Exhibit 10.39
Confidential Treatment Request
[*] indicates information that has been omitted pursuant to a
confidential
treatment request and this information has been filed under
separate cover with
the Commission.
================================================================================
Commercial Space
Between
MMPK, LLC
Landlord
and
MIDNIGHT AUTO FRANCHISE CORP.
Tenant
================================================================================
*Portions of this exhibit have been omitted and filed separately
pursuant to an
application for confidential treatment filed with the Securities
and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934, as
amended.
<PAGE>
COMMERCIAL LEASE
This Lease ("Lease") made in Aurora, Illinois as of the 15 day of
July,
2006 (the "Effective Date").
The following Schedule
sets forth basic
information
and definitions
concerning this Lease, and is hereby made a part hereof:
SCHEDULE
(a)
Landlord:
MMPK, LLC
(b)
Landlord's Address: 924 W. 67th Street
Darien,
Illinois 60561
(c)
Tenant:
Midnight Auto Franchise Corp.
(d)
Premises:
Automotive Service Center Facility located
at 989 Eola, Aurora, Illinois consisting
of approximately 9500 square feet.
(e)
Main Term:
Five (5) years
(f)
Extension:
Four (4) additional periods of five (5)
years each
(g)
Commencement Date (or "Rent Commencement Date"): See Section
3.2
(h)
Expiration Date: The last
day of the 60th month subsequent
to the Rent Commencement Date
(i)
Permitted Use of Premises: The Premises may be used and
occupied
for operation
of an automotive service center and related
activities.
(j)
Main Term:
Annual
Lease Year
Base Rent
Monthly Rent
----------
---------
------------
1-5
[*]
[*]
6-10
[*]
[*]
(1st Extension Period)
[*]
[*]
17-15
(2nd Extension Period)
16-20
[*]
[*]
2
<PAGE>
(3rd Extension Period)
21-25
[*]
[*]
(4th Extension Period)
(k)
Tenant's Proportionate
Share of Operating
Expenses and
Taxes:
100% of the Premises (subject to limitations of Operating
Expenses).
(l)
Security Deposit: One month's rent; see Section 29.
(m)
Brokers: CB Richard Ellis.
In the event of a conflict between the provisions of this Schedule
and
the Lease, the Lease shall control.
SECTION 1. LEASE OF
PREMISES
SECTION 1.1. LEASE OF THE PREMISES.
Landlord, as the owner
of the commercial
real estate
(the "Real Estate") commonly known as 989 Eola Road, Aurora,
Illinois, which real estate is improved by a building (the
"Building") and which
Premises include
certain items of equipment and personal
property listed on
attached Exhibit "A" ("Personal Property") (the Building and
Personal Property
and the Real Estate
being collectively
referred to as the
"Property"
or the
"Premises"), does
hereby lease to Tenant, and Tenant hereby accepts the lease
of, the Property.
SECTION 1.2. TERM.
1.2.1. TERM.
The Term of this Lease
shall commence on the Rent
Commencement Date (See Section 3.2). Unless sooner terminated pursuant to the
provisions hereof,
the Lease shall
continue for the number of years and months
set forth in the Schedule as the Main Term.
For the purposes of
this Lease, "Lease Year" shall mean a
consecutive
twelve-month period
commencing
January 1 and ending
December 31,
both inclusive, during
which any portion of the Term falls. Any portion of the
Term which is less than a Lease Year shall be deemed a "Partial
Lease Year."
1.2.2. EXTENSIONS.
Subject to the
provisions hereinafter
set
forth, Landlord hereby grants to Tenant options to extend the Term
of this Lease
on the same terms,
conditions and provisions as contained in this Lease, except
as otherwise provided
herein, for four (4) periods of five (5)
years (each an
"Extension").
(a)
Each Extension
shall
be deemed to have been
automatically
exercised by Tenant unless Tenant otherwise notifies Landlord of
Tenant's election
not to renew
the Lease for any particular Extension by
delivering written notice to Landlord of Tenant's election to not
to exercise as
to any particular
Extension given not
later than the date which is ninety (90)
days
3
<PAGE>
prior to the expiration of the Term or preceding Extension,
as the case may
be.
If Tenant's elects not
exercise as to any
particular
Extensions,
all future
Extension options shall thereupon expire and be of no further force
nor effect.
(b)
Tenant's automatic
exercise of a
particular
Extension
shall only be effective, if on the effective date of such
Extension, this
Lease
is in full force and
effect and Tenant is not in default under this Lease
(beyond any applicable
cure period),
and entire
Premises are occupied
by the
Tenant named herein, or approved or authorized sub-lessee(s) or
licensee(s).
(c)
Rent payable during
each Extension with
respect to all
space included in the Premises shall be as set forth in the
Schedule.
SECTION 2.
CONSTRUCTION OF THE PREMISES
CONDITION OF PREMISES. On or before the Rent Commencement Date,
Landlord
shall deliver possession of the Premises to Tenant, free and clear of all other
tenancies and rights
or claims of any third party to possession or occupancy of
the Premises. THE
PREMISES WILL BE A BROOM CLEAN CONDITION READY FOR TENANT'S
WORK (AS DEFINED
BELOW), AND ALL
AUTOMOTIVE AND OFFICE
EQUIPMENT OF THE PRIOR
TENANT SHALL BE
REMOVED WITH THE EXCEPTION OF THE AIR COMPRESSORS, LIFTS,
ALIGNMENT RACK AND QUICK LUBE EQUIPMENT. All utilities, mechanical,
electrical,
plumbing, and HVAC
systems shall be in good working order and the Premises will
be in compliance with all federal, state and local laws and
ordinances. Prior to
delivery of
possession, Landlord
shall verify and deliver to Tenant a
report
verifying the condition and tonnage of the HVAC.
SECTION 2.1.
TENANT'S WORK. All work shall be performed by Tenant
(hereinafter referred
to as the "Tenant's Work"), Tenant's sole cost and
expense. Tenant
shall be responsible for and shall obtain and pay for all
approvals, inspections
and/or permits from the City of Aurora or other
governmental
authorities having
jurisdiction necessary
for the performance of
Tenant's Work and for Tenant's use occupancy of the Premises.
SECTION 2.2 TENANT'S
PLANS. Tenant
shall, at Tenant's sole cost and
expense, and prior to
the commencement
of any of Tenant's
Work, cause to be
prepared and delivered
to Landlord for its approval shall not be unreasonably
withheld (Landlord
shall make best
efforts to approve
within seven (7) days
after receipt therof),
which comply with all applicable statutes, ordinances,
regulations and codes. Tenant shall provide Landlord with evidence
satisfactory
to Landlord that any contractors and subcontractors have in effect insurance
policies providing
Worker's Compensation insurance policies naming
Landlord,
Landlord's agents, Landlord's mortgagee(s), if any, and such
additional insureds
as may be required by Landlord.
SECTION 2.3
CONSTRUCTION OF
TENANT'S WORK.
Prior to commencing the
Tenant's Work,
Tenant will provide to
Landlord (i) evidence
satisfactory
to
Landlord that
Tenant has
obtained and has in force all insurance coverages
required to be maintained by Tenant under the terms of this Lease;
(ii) evidence
satisfactory to Landlord that Tenant's contractor and
4
<PAGE>
subcontractors have
obtained and have in force Worker's Compensation and such
other insurance
required by Landlord;
(iii) evidence
satisfactory to Landlord
that Tenant has obtained all building permits and other
governmental
approvals
necessary for the performance of Tenant's Work.
Upon Landlord's
approval of Tenant's
Plans, and provided
that
Tenant has complied
with the terms of the
preceding paragraph, Tenant shall
begin construction of Tenant's Work.
SECTION 3. RENT.
Tenant shall pay to
Landlord, at
Landlord's
address or to such
other
person or at such other place as Landlord shall designate in writing to Tenant
from time to time, in
legal tender of the United States at the time of payment,
the following:
SECTION 3.1
BASE RENT. Tenant shall pay the amount shown in the
Schedule as Base Rent. Base Rent shall be payable in equal monthly
installments
without demand,
offset or deduction, in advance, on the first day of each
calendar month
during the Main Term except that the first full monthly
installment of Base Rent shall be paid on the Effective Date.
SECTION 3.2 RENT
COMMENCEMENT
DATE. Rent shall commence on July 15,
2006, or such other date agreed to by the parties.
If the Rent
Commencement Date is
on a day other than
the first day of
the calendar month, the Base Rent for such month and, if necessary,
for the last
month of this Lease will be prorated on a per diem basis.
In the event possession of the Premises is not delivered to Tenant
on or
before July 15, 2006, in the condition required under Section 2 above,
and said
failure to deliver possession continues for a period of 15 days
Tenant's notice
of such failure,
the Tenant shall have
the option, but not
the obligation of
terminating this
Lease, without any
further obligation to
the Landlord at any
time thereafter
prior to Landlord's actual delivery of
the possession of
the
Premises.
SECTION 3.3 ADDITIONAL
RENT. In addition to Base Rent, Tenant shall pay
to Landlord
as Additional Rent the Operating Expenses and Taxes (both as
hereinafter defined) for each Lease Year or Partial Lease Year.
Additional Rent
shall be paid in monthly installments at the same time as installments
of Base
Rent are due and payable as hereinafter provided.
3.3.1.
OPERATING EXPENSES.
For purposes of this Lease,
"Operating Expenses"
shall include casualty
insurance policy for the Building;
management and operation of the Property; snow and ice removal;
landscaping; and
parking lot repairs and paving. Tenant's obligation for the Operating
Expenses
shall survive the
expiration
or sooner termination of this Lease. Tenant's
obligation for Operating Expenses shall be as follows:
5
<PAGE>
Years 1-5
[*] per month
Years 6-10
[*] per month
Years 11-15
[*] per month
Years 16-20
[*] per month
Years 21-25
[*] per month
3.3.2. TAXES. For the purposes of this Lease, "Taxes" shall
mean
all federal,
state and local governmental taxes, assessments and charges
(including transit or
transit district
taxes or assessments) of any kind or
nature, whether general, special, ordinary or extraordinary,
which Landlord or
its agents shall pay or become obligated to pay because of, in
connection with
or allocable to the ownership, leasing, management, control or operation of the
Property or of the personal property, fixtures, machinery, equipment, systems
and apparatus located
therein or used in
connection with the
Property for any
calendar year wholly or partly within the Term. If a special
assessment payment
in installments
is levied against the Property, Taxes for any calendar year
shall include
only the installments of such assessment, and any interest,
payable with respect to such calendar year. Notwithstanding the foregoing, in
the event any general or special assessment is not payable in
installments, the
Landlord shall amortize the assessment over the useful life of the
improvement
and Tenant shall only be responsible for the amortized payments
attributable to
the Lease Term.
There shall be
included in Taxes for any calendar year the
amount of all fees, costs and expenses (including consultants',
appraisers' and
attorneys' fees) paid
by Landlord during such calendar year in negotiating, or
seeking or obtaining any reduction of, Taxes. Tenant hereby
expressly waives any
and all rights
now or hereafter conferred upon it by law to independently
contest or appeal any Taxes.
3.3.3. TENANT
PAYMENTS OF ADDITIONAL RENT. The Operating
Expenses shall be paid in equal monthly installments at the time of payment of
the Rent. Taxes
shall be paid to
Landlord by Tenant
within thirty (30) days
after the receipt of the bills(s) therefore from Landlord.
SECTION 3.4. ALL AMOUNTS CONSTITUTE RENT. All amounts due Landlord
under
the terms of this Lease, including but without limitation, amounts due under
this Section 3, are referred to collectively as "Rent". All Rent shall be paid
by Tenant when due without any set-off, deduction or prior demand,
and without
Landlord's submission of any statements, bills or notices
therefor.
SECTION 3.5. LATE CHARGES. Tenant agrees to pay a late charge of
one and
one-half percent
(1.5%) of the amount
of Rent then due if Rent or any portion
thereof is not paid
within five (5) days after the due date
thereof, and an
additional one and
one-half percent (1.5%) for each ten (10) day period or
portion thereof
thereafter
during which Rent is not paid.
Such late charges
shall be addition
to Landlord's other rights upon default by Tenant. In
addition, any payment
due from Tenant to Landlord not received by Landlord upon
the date herein specified to
6
<PAGE>
be paid shall bear
interest from the date such payment is due to the date of
actual payment at the rate of ten percent (10%) per annum.
SECTION 3.6. INDEPENDENT COVENANT. Tenant's covenant to pay Rent
shall
be independent of
every other covenant set forth in this Lease. The obligation
of Tenant to pay Rent for all Lease Years or Partial Lease Years
during the Term
shall survive the termination of this Lease.
SECTION 4.
INTENTIONALLY OMITTED.
SECTION 5. USE.
SECTION 5.1.
USE OF THE
PREMISES. Tenant shall occupy and use the
Premises only for the Permitted Uses set forth in the Schedule, and
for no other
uses or purposes
whatsoever without
Landlord's prior
written consent,
which
consent Landlord may withhold in its absolute discretion.
SECTION 6. LANDLORD'S
REPAIR OBLIGATIONS.
Throughout the Term,
except for any work made necessary by any act,
omission, or neglect of Tenant, its agents, employees and invitees,
and except
for repairs
necessitated by any damage or destruction by fire or other
casualty
or by a taking
under the power of eminent domain (in which events the
obligations of
Landlord shall be
controlled by Sections
13 and 14),
Landlord
shall keep in repair and maintain: all structural elements of the Building
(including the foundation walls, slab, the exterior walls and doors
including
the obligation
to keep the roof free
from leaks (but
specifically
excluding
garage doors, which is a Tenant responsibility).
SECTION 7.
UTILITIES AND OTHER SERVICES.
SECTION 7.1.
ELECTRICITY.
Tenant will be
individually metered
for the
electricity consumed
within the Building.
Tenant shall pay the
entire cost of
all electric service and the cost of metering directly to the
provider thereof.
SECTION 7.2.
TELEPHONE. Tenant shall make its own arrangements for such
telephone service in the Property as may be desired by Tenant.
Tenant shall pay
all charges, including
but not limited to the cost of installation of necessary
wiring not provided by Landlord made by the company providing
telephone service
in connection
with or relating to
the providing of
telephone service to the
Property.
SECTION 7.3. HEATING,
VENTILATING
AND AIR CONDITIONING ("HVAC").
Landlord shall
provide operating HVAC service and equipment to the
Building.
Tenant shall, at its
own cost and expense,
and with the equipment
installed,
heat and cool the
Building to meet all of its requirements. Tenant agrees to
maintain all heating,
cooling and ventilating equipment servicing the
Building
in good order and Landlord shall repair and make necessary
replacements thereof,
provided that such work is not made necessary by any act,
neglect, or omission
of Tenant, its agents, employees and invitees.
7
<PAGE>
SECTION 7.4. WATER AND
SEWER. Water and Sewer
charges shall be paid by
Tenant.
SECTION 7.5. OTHER OR INCREASED SERVICES. If Tenant desires
telegraphic,
teletext, television,
or other forms of communications, signal or data
transmission services,
security services,
or if Tenant desires
to install any
computer, data processing or other equipment in the Property, or if
Tenant's use
of the Property requires additional or increased electric
or other service than
that provided by Landlord, and providing such services or equipment
necessitates
the installation
of new or additional wires, cables, transmitters, signal
reception devices or other facilities or equipment outside the
Property, Tenant
shall make all
necessary arrangements
directly with the company or companies
providing such services, provided, however, that (i) Tenant shall not
make any
such installations
without the consent of Landlord, which consent Landlord may
withhold in its
absolute discretion,
or, if given,
subject to such terms
and
conditions as Landlord may determine; (ii) Landlord shall direct where
and how
all connections for
such services shall be introduced and run, and Tenant shall
not make or permit others to make borings, cuttings or installations of wires,
cables or equipment
in or about the
Property or the Building except in the
locations and in the manner approved by Landlord;(iii) Tenant shall not, by its
installation or
use of such equipment or facilities or services cause
interference with the operation of equipment, facilities or services
elsewhere
in the Building or on adjoining properties; Tenant shall pay the entire cost
of
installation of any such facilities and the cost of such
service(s).
SECTION 7.6. CLEANING
AND SCAVENGER.
Tenant shall arrange
for its own
janitor or cleaning
services and scavenger
services for the
Property, at its
sole cost and
expense. Tenant's obligations in regard to the cleaning of
Property shall
include, but shall not
be limited to, the cleaning of all glass
in the Property
including the inside and outside surfaces of any glass
storefronts, display windows, doors, partitions or other glass
surfaces.
SECTION 7.7. LIGHTING.
Tenant shall be
responsible
for providing all
light fixtures in the Property and the installation, cleaning and maintenance
thereof, and shall provide, at Tenant's sole cost and expense, all
lamps, bulbs,
tubes, ballasts and starters necessary for the maintenance
therof.
SECTION 7.8. INTERRUPTIONS. Landlord does not warrant that any
services
or Tenant's
occupancy will be free from interruptions caused by repairs,
improvements, changes
of services, alterations, accidents, inability to obtain
fuel, steam, water or
supplies or other causes. No such interruption of service
shall be deemed an eviction or disturbance of Tenant's use and
possession of the
Property or any part thereof or render Landlord liable to Tenant for
damages by
abatement of Rent or otherwise or relieve Tenant from performance of Tenant's
obligations under this Lease; provided, however, such interruption
is not due to
the negligent or willful acts of omissions of the Lanlord.
Tenant hereby
waives
and releases
all claims against Landlord for damages, both direct and
consequential, for any
such interruptions
or stoppages
of services. To the
extent Landlord provides any services, Landlord may at any time
cease to furnish
such services,
provided Tenant is connected at Landlord's expense to an
alternate source of such services.
8
<PAGE>
Landlord shall have
the right at all times during the Term to enter the
Property for the
purpose of inspecting
the same and of making
such repairs or
replacements therein
as may be required by
this Lease or as Landlord may deem
necessary or desirable, including without limitation the rehabilitation or
replacement of the
systems serving the
Building or the exterior and structural
components thereof,
provided, however,
that Landlord shall
use all reasonable
efforts not to disturb
Tenant's use and
occupancy and shall,
when practical,
give Tenant prior
notice of such entry.
If Tenant's access to
the Property is
prevented by reason of repairs or rehabilitation to the Property being made by
Landlord, Landlord shall not be liable to Tenant.
SECTION 8. INSURANCE.
SECTION 8.1. TENANT
COVERAGES.
Tenant, at Tenant's expense, shall
maintain in force with responsible companies approved by Landlord
and in amounts
from time to time approved or requested by Landlord:
(i)
commercial
(comprehensive)
liability insurance
with
respect to liability
arising out of the
ownership, use,
occupancy or
maintenance of the Property and all areas appurtenant thereto, made by
or on behalf of any persons, firm or corporation, arising from, related
to, or connected with the conduct and operation of Tenant's
business in
the Property
insuring
Landlord,
Landlord's
agents,
Landlord's
mortgagee(s), if any,
and such additional parties as requested by
Landlord and Tenant, as their interests may appear, to afford
protection
with respect to personal injury, death or property damage of not less
than One Million
Dollars ($1,000,000)
per occurrence
combined single
limit/One Million Dollars ($1,000,000) general aggregate (but not
less
than, $1,000,000 per location aggregate);
(ii) plate
glass insurance
covering all plate glass in the
Property;
(iii) worker's
compensation insurance
in the amounts required
by applicable statute and employer's liability insurance;
(iv) fire
insurance with extended coverage endorsements
including, but
not limited to, vandalism and malicious mischief,
covering all
equipment installed by Tenant in the
Property and all of
Tenant's stock in trade, trade fixtures, furniture, furnishings and
floor coverings
in the Property to the extent of one
hundred percent
(100%) of their replacement cost.
SECTION 8.2. FORM OF
INSURANCE. All of said
insurance shall be in form
satisfactory to Landlord, shall be primary and non-contributory, shall not be
subject to deductible(s) unless approved in advance in writing by
Landlord, and
shall provide that it will not be subject to cancellation,
termination or change
except after thirty (30) days prior written notice to Landlord.
The policies or
duly executed
certificates
for the same (which
shall evidence the
insurer's
waiver of subrogation) together with satisfactory evidence of the
payment of the
premiums thereon,
shall be deposited with Landlord on or prior to the
commencement of
construction
of Tenant's
Work, and, upon renewals of such
policies, not less
than thirty (30) days prior to expiration of the term of the
coverage being
renewed. If Tenant fails to comply with such requirements,
9
<PAGE>
Landlord may obtain such insurance and keep the same in effect, and
Tenant shall
pay Landlord the premium cost thereof upon demand.
SECTION 8.3.
MUTUAL
WAIVER OF RIGHT OF
RECOVERY. Each party hereto
hereby waives
all claims for recovery from the other party for any loss or
damage to any of its
property or
resulting loss of income or losses under
worker's compensation
laws or benefits
insured under valid and collectible
insurance policies to the extent of any proceeds collected under
such insurance,
subject to the
limitation that this
waiver shall apply
only when it is either
permitted by or, by the use of such good faith efforts (including
the payment of
a reasonable additional premium), could have been so permitted by
the applicable
policy of insurance.
The parties hereto further agree to use good faith efforts
to have any and all
fire, extended
coverage or any and all material damage
insurance which may be carried endorsed with the following
subrogation
clause:
"This insurance
shall not be
invalidated
should the insured
waive in writing
prior to a loss
any or all
right of recovery against any party for loss
occurring to the property described herein."
SECTION 8.4. WAIVER OF LANDLORD'S LIABILITY. Except to extent
resulting from the negligent acts or omissions of the Landlord, the
Landlord and
Landlord's agents and
employees shall not be
liable for, and Tenant waives all
claims for,
damage to persons or
property sustained by Tenant or any person
claiming through Tenant resulting from any accident or occurrence
in or upon the
Premises or the Building or any part of the Property or any
adjacent property or
any property under the control of the Landlord, including, but not limited to,
claims for direct and/or consequential damage resulting
from: (i) any equipment
or appurtenances becoming out of repair; (ii) injury done or
occasioned by wind,
water, or other
natural element; (iv) any defect in or failure of
plumbing,
heating or
air conditioning equipment, electrical wiring or installation
thereof, gas, water,
and steam pipes,
stairs, railings or walks; (v) broken
glass; (vi) the
backing up of any sewer pipe or downspout; (vii) the bursting,
leaking or running of any tank, tub, washstand, water closet, waste pipe,
drain
or any other pipe or tank in, upon or about the Building or the
Property; (viii)
the escape of steam or hot water; (ix) water, snow or ice being upon or
coming
through the roof, skylights, windows, stairs, walks or any other place
upon or
near the Building or the Property or otherwise; (x) the falling of any
fixture,
plaster, pipes, beams,
ceiling, walls or
other standing or hanging portions of
the Building or the Premises or other improvements on the Property;
and (xi) any
act, omission or
negligence
of co-tenants or of
other persons or occupants of
the Building or of adjoining buildings, or of owners of adjacent or
contiguous
property.
SECTION 9. SIGNS AND
DECORATIONS.
SECTION 9.1.
EXTERIOR
SIGNS. Tenant shall be entitled to erect and
maintain a sign on the existing street monument, or other street monument or
pole apparatus
provided by Landlord,
and any building
signage so long as
the
same complies with all local ordinances. Tenant shall be responsible for the
cost of the installation and maintenance of the any actual
sign/fascia unit.
Section 10. TENANT'S FURTHER
OBLIGATIONS.
SECTION 10.1.
AFFIRMATIVE COVENANTS. Tenant shall:
10
<PAGE>
10.1.1. PERFORMANCE OF OBLIGATIONS. Perform promptly all of the
obligations of Tenant
set forth in this Lease, including the obligation to
pay
when due the Rent and all other sums which by the terms of this
Lease are to be
paid by Tenant.
10.1.2. USE AND
OPERATION.
Continuously
use and operate the
Property only for the Permitted Uses set forth in the Schedule and
no other.
10.1.3. CLEAN CONDITION. Keep the Property, fixtures, windows
and signs,
and all ducts, lines, meters, mains, conduits, wires, pipes,
facilities, systems and equipment installed in the Property clean,
neat and safe
and in good order,
repair and
condition (including without limitation all
necessary
replacements, painting
and decorating), damage by fire or other
casualty covered by Landlord's insurance excepted.
10.1.4. MECHANICAL EQUIPMENT. Keep all mechanical devices in
the
Property free of
vibration and noise which may be transmitted beyond the
Property.
10.1.5. EXTERMINATION.
Keep the Property in sanitary condition,
free of insects, rodents, vermin and other pests.
10.1.6. GLASS. Keep all glass in doors, windows and elsewhere
in
the Property clean and
in good condition and
replace promptly all
glass which
may become damaged or
broken with glass of the same quality, damage by fire or
other casualty covered by Landlord's insurance excepted.
10.1.7. REPAIR OF
COMMON AREAS
DAMAGED BY TENANT. Promptly
repair, at
Tenant's sole cost and expense, any damage to any portion of
the
Property caused by the
act, omission,
or neglect of
Tenant, its employees,
agents, customers or invitees.
10.1.8. TRASH.
Store all trash and
garbage within the Property
so as not to be
visible to
members of the public and so as not to
create any
health or fire hazard,
such storage to be in
odor and vermin proof
containers
approved by Landlord which Tenant shall maintain in a neat and
clean condition.
10.1.9. INDEMNITY.
Except to the extent
the same is the result
of the negligent or willful acts or omissions of the Landlord,
Tenant shall save
Landlord, its
mortgagees, and its
agents, harmless and
indemnified
from all
liability, injury,
loss, cost, damage and/or expense (including reasonable
attorneys' fees and
expenses) in respect of any injury to, or death of,
any
person, and/or damage
to, or loss or destruction of any property occasioned by
(i) any act or
omission of
Tenant, Tenant's employees, agents, customers,
invitees or
anyone claiming by, through or under Tenant; (ii) the use,
occupancy, conduct,
operation or management of the Property by Tenant or any of
its agents, contractors, servants, employees, licensees,
suppliers, materialmen
or invitees; (iii) the use of the Building, the Property or any
portion thereof,
or any areas in the vicinity of the Property by Tenant or any of
its customers,
agents, contractors,
servants, employees, licensees, suppliers, materialmen or
invitees; (iv) any work or thing whatsoever done or not done on the
Property; or
(v) any breach or default in performing any of
11
<PAGE>
the obligations
under the provisions of this Lease and/or
applicable
law by
Tenant or any of
its agents, contractors, servants, employees, licensees,
suppliers or materialmen during the Term; all regardless of
whether such claim,
etc., is asserted before or after the expiration of the Term or any earlier
termination of this Lease. The foregoing covenants shall survive the
expiration
of the Term or earlier termination of this Lease.
Except the extent the
same is the result of
the negligent
or
wilfull act or
omission of the Tenant, Landlord shall save Tenant and its
agents, harmless and
indemnified from all liability, injury, loss, cost damage
and/or expense (including reasonable attorneys' fees and expenses)
in respect of
any injury to, or death of, any person, and/or damage to, or loss
or destruction
of any property
occasioned by (i) any
act or omission of Landlord, Landlord's
employees, agents or
anyone of invitees or anyone claiming by, through or under
Landlord; (ii) any
work or thing whatsoever done or not done on the Property by
Landlord; or (iii) any
breach or default in performing any of the obligations
under the provisions of this Lease; all regardless of whether such
claim, etc.,
is asserted
before or after the expiration of the Term or any earlier
termination of this Lease. The foregoing covenants shall survive the
expiration
of the Term or earlier termination of this Lease.
10.1.10. REMOVAL OF TENANT'S GOODS. Remove at the termination
of
this Lease, whether by
lapse of time or otherwise, such of Tenant's goods and
effects as are not
permanently affixed to
the Property;
surrender all keys to
the Property to Landlord; remove all of Tenant's trade
fixtures; remove such of
the alterations and additions made by Tenant as Landlord may
request (excluding
those alterations
and additions approved by Landlord) and repair any damage
caused by such removal; and peaceably yield up the Property, all
alterations and
additions thereto, all decorating, fixtures, furnishings,
partitions,
heating,
ventilating,
cooling and
other equipment and floor coverings which are
permanently affixed to
the Property
(except such as Landlord has requested
Tenant to remove),
which shall
thereupon become the property of Landlord,
broom-clean and in
good order, repair and
condition,
damage by fire or
other
casualty not caused by any act, omission or negligence
of Tenant,
its agents,
employees and invitees, and reasonable wear and tear excepted.
Any property of Tenant
which Tenant is
required to remove which is not
removed prior to such
termination
shall, at Landlord's option, become the
property of Landlord
without further
action of the
parties, or Landlord may
remove all or any portion of the same from the Property and dispose
of it in any
manner, in which in which event Tenant shall, upon demand, pay to Landlord the
actual cost of such removal and disposal and the cost of repairing
any and all
damage to the Property caused by such removal.
10.1.11. KEYS.
Provide Landlord with a key to all doors,
security screens or gates and any other security or alarm devices
and/or systems
installed by Tenant in the Property.
10.1.12. ALTERATIONS
OF PROPERTY. Prior to
commencement of any
work in the Property,
with the exception of non-structural interior repairs or
improvements not exceeding $20,000 in cost, submit plans and specifications to
the Landlord
and secure Landlord's prior written consent thereto in each
instance, which
consent shall not be unreasonably withheld, delayed or
conditioned; pay
promptly when due the
entire cost of any work in the Property
12
<PAGE>
undertaken by Tenant
so that the Property
shall at all times be
free of liens
for labor and materials; procure all necessary permits
before undertaking
such
work; do all of such work in a good and workmanlike manner,
employing
materials
of good quality;
perform such work only with licensed, bonded, responsible
contractors and
subcontractors; and
comply with all governmental requirements
relating to such work; and save Landlord and its agents harmless
and indemnified
from all injury, loss,
claims or damage to any person or property occasioned by
or growing out of such work.
10.2. NEGATIVE COVENANTS. Tenant shall not:
10.2.1. NON-PERMITTED
USES. Exhibit, sell or offer for sale,
use, rent or exchange in the Property any article, thing or service
except those
ordinarily embraced
within the Permitted Uses of the Property specified in this
Lease.
10.2.2. NON-COMPLIANCE
WITH LAWS. Make or permit any use of the
Property which,
directly or
indirectly,
is forbidden by law, ordinance or
governmental or
municipal regulation or order, or which may be dangerous to
life, limb or property.
10.2.3. NOISE.
Place any radio or
television antenna or
other
signal receiving or transmitting device on the roof or on or in any
part of the
inside or outside of the Building other than the inside of the
Property; operate
or permit to be operated any musical or sound producing or reproducing
instrument or device
inside or outside the Property which may be heard outside
the Property;
operate any device
from which may emanate
electrical, radio
or
other waves which may interfere with or impair radio, television or
other signal
transmission or reception from or in the Property or elsewhere.
10.2.4. COMPLIANCE
WITH LAWS.
Occupy or use the
Property or
permit the
Property to be occupied or used for any purpose not within the
Permitted Uses set
forth in the Schedule or any purpose, act or thing which is
in violation of any public law, ordinance or governmental regulation or which
may be dangerous to persons or property, or which may invalidate or
increase the
amount of premiums
for any policy of insurance carried on the Property or
covering its operation or violate the terms thereof, provided,
however, that if
any additional amounts of insurance premiums are caused by Tenant's
occupancy or
use of the Property, Tenant shall pay to Landlord said additional
amounts.
10.2.5. COMPLIANCE
WITH INSURANCE
REQUIREMENTS.
Do or permit
anything to be done on or in the Property, or bring or keep anything therein
or
in a manner which is a violation of rules, regulations or requirements of the
local fire department, the Illinois Inspection and Rating Bureau,
Fire Insurance
Rating Organization or
any other similar authority having jurisdiction over the
Building.
10.2.6. MECHANIC'S
LIENS. Suffer any
mechanic's or other lien,
charge or encumbrance
to be filed
against the
Property or any
portion of the
Property by reason of any work, labor, services or materials performed at or
furnished to the Property by, on behalf of or for Tenant, or for
anyone holding
the Property
through or under Tenant. If any such lien shall at any time
be
filed, Tenant
shall forthwith cause the same to be discharged of record by
payment,
13
<PAGE>
bond, order of a court
of competent
jurisdiction or otherwise, and provide to
Landlord evidence of the discharge thereof; provided, however, that if Tenant,
in good faith, desires
to contest any such
lien, Tenant may do so
if (i) such
contest will operate to prevent any foreclosure by the lien
claimant against the
Property during the
pendency of such contest and (ii) Tenant provides to
Landlord a bond or other security satisfactory to Landlord in an
amount equal to
at least one hundred fifty percent (150%) of the total amount of such
lien(s).
If Tenant shall
fail to cause any such
lien to be dis
