a good faith estimate of the
Excess for the applicable calendar year. On or before the first day of each
month during such calendar year, Tenant shall pay Landlord, as Additional Base
Rental, a monthly installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the Excess. Landlord shall have the right from time to
time during any such calendar year to revise the estimate of the Excess.
Landlord shall have the right from time to time during any such calendar year to
revise the estimate of the Excess for such year and provide Tenant with a
revised statement therefor, and thereafter the amount Tenant shall pay each
month shall be based upon such revised estimate. If Landlord does not provide
Tenant with an estimate of the Excess by January 1 of any calendar year, Tenant
shall continue to pay a monthly installment based on the previous year's
estimate until such time as Landlord provides Tenant with an estimate of the
Excess for the current year. Upon receipt of such current year's estimate, an
adjustment shall be made for any month during the current year with respect to
which Tenant paid monthly installments of Additional Base Rental based on the
previous year's estimate of the Excess. Tenant shall pay Landlord for any
underpayment upon demand. Any overpayment shall, at Landlord's option, be
refunded to Tenant or credited against the installment of Additional Base Rental
due for the month immediately following the furnishing the such estimate. Any
amounts paid by Tenant based on any estimate shall be subject to adjustment
pursuant to Paragraph A below, when actual Basis Costs are determined for such
calendar year.
A. Basic Costs Reconciliation. As soon as practical following the end of each
--------------------------
calendar year during the Lease Term, Landlord shall furnish to Tenant a
statement of Landlord's actual Basic Costs and the actual Excess for the
previous calendar year. If for any calendar year the Additional Base
Rental collected for the prior year, as a result of Landlord's estimate
<PAGE>
of Basic Costs, is in excess of Tenant's actual Pro Rata Share of the
Excess for such prior year, then Landlord shall refund to Tenant any
overpayment (or at Landlord's opinion, apply such amount against Additional
Base Rental due or to become due hereunder). Likewise, Tenant shall pay to
Landlord, on demand, any underpayment with respect to the prior year,
whether or not the Lease has terminated prior to receipt by Tenant of a
statement for such underpayment, it being understood that this clause shall
survive the expiration of the Lease.
B. Definition.
----------
1. "Basic Costs" for any calendar year shall mean the total, computed in
accordance herewith, of Taxes, for such calendar year and Expenses for
such calendar year.
2. "Expenses" shall mean all direct and indirect costs and expenses paid
or incurred in each calendar year in connection with operating,
maintain, repairing, managing and owning the Building and the Property
(inclusive of the Exterior Common Areas), including, without
limitation, the following:
(i) All labor costs for all persons performing services required or
utilized in connection with the operation, repair and
maintenance of and control of access to the Building and the
Property, including but not limited to amounts incurred for
wages, salaries and other compensation for services, payroll,
social security, unemployment and other similar taxes,
workmen's compensation insurance, uniforms, disability
benefits, pensions, hospitalization, retirement plans, group
insurance or any other similar or like expenses incurred under
the provisions or any collective bargaining agreement.
(ii) All management fees, the cost of maintaining a management
office at the Building, and all fees for legal and accounting
services relating to the Building and the Property.
(iii) All rental and/or purchase costs of materials, supplies, hand
tools and equipment used in the operation, repair, replacement
and maintenance and the control of access to the Building and
the Property.
(iv) All amounts charged to Landlord by contractors and/or suppliers
for services, materials, equipment and supplies furnished in
connection with the operation, repair maintenance, replacement
of and control of access to any part of the Building, or the
Property generally, including the heating, air conditioning,
ventilating, plumbing, electrical, elevator and other systems.
(v) All premiums and deductibles paid by Landlord for fire and
extended coverage, insurance, earthquake and extended coverage
insurance, liability and extended coverage insurance, rental
loss insurance, elevator insurance,
<PAGE>
boiler insurance and other insurance customarily carried from
time to time by lessors of comparable office buildings or
required to be carried by Landlord's Mortgagee.
(vi) Charges for all utilities, including but not limited to water,
electricity, gas and sewer, but excluding those charges for
which tenants are individually responsible.
(vii) All landscape expenses and costs for repairing, resurfacing
and striping of the parking areas of the Property, if any.
(viii) Cost of maintenance service agreements, including those for
equipment, alarm service, window cleaning, drapery or Venetian
blind cleaning, janitorial services, pest control, uniform
supply, landscaping, and any parking equipment.
(ix) Cost of all other repairs, replacements and general
maintenance of the Property and Building neither specified
above nor direction billed or tenants.
(x) The amortized cost of capital improvements made to the
Building or the Property which are primarily for the purpose
of reducing operating expense costs or otherwise improving the
operating efficiency of the Property or Building or which are
required to comply with any laws, rules or regulations of any
governmental authority, the cost of such items to be amortized
over a period of at least five (5) years. Such amortization
shall be in accordance with generally accepted accounting
principles and shall include interest at the rate of fifteen
percent (15%) per annum compounded monthly.
3. "Taxes," shall mean (i) all real estate taxes and assessments on the
Property, the Building or the Premises, and taxes assessments levied
in substitution or supplementation in whole or in part of such taxes,
(ii) all personal property taxes for the Building's personal property,
including license expenses, (iii) all franchise fees, (iv) all taxes
imposed on services of Landlord's agents and employees, (v) all sales,
use or other tax, excluding state and/or federal income tax, now or
hereafter imposed by any governmental authority upon Rent received by
Landlord, (vi) all other taxes, fees or assessments now or hereafter
levied by any governmental authority on the Property, the Building or
its contents or on the operation and use thereof (except as relate to
specific tenants), and (vii) all costs and fees incurred in connection
with seeking reductions in or refunds in Taxes including, without
limitation, any costs incurred by Landlord to challenge the tax
valuation of the Building, but excluding income taxes.
4. "Exterior Common Areas" shall mean those areas of the Property which
are not located within the Building and which are provided and
maintained for the use
<PAGE>
and benefit of Landlord and tenants of the Building generally and the
employees, invitees and licensees of Landlord and such tenants,
including without limitation, any parking garage, plaza, roads,
sidewalks and landscape.
C. Exclusions From Basic Costs. Basic Costs shall not include the cost of
---------------------------
capital improvements (except as above set forth), depreciation, interest
(except as provided above with respect to the amortization of capital
improvements), lease commissions and principal payments on mortgage and
other non-operating debts of Landlord.
D. Occupancy. Notwithstanding any language in the Lease seemingly to the
---------
contrary, if the Building is not fully occupied during any calendar year of
the Lease Term, actual Basic Costs for purposes of this Exhibit B-2 shall,
at Landlord's option, be determined as if the Building had been fully
occupied during such year.
LANDLORD: 1800 Sherman Associates
an Illinois general partnership
ATTEST: BY: EQUITY OFFICE PROPERTIES,
INC., as agent
/s/ Mark E. Krason By: /s/ Pamela Boneham
--------------------------------- --------------------------
Name (print): Mark E. Krason Name: Pamela Boneham
------------------- ------------------------
/s/ Irene Wodarczyk Title: Vice President
--------------------------------- -----------------------
Name (print): Irene Wodarczyk
-------------------
ATTEST: TENANT: Cass Communications, Inc., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
--------------------------------- ---------------------------
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
------------------- -------------------------
_________________________________ Title: President
------------------------
Name (print): __________________
<PAGE>
EXHIBIT D
XXXVIII. BUILDING RULES AND REGULATIONS
This Exhibit is attached to and made part of the Lease dated July 31, 1993
-------------
by and between 1800 Sherman Associates ("Landlord"), by its agent, Equity Office
-----------------------
Properties, Inc. and Cass Communications, Inc. ("Tenant") for space in the
-------------------------
Building located at 1800 Sherman, Evanstaon, IL 60201.
---------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage associated therewith (if any), the
Property and the appurtenances thereto;
1. Sidewalks, doorways, vestibules, halls, stairways and other similar area
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, liter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees to loiter
in common areas or elsewhere in or about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Damage resulting to any such
fixtures or appliances from missue by Tenant or its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not in any case
be responsible therefor.
3. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building, except those of such,
color, size, style and in such places as shall be first approved in writing
by Landlord. No nails, hooks or screws shall be driven or inserted into
any part of the Premises or Building except by the Building maintenance
personnel, nor shall any part of the Building be defaced by Tenant.
4. Landlord may provide and maintain in the first floor (main lobby) or the
Building an alphabetical directory board listing all Tenants, no other
directory shall be permitted unless previously consented to by Landlord in
writing.
5. Tenant shall not place any additional lock or locks on any door in the
Premises or Building without Landlord's prior written consent. A
reasonable number of keys to the locks on the doors in the Premises shall
be furnished by Landlord to Tenant at the cost of Tenant, and Tenant shall
not have any duplicate keys made. All keys shall be returned to Landlord
at the expiration or earlier termination of this Lease.
6. Tenant will refer to Landlord for Landlord's supervision, approval, and
control all contractors, contractors' representatives, and installation
technicians rendering any services to Tenant, before performance of any
contractual service. Such supervisory action by Landlord shall not render
Landlord responsible for any work performed for
<PAGE>
Tenant. This provision shall apply to all work performed in the Building,
including but not limited to the installation of telephones, computer
wiring, cabling, equipment, electrical devices, attachments and
installments of any nature. Tenant shall be solely responsible for
complying with all applicable laws, codes and ordinances pursuant to which
said work shall be performed.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to hours designed by Landlord. Tenant must seek Landlord's
prior approval by providing in writing a detailed listing of any such
activity. If approved by Landlord, such activity shall be under the
supervision of Landlord and performed in the manner stated by Landlord.
Landlord may prohibit any article, equipment or any other item from being
brought into the Building. Tenant is to assume all risk for damage to
articles moved an injury to any persons resulting from such activity. If
any equipment, property, and/or personnel of Landlord or any of any other
tenant is damaged or injured as a result of or in connection with such
activity, Tenant shall be solely liable for any and all damage or loss
resulting there from.
8. Landlord shall have the power to prescribe the weight and position of safes
other heavy equipment or items, which in all cases shall not in the opinion
of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation or
removal of any property of Tenant, or done by Tenant's property while in
the Building, shall be repaired at the expenses or Tenant.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not (i) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them, (ii) solicit
business or distribute, or cause to be distributed, in any portion of the
Building any handbills, promotional materials or other advertising, or
(iii) conduct or permit any other activities in the Building that might
constitute a nuisance.
11. No animals, except seeing eye dogs, shall be brought into or kept in, on or
about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises or Building. Tenant shall not, without
Landlord's prior written consent, use, store, install, spill remove,
release or dispose of within or about the Premises or any other portion of
the Property, any asbestos-containing materials or any solid, liquid or
gaseous material now or hereafter considered toxic or hazardous under the
provision of 42 U.S.C. (S) 9601 et seq. or any other applicable
environmental law which may now or hereafter be in effect. If Landlord
does give written consent to Tenant pursuant to the foregoing sentence,
Tenant shall comply with all applicable laws, rules and regulations
pertaining to and governing such use by Tenant, and shall remain liable for
all costs of cleanup or removal in connection therewith.
<PAGE>
13. Tenant shall not use or occupy the Premises in any manner of for any
purposes which would injure the reputation or impair the present or future
value of the Premises or the Building; without limiting the foregoing,
Tenant shall not use or permit the Premises or any portion thereof to the
used lodging, sleeping or for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
work. Tenant shall have no claim for damages of any nature against Landlord
or any of the Landlord Related Parties in connection therewith, nor shall
the date of the commencement of the Term be extended as a result thereof.
15. Tenant shall utilize the termite and pest extermination service designated
by Landlord to control termites and pests in the Premises. Tenant shall
bear the cost and expense of such extermination services, provided that
Tenant shall not be obligated to pay more for its participation in such
termite and pest extermination services than the prevailing competitive
rates charged by reputable independent termite and pest control
exterminators for the same service on a direct and individual basis.
16. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, for which would
overload the electrical system or any part thereof beyond its capacity for
proper, efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not furnish any
cooling or heating to the Premises, including, without limitation the use
of any electronic or gas heating devices, without limitation the use of any
electronic or gas heating devices, without Landlord's prior written
consent.
17. Tenant shall not operate or permit to be operated on the Premises any coin
or token operated vending machine or similar device (including, without
limitation, telephone, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy cigarettes or other goods),
except for those vending machines or similar devices which are for the sole
and exclusive use of Tenant's employees, and then only if such operation
does not violate the lease of any other tenant of the Building.
18. Bicycles and other vehicles are not permitted inside or on the on the
walkways outside the Building, except in those areas, specifically
designated by Landlord for such purposes.
<PAGE>
19. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or
its contents. Tenant, Tenant's agents, employees, contractors, guest and
invitees shall comply with Landlord's reasonable requirements relative
thereto.
20. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
21. Tenant shall carry out Tenant's permitted repair, maintenance, alterations,
and improvements in the Premises only during times agreed to in advance by
Landlord and in a manner which will not interfere with the rights of other
tenants in the Building.
22. Canvassing, soliciting and peddling in or about the Building is prohibited.
Tenant shall cooperate and use its best efforts to prevent the same.
23. At not time shall Tenant permit or shall Tenant's agents, employees,
contractors, guests, or invitees smoke in any common area of the Building,
unless such common area has been declared a designated smoking area by
Landlord.
24. Tenant shall observe Landlord's rules with respect to maintaining standard
window coverings at all windows in the Premises so that the Building
presents a uniform exterior appearance. Tenant shall ensure that to the
extent reasonable practicable, window coverings are closed on all windows
in the Premises while they are exposed to the direct rays of the sun.
25. All deliveries to or from the Premises shall be made only at such times, in
the areas and through the entrances and exits designated for such purposes
by Landlord. Tenant shall not permit the process of receiving deliveries
to or from the Premises outside of said areas or in a manner which may
interfere with the use by any other tenant of its premises or of any common
areas, any pedestrian use of such area, or any use which is inconsistent
with good business practice.
26. The work of cleaning personnel shall not be hindered by Tenant after 5:30
p.m, and such cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles necessary to prevent
unreasonable hardship to Landlord regarding cleaning service.
LANDLORD: 1800 Sherman Associates
an Illinois general partnership
<PAGE>
ATTEST: BY: EQUITY OFFICE PROPERTIES,
INC., as agent
/s/ Mark E. Krason By: /s/ Pamela Boneham
-------------------------------------- -----------------------------
Name (print): Mark E. Krason Name: Pamela Boneham
----------------------- ---------------------------
/s/ Irene Wodarczyk Title: Vice President
-------------------------------------- ----------------------------
Name (print): Irene Wodarczyk
------------------------
ATTEST: TENANT: Cass Communications, Inc., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
-------------------------------------- -------------------------------
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
------------------------ ---------------------------------
______________________________________ Title: President
--------------------------------
Name (print): _______________________
<PAGE>
EXHIBIT E
XXXIX. ADDITIONAL PROVISIONS
This Exhibit is attached to and made part of the Lease dated July 31, 1993
-------------
by and between 1800 Sherman Associates, AN ILLINOIS GENERAL PARTNESHIP
-------------------------------------------------------
("Landlord"), by its agent, Equity Office Properties, Inc. and Cass
----
Communications, Inc., AN ILLINOIS CORPORATION ("Tenant") for space in the
---------------------------------------------
Building located at 1800 Sherman, Evanstaon, IL 60201.
---------------------------------
1. Schedule of Base Rental (continued from Exhibit B-1)
6. 12 equal monthly installments of $25,520.83 payable on or before
-- ---------
the first day of each month during the period beginning August 1,
---------
1998 and ending July 31, 1999.
---- -------------
7. 12 equal monthly installments of $26,041.67 payable on or before
-- ---------
the first day of each month during the period beginning August 1,
---------
1999 and ending July 31, 2000.
---- -------------
8. 12 equal monthly installments of $26,562.50 payable on or before
-- ---------
the first day of each month during the period beginning August 1,
---------
2000 and ending July 31, 2001.
---- -------------
9. 12 equal monthly installments of $27,083.33 payable on or before
-- ---------
the first day of each month during the period beginning August 1,
---------
2001 and ending July 31, 2002.
---- -------------
10. 12 equal monthly installments of $27,604.17 payable on or before
-- ---------
the first day of each month during the period beginning August 1,
---------
2002 and ending July 31, 2002.
---- -------------
2. Rent Abatement
a) No Base Rent shall be due for the following months (the
"Abatement Months", collectively): November, 1993; January, 1994;
January, 1995; January, 1996; and January, 1997.
b) Tenant shall pay all Additional Base Rental for the Abatement
Months as outlined in Article V of this Lease.
c) The entire Base Rent otherwise due and payable for the Abatement
Months shall become immediately due and payable upon this
occurrence of an event of default by Tenant under this Lease.
<PAGE>
3. Termination of Prior Lease.
This Lease Agreement is contingent upon the execution of a Termination
of Lease Agreement for the prior lease between Cass Communications,
Incorporated (Tenant) and 1800 Sherman Associates as successor-in-
interest to Sherman Place Associates (Landlord).
LANDLORD: 1800 Sherman Associates,
an Illinois general partnership
ATTEST: BY: EQUITY OFFICE PROPERTIES,
INC., as agent
/s/ Mark E. Krason By: /s/ Pamela Boneham
----------------------------------- ------------------------------------
Name (print): Mark E. Krason Name: Pamela Boneham
-------------------- ------------------------------
/s/ Irene Wodarczyk Title: Vice President
----------------------------------- ------------------------------
Name (print): Irene Wodarczyk
---------------
ATTEST: TENANT: Cass Communications, Inc., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
----------------------------------- --------------------------------
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
--------------------- -------------------------------
___________________________________ Title: President
------------------------------
Name (print): ____________________
<PAGE>
EXHIBIT "F"
PARKING AGREEMENT
-----------------
This Exhibit is attached to and made a part of the Lease dated July 31, 1993 by
-------------
and between 1800 Sherman Associates, by its agent Equity Office Properties, Inc.
-----------------------
("Landlord") and Cass Communications Inc. ("Tenant") for space in the building
------------------------
located at 1800 Sherman, Evanston, Illinois 60201
--------------------------------------
1. During the Lease Term, Tenant agrees to lease from Landlord and Landlord
agrees to lease to Tenant a total of thirteen (13) (the "Spaces") in the
-------------
building parking area designated by Landlord (the "Parking Area") for the
use of Tenant and its employees. No deductions or allowances shall be made
for days when Tenant or any of its employees does not utilize the parking
facility or for Tenant utilizing less than all of the Spaces. Tenant shall
not have the right to lease or otherwise use more than the number spaces
set forth above.*
2. Tenant shall pay Landlord rent for the Spaces (the "Parking Rent") in
monthly Installments at a initial rate of $55.00 per Space per month, plus
-------
any applicable tax. Landlord shall have the right to increase the Parking
Rent front time to time to reflect the rate then being charged by landlord
for spaces in the Parking Area. The Parking Rent shall be considered
Additional Base Rent in accordance with the terms in Article V of the
Lease.
3. The location of the Spaces may be designated by Landlord from time to time.
Except for particular spaces and areas designated by Landlord for reserved
parking, all parking in the Building Parking Area shall be on an
unreserved, first-come, first-serve basis.
4. Landlord shall not be responsible for money, jewelry, automobiles or other
personal property baths or stolen from the Parking Area regardless of
whether such loss or theft occurs when the Parking Area or other areas
therein are locked or otherwise secured against entry. Except as caused by
the negligence or willful misconduct of Landlord, Landlord shall not be
liable for any loss, injury or damage to persons using the Parking Area or
automobiles or other property therein, it being agreed that, to the fullest
extent permitted by law, the use of the Parking Area and the Spaces shall
be at the sole risk of Tenant and its employees.
5. Landlord shall have the right front time to time to promulgate reasonable
rules and regulations regarding the Parking Area, the Spaces and the use
thereof, including, but not limited to, rules and regulations controlling
the flow of traffic to and from various parking areas, the angle end
direction of parking and the like. Tenant shall comply and
________________________________
* Notwithstanding anything to the contrary as outlined in this first paragraph,
Tenant agrees to lease from Landlord and Landlord agrees to lease to Tenant a
total of nine (9) additional parking spaces. It is further agreed that Landlord
may terminate the lease for any or all of these nine (9) additional parking
spaces, at any time, by providing Tenant with thirty (30) days prior written
notice.
<PAGE>
cause its employees to comply with all such rules and regulations as well
as all reasonable additions and amendments thereto.
6. Tenant shall not store or permit its employees to store any automobiles in
the Parking Area without prior written consent of Landlord. Except for
emergency repairs, Tenant and its employees shall not perform any work on
any automobiles while located in the Parking area on the Property. If it is
necessary for Tenant or its employees to leave an automobile in the Parking
Area overnight, Tenant shall provide Landlord with prior notice thereof
designating the license plate number and model of such automobile.
7. Landlord shall have the right to temporarily close the Parking Area or
certain areas therein in order to perform necessary repairs, maintenance
and improvements to the Parking Area.
8. Tenant shall not assign or sublease any of the Spaces without consent of
Landlord. Landlord shall have the right to terminate this Parking Agreement
with respect to any Spaces that Tenant desires to sublet or assign.
9. Landlord may elect to provide parking cards or keys to control access to
the Parking Area. In such event, Landlord shall provide Tenant with one
card for each Space that Tenant is leasing hereunder, provided that
Landlord shall have the right to require Tenant or its employees to place a
deposit on such access cards or keys and to pay a fee for any lost or
damaged cards or keys.
LANDLORD: 1800 Sherman Associates,
an Illinois general partnership
ATTEST: BY: EQUITY OFFICE PROPERTIES,
INC., as agent
/s/ Mark E. Krason By: /s/ Pamela Boneham
----------------------------------- ---------------------------------
Name (print): Mark E. Krason Name: Pamela Boneham
-------------------- -------------------------------
/s/ Irene Wodarczyk Title: Vice President
---------------------------------- -------------------------------
Name (print): Irene Wodarczyk
---------------
ATTEST: TENANT: Cass Communications, Inc., an
Illinois corporation
/s/ Jeffrey S. Blumberg By: /s/ Alan Weisman
----------------------------------- ---------------------------------
<PAGE>
Name (print): Jeffrey S. Blumberg Name: Alan Weisman
--------------------- --------------------------------
___________________________________ Title: President
-------------------------------
Name (print): ____________________
<PAGE>
STORAGE LEASE AGREEMENT AMENDMENT
---------------------------------
DATE: SEPTEMBER 30, 1998
Cast Communications, Inc., ("Tenant") currently lease storage space at the 1800
Sherman Avenue building in Evanston, Illinois. Tenant currently pays $1,085.73
per month for storage.
It is agreed that Tenant's storage for the months of December, 1998 and January,
1999 shall be abated. The total consideration for this abatement equals
$2,171.46. Storage rent will continue to be paid monthly beginning February 1,
1999.
Nothing contained herein shall relieve Tenant of any of its other obligations.
LANDLORD:
--------
PRENTISS PROPERTIES ACQUISITION
PARTNERS, L.P., a Delaware limited partnership
By: Prentiss Properties I, Inc., a
Delaware corporation, general partner
By: /s/ Michael E. Schack
---------------------------------
Name: Michael E. Schack
-------------------------------
Title: Vice President
------------------------------
By: /s/ J/ Kevan Dilbeck
---------------------------------
Name: J. Kevan Dilbeck
-------------------------------
Title: Vice President
------------------------------
TENANT:
------
CASS COMMUNICATIONS, INC.,
an Illinois corporation
By: /s/ Alan M. Weisman
---------------------------------
Name: Alan M. Weisman
-------------------------------
Title: President
------------------------------
<PAGE>
SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE (this "Amendment") is made as of September
30, 1998, by and between PRENTISS PROPERTIES ACQUISITION PARTNERS, L.P., a
Delaware limited partnership ("Landlord") and CASS COMMUNICATIONS., INC., an
Illinois corporation ("Tenant").
WITNESSETH:
----------
WHEREAS, 1800 Sherman Associates, an Illinois general partnership
("Sherman") and Tenant entered into that certain Standard Form Office Lease
dated July 31, 1993 (the "Lease"), demising 12,500 rentable square feet of space
described as Suite No. 300 in the building commonly known as 1800 Sherman
Avenue, Evanston, Illinois (the "Building");
WHEREAS, Sherman and Tenant-entered into that certain First Amendment dated
May 25, 1994 (the "First Amendment") whereby among other modifications, the
premises was expanded by 60 rentable square feet of space. The Lease as
modified by the First Amendment and including a Storage Lease Agreement dated
April 21, 1994 and Parking Agreement dated February 21, 1996, both between
Sherman and Tenant, shall hereinafter be referred to as the "Lease".
WHEREAS, Landlord has succeeded to Sherman's interest in and to the Lease;
and
WHEREAS, Landlord and Tenant desire to make certain changes to the Lease as
provided herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. Integration of Amendment and Lease. This Amendment and the Lease
----------------------------------
shall be deemed to be, for all purposes, one instrument. In the event of any
conflict between the terms and provisions of this Amendment and the terms and
provisions of the Lease, the terms and provisions of this Amendment shall, in
all instances, control and prevail. Except as expressly defined herein, all
words and phrases which are defined in the Lease shall have the same meaning in
this Amendment as are ascribed to said words and phrases in the Lease.
2. Expansion of the Premises. On December 1, 1998 (the "Effective
-------------------------
Date"), the Premises shall be expanded to include 4,048 rentable square feet on
the Fourth Floor of the Building known as Suite 404 and depicted on Exhibit A
---------
attached hereto and made a part hereof (the "Expansion Space"). Accordingly,
from and after the Effective Date, the Rentable Area of the Premises is deemed
for all purposes under the Lease to be 16,608 square feet. The Lease Term for
the Expansion Space shall be coterminous with the Lease Term set forth in the
Lease for the original premises, and shall terminate on the Termination Date
(July 21, 2003), unless sooner terminated in accordance with the terms of the
Lease.
3. Base Rental for the Expansion Space. Tenant shall pay Base Rental to
-----------------------------------
Landlord for the Expansion Space, in advance, without demand, deduction or set-
off as set forth below:
<PAGE>
---------------------------------------------------------------------
Period Annual Base Rental Monthly Base Rental
---------------------------------------------------------------------
12/1/98 - 7/31/99 $ 99,176.00 $8,264.67
---------------------------------------------------------------------
8/1/99 - 7/31/00 $101,200.00 $8,433.33
---------------------------------------------------------------------
8/1/00 - 7/31/01 $103,224.00 $8,602.00
---------------------------------------------------------------------
8/1/01 - 7/31/02 $105,248.00 $8,770.67
---------------------------------------------------------------------
8/1/02 - 7/31/03 $107,272.00 $8,939.33
---------------------------------------------------------------------
Payment of Base Rental for the Expansion Space shall begin on December 1, 1998.
4. Tenant's Prorata Share. As of December 1, 1998, Tenant's Prorata
----------------------
Share for the Expansion Space is 3.0087% and Tenant's Prorata Share for the
Premises shall be increased to 12.3442%.
5. Improvements. Tenant has inspected the Expansion Space and agrees to
------------
accept the same "as-is" without any agreements, representation; understandings
or obligations on the part of Landlord to perform any alterations, repairs or
improvements.
6. Base Year. For the period commencing with the Effective Date and
---------
ending on the Termination Date, the Base Year for computation of Tenant's
Prorate Share of Basic Costs applicable to the Expansion Space is 1998.
7. Security Deposit. The Lease is hereby amended as follows:
----------------
a. Article IA.11 is deleted entirely and the following substituted
therefor:
"Security Deposit" shall mean the sum of $8,265.00"; and
b. Article VI is deleted entirely and the following substituted
thereof:
"Security Deposit. Tenant's Security Deposit shall be paid upon
----------------
lease execution and shall be held by Landlord, without liability
for interest except to the extent required by law, as security
for the performance of Tenant's obligations under this Lease.
Unless required by applicable law, Landlord shall not be required
to keep the Security Deposit segregated from other finds of
Landlord. Tenant shall not assign or in any way encumber the
Security Deposit. Upon the occurrence of any Event of Default by
Tenant, Landlord shall have the right, without prejudice to any
other remedy, to use the Security Deposit, or portions thereof;
to the extent necessary to pay any arrearages in Rent, and any
other damage, injury or expense. Following any such application
of all or any portion of the Security Deposit, Tenant shall pay
to Landlord, on demand, the amount so
<PAGE>
applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of this
Lease, any remaining balance of' the Security Deposit shall be
returned to Tenant, provided that Tenant surrenders the Premises
without damage pursuant to Article XXXV hereof. If Landlord
transfers its interest in the Premises during the Term, Landlord
shall assign the Security Deposit to the transferee, and
thereafter Landlord shall have no further liability to Tenant for
the Security Deposit. If Tenant is in default under this Lease
more than two (2) tunes within any twelve (12) 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 ho increased by an amount equal to the greater of
(i) three (3) times the original Security Deposit, or (ii) three
(3) months' Base Rental at such time for the Expansion Space,
which shall be paid by Tenant to Landlord immediately upon
demand."
8. Landlord's Address for Notice and Payment. As Landlord has succeeded
-----------------------------------------
to all of Sherman's right, title and interest under the Lease, the addresses set
forth in Article I.A.6 for payment and notice are hereby replaced with the
following:
Landlord's Address for Notice:
Prentiss Properties Acquisition Partners, L.P.
3890 West Northwest Highway, Suite 400
Dallas, Texas 75220
Attention: President
With a copy to:
Prentiss Properties Acquisition Partners, L.P.
9500 West Lawrence Avenue
Schiller Park, Illinois 60176
Attention: Managing Director
and to:
Prentiss Properties Limited, Inc.
1800 Sherman Avenue, Suite 402
Evanston, Illinois 60201
Attention: Property Manager
Landlord's Address for Payment:
Prentiss Properties Acquisition Partners, L.P.
21049 Network Place
Chicago, Illinois 60673-1210
9. Brokers. Tenant represents that Tenant has not dealt with any broker
-------
or finder in connection with this Amendment other than Prentiss Properties
Limited, Inc. ("Broker") and
<PAGE>
agrees to indemnify and hold Landlord harmless from all damages, liability and
expenses (including reasonable attorneys' fees) arising from any claims or
demands of any brokers or finders for any commission alleged to be clue such
brokers or finders other than Broker, in connection with their participation on
behalf of Tenant in the negotiation of this Amendment. Landlord represents that
Landlord has not dealt with any broker or finder in connection with this
Amendment other than Broker and agrees to indemnify and hold Tenant harmless
from all damages, liability and expenses (including reasonable attorneys' fees)
arising from any claims or demands of any brokers or finders for any commission
alleged to be due such brokers or finders other than Broker, in connection with
their participation on behalf of Landlord in the negotiation of this Amendment.
10. Lease in Full Force and Effect. Except as expressly provided herein,
------------------------------
all of the terms and provisions of the Lease shall remain in full force and
effect, except that Tenant shall not be entitled to receive any allowances,
abatements or other financial concessions granted with respect to the Premises.
11. Exculpation. The term Landlord as used in the Lease arid this
-----------
Amendment so far as covenants or obligations on the part of Landlord are
concerned shall be limited to mean and include, only the owner or owners at the
time in question of the Landlord's interest in the Property. Tenant
acknowledges and agrees, for itself and its successors and assigns, that no
partner, trustee, director, officer, employee or agent of Landlord shall be
personally liable for any of the terms, covenants or obligations of Landlord
hereunder, and Tenant shall look solely to Landlord's interest in the Property
for the collection of any judgment (or enforcement of any other judicial
process) requiring the payment of money by Landlord with respect to any of the
terms, covenants and conditions of the Lease as modified by this Amendment to be
observed or performed by Landlord and no other property or assets of Landlord
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any obligation due Tenant or its successors or assigns.
[Signature page follows]
<PAGE>
IN WITNESS WHEREOF, this Amendment is executed by the undersigned as of the
date first above written.
LANDLORD:
--------
PRENTISS PROPERTIES ACQUISITION
PARTNER, L.P., a Delaware limited partnership
By: Prentiss Properties I, Inc., a
Delaware corporation, general partner
By: /s/ Michael E. Schack
-------------------------------
Name: Michael E. Schack
-----------------------------
Title: Vice President
----------------------------
By: /s/ J. Kevan Dilbeck
-------------------------------
Name: J. Kevan Dilbeck
-----------------------------
Title: Vice President
----------------------------
TENANT:
------
CASS COMMUNICATIONS, INC.,
an Illinois corporation
By: /s/ Alan M. Weisman
------------------------------
Name: Alan M. Weisman
----------------------------
Title: President
---------------------------
<PAGE>
EXHIBIT A
---------
EXPANSION SPACE
---------------
[FLOOR PLAN APPEARS HERE]
OPTION AGREEMENT
This Agreement entered into this 1st day of June, 1984, by and between
STEVEN ZEINFELD and ALLAN WEISMAN (hereinafter "Sellers") and CASS
COMMUNICATIONS, INC. (hereinafter "Buyer').
WITNESSETH
WHEREAS, Sellers are the beneficiaries of Harris Trust and Savings Bank
under Trust Agreement No. 33384 which holds title to the following described
property:
The west 16 feet of Lot 5, Lot 6 and Lots 7 and 8 (except the North 42 1/2
feet of said Lots 7 and 8) in Block 36 in North Evanston in Township 42
North, Range 13 East of the Third Principal Meridian, in Cook County,
Illinois;
commonly known as 1633 Central Street, Evanston, Illinois (hereinafter
"property'); and,
WHEREAS, Buyer is currently the lessee of said Property from Seller under a
lease agreement dated November 1, 1979 and terminating October 31, 1994; and,
WHEREAS, Buyer is desirous of purchasing an option agreement from Seller so
as to induce Buyer to continue on under its lease agreement with seller.
NOW, THEREFORE, for good and valuable consideration as set forth herein, IT
IS AGREED AS FOLLOWS:
1. This option may be exorcised on November 1, 1994 by Buyer providing
Seller with written notice of its intent to exercise said option on or before
October 1, 1994.
<PAGE>
2. The consideration for this option will be the same of $412,170.00
payable as follows:
a) $112,170.00 payable in cash by Buyer to Seller on July 15, 1984.
b) A demand note from Buyer to Seller the amount of $250,000.00 with
interest at the rate of __% per annum on the unpaid balance, which
note is delivered to Seller at the time of the execution of this
Agreement.
c) Buyer shall receive a credit in the amount of $50,000.00 for its
security deposit previously paid to Seller.
3. The purchase price of the property on the option date shall be Ten and
No/100 ($10.00) Dollars providing that the payments set forth in paragraph 2(b)
hereof have been made.
4. Seller shall convey said premises to Buyer in fee simple, free and
clear of all, liens, rights of dower or other encumbrances (unless herein
otherwise specified), by good and sufficient deed of conveyance, in the usual
form of a Trustee's Deed, except that if Seller conveys as executor, trustee,
administrator or guardian, or in any trust capacity, the usual deed given in
such cases shall be accepted. Said conveyance shall also be made subject to
all, restrictions, easements and conditions of record, if any. Buyer shall,
further, have the election of accepting an assignment of 100% of the beneficial
interest of the land trust holding legal title to the property in lieu of the
aforesaid deed.
5. Buyer is to have possession of the premises on the day of transfer of
title. All rentals, insurance premiums, interest and all matters affecting the
property herein referred to, not herein otherwise provided for, shall be
adjusted pro rata to the day of the transfer of title. The security deposit
shall be a credit as set forth in paragraph 2(c) hereof.
<PAGE>
6. The transfer is to include, without further consideration and unless
herein otherwise stated, all fixtures and appurtenances now in said premises,
including the heating plant and all appliances connected therewith, service hot
water heaters, gas and electric fixtures, bathroom fixtures attached, outside
screens, awnings, storm sash and storm doors.
7. Both parties hereto agree that no broker has been involved in this
transaction.
8. The terms of the transfer of title shall be in accordance with the
standard language as set forth in Chicago Title and Trust "B" Form Contract, a
copy of which is attached hereto as Exhibit "A".
9. Nothing contained herein shall negate the lease which exists between
Buyer and seller, it being expressly understood that the grant of this option is
being made by Seller to Buyer as an inducement for Buyer's continued and
faithful performances under the lease hereinabove referred to.
10. The parties hereto acknowledge that the property is currently subject
to a first mortgage in favor of Continental Illinois National Bank and Trust Co.
of Chicago, a Mortgagee. Said Mortgagee has approved this grant of an option by
virtue at their Amendment to Line of Credit Letter Agreement dated June 13,
1984, a copy of which is attached hereto as Exhibit "B".
IN WITNESS WHEREOF, the parties have set their hands and seals on the date
first above written.
SELLER: BUYER:
________________________________ CASS Communications, Inc.
Steven Zeinfeld
________________________________ By:______________________________
Alan Weisman President
<PAGE>
As sole beneficiaries of Harris Attest:_______________________________
Trust and Savings Bank U/T/A Secretary
33384
<PAGE>
STATE OF ILLINOIS)
) SS
COUNTY OF COOK )
I, Eileen Frank, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that STEVEN ZEINFELD and ALAN WEISMAN are
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, appeared before me this day in person and acknowledged
that they signed, sealed, and delivered the said instrument as their free and
voluntary act; for the uses and purposes therein set forth
GIVEN under my hand and official seal, this _________ day of ____________,
1984.
________________________________________
Notary Public
Commission expires _______________, 19__
<PAGE>
STATE OF ILLINOIS)
)SS
COUNTY OF COOK )
I, Eileen Frank, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that STEVEN ZEINFELD, PRESIDENT OF CASS
COMMUNICATIONS, INC., and ALAN WEISMAN, SECRETARY OF CASS COMMUNICATIONS, INC.,
are personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, appeared before me this day in person and acknowledged
that they signed, sealed and delivered the said instrument as their free and
voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and official seal, this _________ day of ___________,
1984.
________________________________________
Notary Public
Commission expires _______________, 19__
<PAGE>
CONDITIONS AND STIPULATIONS
1. Seller shall deliver or cease to be delivered to Purchaser or Purchaser's
agent, not less than 5 days to the time of closing, the ____ of one is required
to be delivered under the term of this contract and title commitment for an
owner's title insurance policy issued by the Cass Insurance Company in the
amount of the purchase price, covering title to the real estate on or after the
date hereof, showing title in the _____ subject only to (a) the general
exceptions contained in the policy, (b) the title exception set forth above, and
(c) title exception pertaining to encumbrances of a definite or ascertainable
amount which may be removed by the payment of money at the time of closing and
which the ____ removed at the time by using the funds to be paid upon the
delivery of the deed (all of which are herein referred to as the permitted
exception), commitment shall be conclusive evidence of good title as therein
shown as to all matters insured by the policy, subject only to the exceptions
stated Seller also shall furnish Purchaser an affidavit of title in customary
form covering the date of closing and showing title in Seller subject as
permitted exceptions in foregoing items (b) and (c) and unpermited exceptions or
defects in the title disclosed by the survey, if any, as _____ insurer commits
to extend insurance in the manner specified in paragraph 2 below.
2. If the title commitment or pot of survey ___ one is required to be
delivered under the terms of this contract) discloses either unpermitted __ or
survey matters that render the title unmarketable (herein referred to as "survey
defects"). Seller shall have 30 days from the date of delivery ___ have the
exception removed from the commitment or to correct such survey defects or to
have the title insurer commit to insure against loss ___ that may be occasioned
by such exceptions or survey defects, and, in such vent, the time of closing
shall be 35 days after delivery of the ____ the time expressly specified in
paragraph 5 on the front page hereof, whichever is later. If Seller fails to
have the exceptions removed or ___ survey defects, or in the alternative, to
obtain the commitment for title insurance specified above as to such exception
of the 30-day period __ title as if then is with the right to deduct from the
purchase price liens or encumbrances of a definite or ascertainable amount. If
Purchaser ___ elect, then this contract shall become null and void without
further action of the parties.
3. Rents, premiums under assignable insurance policies, water and other
utility charges, fuels, prepaid service contracts, general taxes, accrued __
mortgage indebtedness, if any, and other similar items shall be adjusted ratably
as of the time of closing. If the amount of the ___ general __ then
ascertainable, the adjustment thereof except for the amount which may accrue by
reason of new or additional improvements shall be on __ the amount of the most
recent ascertainable taxes. The amount of any general taxes which may accrue by
reason of new or additional ____ by adjusted as follows:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
________________________________________________________________________________
_______________________________________________________________________________.
All prorations are final unless provided otherwise herein. Existing and
assignable insurance policies, if any, shall then be assigned to Purchaser ____
shall pay the amount of any stamp tax imposed by State law on the transfer of
the title, and shall furnish a completed Real Estate Transfer ____ signed by the
Seller or the Seller's agent in the form required pursuant to the Real Estate
Transfer Tax Act of the State of Illinois, and shall ____ declaration signed by
the seller or the seller's agent or meet other requirements as established by an
local ordinance with regard to a ___ transaction tax. Such tax required by
local ordinance shall be paid by the Purchaser.
4. The provisions of the Uniform Vendor and Purchaser Risk Act of the State of
Illinois shall be applicable to this contract.
5. If this contract is terminated without Purchaser's fault, the earnest money
shall be returned to the Purchaser, but if the termination is _____ Purchaser's
fault, then at the option of the Seller and upon notice to the Purchaser, the
earnest money shall be forfeited to the Seller and applied to the payment of
Seller's expenses and then to payment of broker's commission; the balance, if
any, to be ________ by the Seller __________________.
6. [Text of paragraph illegible].
7. Time is of the essence of this contract.
8. Any payments herein required to be made at the time of closing shall be by
certified check or cashier's check, payable to Seller.