LEASE BETWEEN
AGF WOODFIELD OWNER,
L.L.C.
AND
THE ULTIMATE SOFTWARE GROUP,
INC.
FOR SPACE AT
Woodfield Financial
Center
1375 East Woodfield Road,
Schaumburg, Illinois 60173
October 31, 2008
TABLE OF CONTENTS
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Article 1
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Definitions,
Schedules and Addenda
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1.1
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Definitions
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1.2
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Schedules
and Addenda
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Article 2
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Premises
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2.1
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Lease of
Premises
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2.2
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Prior
Occupancy
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Article 3
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Payments of
Rent
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3.1
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Rent
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3.2
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Deposits
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3.3
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Operating
Costs
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3.4
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Taxes
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Article 4
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Improvements
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4.1
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Construction
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4.2
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Commencement of
Possession
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Article 5
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Project
Services
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5.1
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Project
Services
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5.2
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Interruption of
Services
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Article 6
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Tenant’s
Covenants
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6.1
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Use of
Premises
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6.2
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Insurance
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6.3
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Repairs
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6.4
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Assignment and
Subletting
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6.5
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Estoppel
Certificate
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Article 7
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Landlord’s Reserved Rights
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7.1
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Substitute
Premises
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7.2
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Additional Rights
Reserved to Landlord
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Article 8
|
Casualty and
Untenantability
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8.1
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Casualty and
Untenantability
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Article 9
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Condemnation
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9.1
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Condemnation
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Article 10
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Waiver and
Indemnity
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10.1
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Liability
Waiver
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10.2
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Indemnification
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10.3
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Waiver of
Subrogation
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10.4
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Limitation of
Landlord’s Liability
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Article 11
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Tenant’s
Default and Landlord’s Remedies
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11.1
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Tenant’s
Default
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11.2
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Remedies of
Landlord
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Article 12
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Termination
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12.1
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Surrender of
Premises
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12.2
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Hold Over
Tenancy
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Article 13
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Miscellaneous
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13.1
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Quiet
Enjoyment
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13.2
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Accord and
Satisfaction
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13.3
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Severability
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13.4
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Subordination and
Attornment
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13.5
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Attorney’s
Fees
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13.6
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Applicable
Law
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13.7
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Binding Effect;
Gender
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13.8
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Time
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13.9
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Entire
Agreement
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13.10
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Notices
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13.11
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Headings
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13.12
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Brokerage
Commissions
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13.13
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Sale by
Landlord
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13.14
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Joint and Several
Liability
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13.15
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Counterparts
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13.16
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Execution,
Delivery
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13.17
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Illinois
Registration
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Article 14
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Renewal and
Rofr
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14.1
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Renewal
Option
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14.2
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Rofr
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Schedule 1
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Depiction of
Premises
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Schedule 1A
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Depiction of
Rofr Space
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Schedule 2
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Rules and
Regulations
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Schedule 3
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Utility
Services
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Schedule 4
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Maintenance
Services
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Schedule 4A
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Cleaning
Schedule
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Schedule 5
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Parking
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Schedule 6
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Workletter
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Schedule 7
|
Commencement
Date Certificate
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LEASE
This Lease is made as of October 31, 2008,
between AGF WOODFIELD OWNER, L.L.C. , a Delaware limited
liability company (" Landlord ") and THE ULTIMATE
SOFTWARE GROUP, INC.. , a Delaware corporation (" Tenant
").
ARTICLE 1
DEFINITIONS, SCHEDULES AND
ADDENDA
1.1 DEFINITIONS.
a.
Premises shall mean Suite 210 on the second floor, as
depicted on Schedule 1 .
b.
Building shall mean the Woodfield Financial Center at 1375
East Woodfield Road, Schaumburg, Illinois 60173; Project
shall mean the Building, the land upon and around which the
Building is located, and all other buildings and improvements
thereon or thereunder.
c.
Tenant's Square Footage shall mean approximately
7,861 rentable square feet (“ RSF ”);
Total Square Footage of the Project shall mean approximately
182,966 RSF. Landlord has attempted in good faith to
calculate the square footages set forth in this section in
accordance with ANSI/BOMA Z65.1 1996 standards.
d.
Commencement Date shall mean (i) if the date of
Substantial Completion occurs on or before January 25, 2009 then
February 1, 2009, or (ii) if the date of Substantial Completion
occurs after January 25, 2009, then the earlier of (x) seven (7)
days after the date of Substantial Completion, or (y) the date
Tenant first occupies the Premises for the conduct of
business. Expiration Date shall mean the
date that is the day before the 65-month anniversary of the
Commencement Date; provided, however, that if said date is not the
last day of a calendar month, then the Expiration Date shall be the
last day of the calendar month in which such date
occurs. Lease Term shall mean the period of
approximately 5 years and 5 months between Commencement Date and
Expiration Date. The first Lease Year shall
include the period of time beginning on the Commencement Date (if
other than the first day of the month) to the first day of the
calendar month following the Commencement Date.
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|
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Base
Rent shall mean the
following:
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|
Lease Year
|
Base Rent/RSF
|
Annual Base Rent
|
Monthly Base Rent
|
|
1
|
$22.00
|
$172,942.00 (plus partial
initial month)
|
$14,411.83
|
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2
|
$22.50
|
$176,872.50
|
$14,739.38
|
|
3
|
$23.00
|
$180,803.00
|
$15,066.92
|
|
4
|
$23.50
|
$184,733.50
|
$15,394.46
|
|
5
|
$24.00
|
$188,664.00
|
$15,722.00
|
|
6 (partial)
|
$24.50
|
n/a
|
$16,049.54
|
Notwithstanding
the foregoing schedule, Base Rent shall be abated for the first
five (5) full calendar month(s) of the Lease Term, which is
referred to herein as the “ Rent Abatement Period.
”
f.
Base Year shall mean the calendar year 2009.
g.
Tenant's Pro Rata Share shall mean
4.296%. Tenant's Pro Rata Share is determined by
dividing Tenant's Square Footage as listed in
Section 1.1(c) by the Total Square Footage of the
Building.
h.
Deposit shall mean $14,411.83 (one month’s Base
Rent).
i.
Permitted Purpose shall mean general office use and software
training classes.
j.
Parking shall mean (i) the non-reserved spaces at the
Project as set forth in Section 5.1 hereof, which shall
be made available to Tenant without charge, and (ii) two (2)
reserved underground spaces at the rate of $95.00 per space per
month (plus applicable taxes if any). One of Tenant’s
reserved spaces shall be for the Lease Term; the other shall be on
a month-to-month basis, and either party may terminate that parking
space as of the last day of any calendar month upon at least 30
days’ prior written notice to the other party.
k.
Managing Agent shall mean Jones Lang LaSalle Americas
(Illinois), L.P., whose address is 1375 E. Woodfield Rd., Suite
C50, Schaumburg, IL 60173.
l.
Broker of Record shall mean Jones Lang LaSalle Americas,
Inc.
m.
Cooperating Broker shall mean Chicagoland Commercial Real
Estate.
n.
Landlord's Mailing Address : AGF WOODFIELD OWNER, L.L.C.,
c/o Fulcrum Operating Company, LLC, 8725 W. Higgins Rd., Ste 805,
Chicago, IL 60631, Attention: Mr. Thomas R. McClayton,
with a copy to: Management Office, 1375 E. Woodfield Rd., Suite
C50, Schaumburg, IL 60173, Attn: Property Manager.
o.
Tenant's Mailing Address :1485 N. Park Drive, Weston, FL
33326, Attn: Robert J. Manne, General counsel, with a copy to: the
Premises, Attn: Rick Torrence.
1.2
SCHEDULES AND ADDENDA . The schedules and addenda
listed below are incorporated into this Lease by reference unless
lined out. The terms of schedules, exhibits and
typewritten addenda, if any, attached or added hereto shall control
over any inconsistent provisions in the paragraphs of this
Lease.
Schedule
1: Description of Premises and/or Floor
Plan
Schedule
2: Rules and
Regulations
Schedule
3: Utility
Services
Schedule
4: Maintenance Services (Including 4A,
Cleaning Schedule)
Schedule
7: Commencement Date
Certificate
ARTICLE 2
PREMISES
2.1
LEASE OF PREMISES . In consideration of the Rent
and the provisions of this Lease, Landlord leases to Tenant and
Tenant accepts from Landlord the Premises. Tenant's
Square Footage is a stipulated amount based on Landlord's method of
determining Total Square Footage for rental purposes and may not
reflect the actual amount of floor space available for Tenant's
use. Landlord also hereby grants to Tenant during the
Lease Term a non-exclusive license to use the common areas of the
Building.
2.2
PRIOR OCCUPANCY . Tenant shall not occupy the
Premises prior to the Commencement Date except with the
express prior written consent of Landlord and in accordance with
the provisions of Schedule 6 . If Tenant
takes possession before the Commencement Date, all of the covenants
and conditions of this Lease (including without limitation
Schedule 6 hereof), other than the payment of Base Rent,
shall control such pre-Term occupancy. Nothing herein
shall require Landlord to make any efforts whatsoever to make the
Premises available for occupancy in advance of the Commencement
Date.
ARTICLE 3
PAYMENT OF RENT
3.1
RENT . Tenant shall pay each monthly installment
of Base Rent in advance on the first calendar day of each
month. Monthly installments for any fractional calendar
month shall be prorated based on the number of days in such
month. Base Rent, together with all other amounts
payable by Tenant to Landlord under this Lease, including, without
limitation, any late charges and interest due Landlord for Rent not
paid when due, shall be sometimes referred to collectively as
“ Rent .” Tenant shall pay all Rent,
without deduction or set-off except to the extent Landlord owes
Tenant money whether for reimbursement pursuant to this Lease, or
under the terms of this Lease, to Landlord or Managing
Agent at a place specified by Landlord. Rent not
paid when due shall bear interest until paid, at the rate of at
four (4) points above the “Prime Rate” of interest as
published from time to time in the Wall Street Journal, or at the
maximum rate allowed by law, whichever is less, from the date when
due. Tenant shall also pay a processing charge of Fifty
Dollars ($50.00) with each late payment of
Rent. Notwithstanding the above, but only with respect to the
first late payment by Tenant in each Lease Year, interest shall not
begin to accrue until the fifth day after the payment’s due
date, and the processing charge shall not be payable unless the
payment is more than five (5) days late.
The total amount of Base Rent abated during the
Rent Abatement Period is collectively referred to as the “
Abated Rent .” If, because of an uncured
Event of Default by Tenant, Landlord terminates this Lease or,
without terminating this Lease, terminates Tenant’s right to
possession of the Premises, then, in addition to all other rights
and remedies available to Landlord, an amount equal to the total
Abated Rent shall immediately become due and payable.
3.2
DEPOSIT . Tenant has paid to Landlord the Deposit
as security for performance of Tenant's obligations under this
Lease. In the event Tenant fully complies with all the
terms and conditions of this Lease, the Deposit shall be refunded
to Tenant, without interest unless otherwise required by law, upon
expiration of this Lease. Landlord may, but is not
obligated to, apply a portion of the Deposit to cure any default
hereunder and Tenant shall pay on demand the amount necessary to
restore the Deposit in full within ten (10) days after notice by
Landlord.
3.3
OPERATING COSTS . Tenant shall pay Tenant's Pro
Rata Share of any “Excess Operating Costs,” as set
forth below. During the Base Year, no Excess Operating
Costs shall be paid by Tenant. For each calendar year
following the Base Year, Tenant shall pay each monthly installment
of Tenant's Pro Rata Share of Excess Operating Costs in advance
together with each monthly installment of Base Rent. As
used herein, " Excess Operating Costs " shall mean any
excess of (i) Landlord's Operating Costs for any calendar year
following the Base Year over (ii) the actual Operating Costs
of the Base Year.
a. "
Operating Costs " shall mean all reasonable and actual
expenses relating to the Premises, the Building or the Project,
including but not limited to: real estate taxes and assessments;
gross rents tax, sales tax, use, business, or other taxes (except
income taxes); utilities not separately chargeable to other
tenants; insurance premiums and (to the extent used) deductibles;
maintenance, repairs and replacements; refurbishing and repainting;
cleaning, janitorial and other services; equipment, tools,
materials and supplies; air conditioning, heating and elevator
service; property management including reasonable management fees
(Tenant agrees that management fees of up to 4% of the
Project’s gross revenues are presumptively reasonable);
security; employees and contractors; resurfacing and restriping of
walks, drives and parking areas; signs, directories and markers;
landscaping; snow and rubbish removal; and the Project’s
allocable share of any such Operating Costs that are paid pursuant
to any applicable covenants, conditions, restrictions, and
easements of record. Operating Costs shall not include
salaries and fringe benefits of employees above the grade of
building manager; expenses for legal services; real estate
brokerage and leasing commissions; Landlord's income taxes; income
tax accounting; interest; depreciation; general corporate overhead;
or capital improvements to the Building or Project except for
capital improvements installed for the purpose of reducing or
controlling expenses, or required by any governmental or other
authority having or asserting jurisdiction over the Building or
Project. If any expense, though paid in one year,
relates to more than one calendar year, at option of Landlord, such
expense may be proportionately allocated among such related
calendar years.
Cook County
real estate taxes are payable in arrears for the preceding calendar
year. For purposes of determining taxes for any given
calendar year, the amount to be included for such year
(a) from special assessments payable in installments, and all
other taxes, shall be the amount of the installments (and any
interest) due and payable during such calendar year; and
(b) from any adjustment to any taxes by the taxing authority,
when such adjustment has resulted in a corresponding
adjustment payment by or to Landlord, shall constitute an
adjustment to taxes for the calendar year during which such
adjustment is made or received by Landlord, as the case may
be. Notwithstanding any other provision contained in
this Lease, taxes shall also include all reasonable costs and
expenses (including, without limitation, reasonable legal, tax
consultants, and appraisal fees and court costs) charged for the
protest or the reduction of any of the aforesaid taxes, whether or
not such protest or reduction is ultimately successful.
In the event
that the Building is not fully leased during any calendar year,
Landlord may make appropriate adjustments to the Operating Costs,
using reasonable projections, to adjust such costs that vary with
occupancy to an amount that would normally be expected to be
incurred if the Building were 100% leased, and such adjusted costs
shall be used for purposes of this Section 3.3
.
For purposes of
calculating Excess Operating Costs under this Lease, Operating
Costs for any calendar year after the Base Year shall not include
the amount by which the total of all “ Controllable
Expenses ” (as defined below) for that calendar year
exceeds the “ Controllable Expense Cap ” for
that calendar year. “ Controllable Expenses
” shall mean all Operating Costs of any nature; provided,
however, that Controllable Expenses shall not
include Taxes, and those Operating Costs that are
dependent on prevailing union wage rates, Landlord’s
insurance coverages, and snow removal. The “
Controllable Expense Cap ” for the first calendar year
after the Base Year shall mean 105% of the Controllable
Expenses for the Base Year, and the Controllable Expense Cap
for each subsequent calendar year shall mean 105% of the
Controllable Expense Cap for the immediately preceding calendar
year.
b. Tenant
shall pay, in equal monthly installments, Tenant's Pro Rata Share
of any estimated Excess Operating Costs for each calendar year
which falls (in whole or in part) during the Lease Term (prorated
for any partial calendar year at the beginning or end of the Lease
Term). Annually, or from time to time, based on actual
and projected Operating Cost data, Landlord may adjust its estimate
of Operating Costs upward or downward. Within fifteen
(15) days after notice to Tenant of a revised estimate of Operating
Costs, Tenant shall remit to Landlord a sum equal to any shortage
of the amount which should have been paid to date for the then
current calendar year based on the revised estimate, and all
subsequent monthly estimated payments shall be based on the revised
estimate.
c. As
soon as possible after the first day of each calendar year,
Landlord shall compute the actual Operating Costs for the prior
calendar year, and shall give notice thereof to
Tenant. Within thirty (30) days after receipt of such
notice, Tenant shall pay any deficiency between the estimated and
actual Tenant's Pro Rata Share of Excess Operating Costs for the
prior calendar year (prorated for any partial calendar year at the
beginning or end of the Lease Term). In the event of
overpayment by Tenant, Landlord shall apply the excess to the next
payment of Rent when due, until such excess is exhausted or until
no further payments of Rent are due, in which case, Landlord shall
pay to Tenant the balance of such excess within thirty (30) days
thereafter. Tenant or its representatives shall have the
right, upon reasonable notice, to examine Landlord's books and
records with respect to the Operating Costs at the management
office during normal business hours at any time within thirty (30)
days following the delivery by Landlord to Tenant of the notice of
actual Operating Costs. If Tenant fails to take written
exception to any item of Operating Costs within forty-five (45)
days following the delivery by Landlord to Tenant of the notice of
actual Operating Costs, then Landlord’s notice shall be
considered as final and accepted by
Tenant. Notwithstanding any exception made by Tenant,
Tenant shall pay Landlord the full amount of the Operating Costs as
determined by Landlord, subject to readjustment at such time as any
such exception may be resolved in favor of Tenant.
d. Landlord
currently maintains its records of Operating Costs for the Project
on a cash basis. If Landlord chooses in the future to
maintain its records for the Project on an accrual accounting basis
for Operating Costs purposes, then Operating Costs shall be deemed
to have been paid when such expenses have accrued. Any
adjustment of an item of Operating Costs included in a particular
calendar year which results in a corresponding adjustment payment
by or to Landlord shall constitute an adjustment to Operating Costs
during the calendar year when such adjustment is made.
3.4
TAXES . In addition to Base Rent and other sums
to be paid by Tenant hereunder, Tenant shall reimburse Landlord, as
additional Rent, on demand, any taxes payable by Landlord
(a) upon, measured by or reasonably attributable to the cost
or value of Tenant's equipment, fixtures and other personal
property located in the Premises or by the cost or value of any
leasehold improvements made to the Premises by Tenant or Landlord,
regardless of whether title to such improvements are held by Tenant
or Landlord; (b) upon or measured by the monthly rental
payable hereunder, including, without limitation, any gross
receipts tax or excise tax; (c) upon or with respect to the
possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or
any portion thereof; (d) upon this Lease or any document to
which Tenant is a party creating or transferring an interest or an
estate in the Premises.
ARTICLE 4
IMPROVEMENTS
4.1
CONSTRUCTION . Tenant shall take possession of
and accept the Premises in an "As Is" condition, without any
warranty as to the condition thereof. No agreement or
promise of Landlord, the Managing Agent, or their respective agents
or employees to alter, remodel, decorate, clean, or improve the
Premises, Building, or Project (or to provide Tenant with any
credit or allowance for the same), and no representation regarding
the condition of the Premises, Building, or Project has been made
to or relied upon by Tenant, except as expressly set forth as
“ Landlord’s Work ” in the Workletter
attached hereto as Schedule 6 .
4.2
COMMENCEMENT OF POSSESSION . Tenant acknowledges
that Landlord’s Work as set forth in the Workletter may not
be completed by the estimated Commencement Date of February 1,
2009, and that this circumstance shall not make Landlord or
its agents or contractors liable for any damage, loss, liability or
expense caused Tenant thereby. Notwithstanding the
above, if Landlord fails to Substantially Complete (as defined in
the Workletter) the Landlord’s Work by March 1, 2009 for
reasons other than force majeure and/or Tenant Delay, then Landlord
shall reimburse Tenant for Tenant’s holdover rent (less the
amount of Tenant’s regular rent) in Tenant’s current
premises, which reimbursement shall not exceed the aggregate
sum of $6,000.00 for each month or partial month between March 1,
2009 and the Commencement Date.
In addition, if Landlord fails to Substantially
Complete the Landlord’s Work by April 1, 2009, for reasons
other than force majeure and/or Tenant Delay, then Tenant shall
have the right to terminate this Lease by written notice delivered
to Landlord after April 1, 2009 and before Substantial Completion
of the Landlord’s Work, provided, however, that
Tenant’s termination notice shall be deemed rescinded and of
no effect if Landlord’s Work is Substantially Completed
within the fourteen (14) days following Landlord’s receipt of
Tenant’s termination notice. Tenant may not terminate the
Lease pursuant to this paragraph unless it has paid all sums that
Tenant was required to have paid to Landlord under the
Workletter or other provisions of this Lease. Within ten (10)
business days following termination of the Lease pursuant to this
paragraph, Landlord shall refund to Tenant the sums paid by Tenant
to Landlord under the Workletter.
As used in this Lease, “force
majeure” shall mean any fire, casualty, lockout, labor
dispute, war, terrorist incident, governmental action, labor or
material shortage, transportation delay, accident, breakage,
strike, shortage of materials, act of God, or other cause beyond
Landlord's reasonable control (excluding insufficiency of funds or
inability to obtain financing or disbursement of
loans) that prevents Landlord from performing its
obligations hereunder.
After the Commencement Date, and within fifteen
(15) days of Landlord's request, Tenant shall execute and deliver
to Landlord a Commencement Date Certificate in the form attached as
Schedule 7 , acknowledging the Commencement Date and
certifying that the Work has been substantially completed and that
Tenant has examined and accepted the Premises. If Tenant
unjustifiably fails to deliver such letter, Tenant shall
conclusively be deemed to have made such acknowledgment and
certification by occupying the Premises.
ARTICLE 5
PROJECT SERVICES
5.1
PROJECT SERVICES . Landlord shall furnish the
following Project Services:
a.
Utility Services : Landlord shall provide the
utility services listed on Schedule 3 (the " Utility
Services "). Should Tenant, in Landlord's sole and
reasonable judgment, use additional, unusual or excessive Utility
Services, Landlord reserves the right to charge for such services
as determined either by a separate sub-meter, installed at Tenant's
expense, or by methods specified by an engineer selected by
Landlord. Electric power for Tenant lighting and operating of
office machines will be separately metered and billed to Tenant by
Commonwealth Edison or an alternate electric service provider
selected by Landlord.
b.
Maintenance Services : Landlord shall provide
maintenance of all interior and exterior common areas of the
Building including lighting, landscaping, cleaning, painting,
maintenance and repair of the exterior of the Building and its
structural portions and roof, including but not limited to all of
the services listed on Schedule 4 (the " Maintenance
Services "). Tenant shall bear the cost of replacement of all
lamps, tubes, light bulbs, ballasts, starters and other ancillary
equipment for lighting fixtures serving the Premises. If Tenant (i)
gives Landlord written notice of needed repairs inside the
Premises that are required to be performed by Landlord; (ii)
does not receive a response from Landlord within fourteen (14)
days; and (iii) does not receive a response from Landlord for seven
(7) days following a second notice from Tenant, then Tenant may
make the needed repairs itself, and Landlord shall reimburse Tenant
for the reasonable cost thereof. For purposes of clarity, it is
agreed that if the requested repairs are
reasonably unnecessary, or reasonably outside the scope of
Landlord’s contractual obligations hereunder, then
Landlord shall not be deemed to have failed to respond within the
meaning of the previous sentence. Tenant shall indemnify and hold
harmless Landlord from and against all suits, losses, costs,
liabilities, claims demands, actions, expenses and judgments of
every kind and character suffered by, recovered from or asserted
against Landlord on account of any repairs performed by Tenant
pursuant to this section.
c.
Parking : Tenant shall be entitled to use,
without charge and in common with the other tenants of the Project,
non-reserved parking spaces at the Project (the " Parking
"). Tenant acknowledges that the terms and conditions
described in Schedule 5 attached hereto shall apply to
Tenant's use of the Parking under this Lease.
The Utility Services, the Maintenance Services
and Parking described above shall be collectively referred to as "
Project Services. " The costs of Project
Services, and of Landlord’s repair, maintenance, and
compliance with legal requirements applicable thereto, shall be a
part of Operating Costs.
5.2
INTERRUPTION OF SERVICES . Landlord does not
warrant that any of the Project Services will be free from
interruption. Any Project Service may be suspended by
reason of accident or of necessary repairs, alterations or
improvements (provided that for non-emergency repairs to the
Premises, Landlord shall avoid interference with Tenant’s
software training classes, other than minimal interference that
will not result in training classes having to be suspended,
cancelled or postponed in the Tenant’s reasonable discretion,
unless Landlord has given Tenant at least thirty (30) day notice of
its intention to make such repairs), or by strikes or lockouts, or
by reason of operation of law, or causes beyond the reasonable
control of Landlord.
ARTICLE 6
TENANT'S COVENANTS
6.1 USE
OF PREMISES.
a.
Permitted Usage : Tenant shall use the Premises
for the Permitted Purpose only and for no other purpose.
b.
Compliance with Laws : Tenant shall, at Tenant's
expense, comply with the provisions of all recorded covenants,
conditions and restrictions and all building, zoning, fire and
other governmental laws, ordinances, regulations or rules now
in force or which may hereafter be in force relating to Tenant's
use and occupancy of the Premises, the Building, or the Project and
all requirements of the carriers of insurance covering the Project.
Landlord represents that it is not aware of any covenant,
condition, or restriction of record that would prohibit
Tenant’s Permitted Usage of the Premises.
c.
Nuisances or Waste : Tenant shall not do or
permit anything to be done in or about the Premises, or bring or
keep anything in the Premises that may increase Landlord's fire and
extended coverage insurance premium, damage the Building or the
Project, constitute waste, constitute an immoral purpose, or be a
nuisance, public or private, or menace or other disturbance to
tenants of adjoining premises or anyone else.
d.
Hazardous Substances : Tenant shall
(i) comply with all Environmental Laws; (ii) not cause or
permit any Hazardous Materials to be treated, stored, disposed of,
generated, or used in the Premises or the Project, provided,
however, that Tenant may store, use or dispose of products
customarily found in offices and used in connection with the
operation and maintenance of property if Tenant complies with all
Environmental Laws and does not contaminate the Premises, Project
or environment; (iii) promptly after receipt, deliver to
Landlord any communication concerning any past or present, actual
or potential violation of Environmental Laws, or liability of
either party for Environmental Damages. "
Environmental Laws " mean all applicable present and future
statutes, regulations, rules, ordinances, codes, permits or orders
of all governmental agencies, departments, commissions, boards,
bureaus, or instrumentalities of the United States, states and
their political subdivisions and all applicable judicial,
administrative and regulatory decrees and judgments relating to the
protection of public health or safety or of the
environment. " Hazardous Materials " include
substances (1) which require remediation under any
Environmental Laws; or (2) which are or become defined as
a "hazardous waste", "hazardous substance", pollutant or
contaminant under any Environmental Laws; or (3) which are
toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic or mutagenic; or (4) which contain petroleum
hydrocarbons, polychlorinated biphenyls, asbestos, asbestos
containing materials or urea formaldehyde. "
Environmental Damages " means all claims, judgments, losses,
penalties, fines, liabilities, encumbrances, liens, costs and
reasonable expenses of investigation, defense or good faith
settlement resulting from violations of Environmental Laws, and
including, without limitation: (A) damages for
personal injury and injury to property or natural resources;
(B) reasonable fees and disbursement of attorneys,
consultants, contractors, experts and laboratories; and
(C) costs of any cleanup, remediation, removal, response,
abatement, containment, closure, restoration or monitoring work
required by any Environmental Law and other costs reasonably
necessary to restore full economic use of the Premises or
Project.
e.
Alterations and Improvements : Tenant shall make
no alterations or improvements to the Premises without the prior
written approval of Landlord and Landlord's mortgagee, if any,
which approval will not be unreasonably withheld or delayed so long
as the alterations or improvements (a) are not visible from
the exterior of the Building, (b) do not affect the mechanical,
electrical, HVAC, life safety or other Building operating systems,
(c) do not affect the structural components of the Building or
require penetration of the floor or ceiling of the Premises,
(d) do not involve the use or disturbance of any hazardous or
toxic materials, and (e) are not prohibited by any Landlord Rules
and Regulations set forth in Schedule 2 . Any
such alterations or improvements by Tenant shall be done in a good
and workmanlike manner, at Tenant's expense, by a licensed
contractor approved by Landlord and in conformity with plans and
specifications approved by Landlord. Landlord shall have
the right to supervise any such alterations or improvements, in
which event Tenant shall pay to Landlord on demand a fee for such
supervision in an amount equal to three percent (3.0%) of the cost
of such alterations or improvements (including all "soft
costs"). If requested by Landlord, Tenant will post a
bond or other security reasonably satisfactory to Landlord to
protect Landlord against liens arising from work performed for
Tenant. Landlord's approval of plans and specifications
for Tenant's alterations or improvements shall create no
responsibility or liability on the part of Landlord for their
completeness, design sufficiency, or compliance with applicable
laws, rules and regulations.
Notwithstanding
anything contained herein to the contrary, Tenant may perform
alterations to the interior of the Premises without Landlord's
prior written consent, provided such alterations are not of the
type described above in (a) through (e), and do not cost more than
five thousand dollars ($5,000.00) in any calendar year, and further
provided that Tenant gives Landlord prior written notice of such
alterations (including plans showing any alterations affecting
walls or other structures within the Premises), and further
provided that such alterations (and the performance thereof) shall
otherwise be in compliance with the provisions of this Section
(except for the requirement of Landlord's consent). If
the alteration consists solely of carpeting and repainting,
Landlord shall not charge Tenant a supervisory fee for such
alteration.
f.
Liens : Tenant shall keep the Premises, Building,
and Project free from liens arising out of any work performed,
materials furnished, or obligations incurred by or for
Tenant. If, at any time, a lien or encumbrance is filed
against the Premises, Building, or Project as a result of Tenant's
work, materials or obligations, Tenant shall promptly discharge
such lien or encumbrance. If such lien or encumbrance
has not been removed within thirty (30) days from the date it is
filed, Tenant agrees to deposit with Landlord cash or a bond, which
shall be in a form and be issued by a company acceptable to
Landlord in its sole discretion, in an amount equal to 150% of the
amount of the lien, to be held by Landlord as security for the lien
being discharged.
g.
Rules and Regulations : Tenant shall observe,
perform and abide by all the rules and regulations promulgated by
Landlord from time to time. Schedule 2 sets forth
Landlord's rules and regulations in effect on the date
hereof.
h.
Signage : Tenant shall be permitted to display
its name on one slot of the Building’s new monument sign,
subject to the approval of the Village of Schaumburg, and
consistent with the size, design, color, lighting, and other
specifications selected by Landlord for other slots on the monument
sign. Tenant shall obtain the prior approval of the Landlord before
placing any sign or symbol in doors or windows or elsewhere in or
about the Premises, or upon any other part of the Building or
Project including building directories. Any signs or
symbols which have been placed without Landlord's approval may be
removed by Landlord at Tenant’s expense. Upon
expiration or termination of this Lease, all signs installed by
Tenant shall be removed and any damage resulting therefrom shall be
promptly repaired, or such removal and repair may be done by
Landlord and the cost charged to Tenant as Rent. Tenant
shall be entitled, at Landlord’s expense, to its
Proportionate Share of initial building standard listings on the
Building directory, and to building-standard suite entry signage;
changes to such listings or signage shall be at Tenant’s
expense.
6.2
INSURANCE .
a. Tenant
shall, at its own expense, procure and maintain during the Lease
Term: (i) all risk insurance, including coverage for loss or
damage resulting from water or theft, on merchandise, trade
fixtures, and personal property owned by the Tenant, and property
of others in the Tenant’s possession, on a full replacement
cost and agreed value basis, and (ii) worker's compensation
insurance in at least the statutory amounts, and
(iii) commercial general liability insurance with respect to
the Premises and Tenant's activities in the Premises, Building, and
Project, providing bodily injury, personal injury, contractual
liability, and property damage coverage with a maximum $5,000
deductible, or such other amount approved by the Landlord, in
writing, and minimum coverage limits of $3,000,000 for any one
occurrence with a policy general aggregate of $5,000,000 with
respect to bodily injury or death, personal injury, contractual
liability and property damage.
b. Nothing
in this Section 6.2 shall prevent Tenant from obtaining
insurance of the kind and in the amounts provided for under this
section under a blanket insurance policy covering other properties
as well as the Premises, provided, however, that any such policy of
blanket insurance (i) shall specify the amounts of the total
insurance allocated to the Premises, which amounts shall not be
less than the amounts required by subparagraph a above, and
(ii) such amounts so specified shall be sufficient to prevent
any one of the assureds from becoming a coinsurer within the terms
of the applicable policy, and (iii) shall, as to the Premises,
otherwise comply as to endorsements and coverage with the
provisions of this paragraph. Tenant's insurance shall
be with a company which has a rating equal to or greater than
Best's Insurance Reports classification of A, Class X or its
equivalent, as such classification is determined as of the
Commencement Date. Landlord, Managing Agent, and
Landlord's mortgagee, if any, shall be named as "additional
insureds" under Tenant's general liability insurance, and such
Tenant's insurance shall be primary and non-contributing with
Landlord's insurance. Tenant's insurance policies shall
contain endorsements requiring the carrier to endeavor to provide
thirty (30) days notice to Landlord and Landlord's mortgagee, if
any, prior to any cancellation, lapse, nonrenewal, or reduction in
amount of coverage. Within two (2) business days of Tenant’s
receipt of a notice of any cancellation, lapse, nonrenewal, or
reduction in amount of coverage, Tenant shall deliver a copy of
such notice to Landlord.
c. Tenant
shall deliver to Landlord as a condition precedent to its taking
occupancy of the Premises, Certificates of Insurance for all
required insurance obligations hereunder including evidence of
contractual liability and additional insured status on a primary
and non-contributing basis with respect to liability coverage, or
certified copies of any of the policies evidencing such insurance
obligations.
d. Landlord
shall at all times maintain commercial general liability insurance,
“all risk” property insurance on the Building, and
other customary forms of insurance in amounts that prudent owners
of buildings similar to the Building maintain, the costs of all of
which shall be included in Operating Costs.
6.3
REPAIRS . Tenant, at its sole expense, agrees to
maintain the interior of the Premises in a neat, clean and sanitary
condition. If Tenant fails to maintain or keep the
Premises in good repair and such failure continues for five (5)
days after written notice from Landlord (provided Tenant is not
diligently moving to correct such failure), or if such failure
results in a nuisance or health or safety risk, Landlord may
perform any such required maintenance and repairs and the cost
thereof (plus a markup not to exceed 3.0% of such cost for
Landlord's overhead and supervision) shall be payable by Tenant as
Rent within ten (10) days of receipt of an invoice from
Landlord. Tenant shall also pay to Landlord the costs of
any repair to the Building or Project necessitated by any act or
neglect of Tenant.
6.4
ASSIGNMENT AND SUBLETTING . Tenant shall not
assign, mortgage, pledge, or encumber this Lease, or permit all or
any part of the Premises to be subleased, without the prior written
consent of Landlord and Landlord's mortgagee, if any, which consent
shall not be unreasonably withheld or delayed. The
transfer (whether direct or indirect) of all or a majority of the
voting or controlling equity in Tenant (other than the shares of
the capital stock of a corporate Tenant whose stock is publicly
traded), or the merger, consolidation, reorganization, or
liquidation of Tenant, or the sale of all or substantially all
of the assets of Tenant, shall be considered a Transfer for the
purposes of this Section. Notwithstanding the
foregoing, Tenant shall have the right to assign or sublease part
or all of the Premises to an “Affiliate” of Tenant
(defined below) with prior written notice to Landlord but without
Landlord’s consent, provided that (i) Tenant (assuming
that entity still exists) continues to be primarily liable on its
obligations as set forth herein; (ii) such Affiliate has a net
worth and creditworthiness no less than the net worth and
creditworthiness of Tenant as of the date of this Lease, and
agrees in writing to assume and be bound by all covenants and
obligations of Tenant hereunder; (iii) such Affiliate is, in
Landlord's good faith judgment, compatible with other tenants in
the Building and seeks to use the Premises only for the Permitted
Purpose and for a use that is not prohibited under the terms of a
lease with another tenant in the Building; (iv) there is not
then an Event of Default by Tenant under this Lease, and (v) such
Affiliate’s use would not result in a material change in the
number of personnel working in, or members of the general public
visiting, the Premises. As used herein, “
Affiliate ” means any entity (1) which then owns
and controls Tenant; (2) is then owned and controlled by
Tenant; (3) is then owned and controlled by an entity described in
(1); (4) with which Tenant may merge or consolidate; or (5) which
acquires all or substantially all of the voting equity, or assets,
of Tenant.
In addition to other reasonable bases, Tenant
hereby agrees that Landlord shall be deemed to be reasonable in
withholding its consent, if: (a) such proposed assignment or
sublease is for less than the whole of the Premises or is for a
term less than the whole of the remaining Lease Term; or
(b) such proposed assignment or sublease is to any party
who is then a tenant of the Building or Project, or who is then
negotiating for space in the Building or Project, if Landlord has
comparable space available for such tenant or prospective tenant;
or (c) Tenant is in default under any of the terms, covenants,
conditions, provisions and agreements of this Lease at the time of
request for consent or on the effective date of such subletting or
assignment; or (d) the proposed subtenant or assignee is, in
Landlord's good faith judgment, incompatible with other tenants in
the Building, or seeks to use any portion of the Premises for a use
not consistent with other uses in the Building, or is financially
incapable of assuming the obligations of this Lease; or
(e) the proposed assignee or sublessee or its business is
subject to compliance with additional requirements of the law
(including related regulations) commonly known as the "Americans
with Disabilities Act" beyond those requirements which are
applicable to the Tenant, unless the proposed assignee or sublessee
shall: (i) first deliver plans and specifications for
complying with such additional requirements and obtain Landlord's
consent thereto, and (ii) comply with all Landlord's
conditions for or contained in such consent, including without
limitation, requirements for security to assure the lien-free
completion of such improvements. Tenant shall submit to
Landlord the name of a proposed assignee or subtenant, the terms of
the proposed assignment or subletting, a copy of the proposed
assignment document or sublease, the nature of the proposed
subtenant's business and such information as to the assignee's or
subtenant's financial responsibility and general reputation as
Landlord may reasonably require.
No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its primary obligation
to pay the Rent and to perform all of the other obligations to be
performed by Tenant hereunder. The acceptance of Rent by
Landlord from any other person or entity shall not be deemed to be
waiver by Landlord of any provision of this Lease or to be a
consent to any assignment, subletting or other
transfer. Consent to one assignment, subletting or other
transfer shall not be deemed to constitute consent to any
subsequent assignment, subletting or transfer.
In lieu of giving any consent to a sublet or an
assignment of all the Premises, Landlord may, at Landlord's option,
elect to terminate this Lease. In the case of a proposed
subletting of a portion of the Premises, Landlord may, at
Landlord's option, elect to terminate the Lease with respect to
that portion of the Premises being proposed for
subletting. The effective date of any such termination
shall be thirty (30) days after the proposed effective date of any
proposed assignment or subletting.
Fifty percent (50%) of any proceeds in excess of
Base Rent and Tenant's Pro Rata Share of Excess Operating Costs
which is received by Tenant pursuant to an assignment or subletting
consented to by Landlord, less reasonable brokerage commissions
actually paid by Tenant, and less other costs incurred by Tenant in
connection with making the space available for lease, shall be
remitted to Landlord as extra Rent within ten (10) days of receipt
by Tenant. For purposes of this paragraph, all money or
value in whatever form received by Tenant from or on account of any
party as consideration for an assignment or subletting shall be
deemed to be proceeds received by Tenant pursuant to an assignment
or subletting.
6.5
ESTOPPEL CERTIFICATE . From time to time and
within ten (10) days after request by Landlord, Tenant shall
execute and deliver a certificate to any proposed lender or
purchaser, or to Landlord, together with a true and correct copy of
this Lease, certifying with any appropriate exceptions,
(i) that this Lease is in full force and effect without
modification or amendment, (ii) the amount of Rent payable by
Tenant and the amount of the Deposit and of any prepaid Rent paid
by Tenant to Landlord, (iii) the nature and kind of
concessions, rental or otherwise, if any, which Tenant has received
or is entitled to receive, (iv) that Tenant has not assigned
its rights under this Lease or sublet any portion of the Premises,
(v) that Landlord has performed all of its obligations due to
be performed under this Lease and that there are no defenses,
counterclaims, deductions or offsets outstanding or other excuses
for Tenant's performance under this Lease, (vi) that such
proposed lender or purchaser may rely on the information contained
in the certificate, and (vii) any other fact reasonably
requested by Landlord or such proposed lender or
purchaser.
ARTICLE 7
LANDLORD'S RESERVED
RIGHTS
7.1
SUBSTITUTE PREMISES . Intentionally
Deleted .
7.2
ADDITIONAL RIGHTS RESERVED TO LANDLORD . Without
notice and without liability to Tenant or without effecting an
eviction or disturbance of Tenant's use or possession, Landlord
shall have the right to (i) grant utility easements or other
easements in, or replat, subdivide or make other changes in the
legal status of the land underlying the Building or the Project as
Landlord shall deem appropriate in its sole discretion, provided
such changes do not substantially interfere with Tenant's use of
the Premises for the Permitted Purpose; (ii) enter the
Premises at reasonable times upon reasonable oral or written notice
to Tenant, and at any time without notice in the event of an
emergency, to inspect, alter or repair the Premises or the Building
and to perform any acts related to the safety, protection,
reletting, sale or improvement of the Premises or the Building;
(iii) change the name or street address of the Building or the
Project; (iv) install and maintain signs on and in the
Building and the Project; and (v) provided not in conflict
with this Lease, make such rules and regulations as, in the sole
judgment of Landlord, may be needed from time to time for the
safety of the tenants, the care and cleanliness of the Premises,
the Building and the Project and the preservation of good order
therein. For non-emergency repairs to the Premises, Landlord shall
avoid interference (other than minimal interference as described in
section 5.2 hereof) with Tenant’s software training classes,
unless Landlord has given Tenant at least thirty (30) day notice of
its intention to make such repairs.
ARTICLE 8
CASUALTY AND
UNTENANTABILITY
8.1
CASUALTY AND UNTENANTABILITY . If as a result of
fire or other casualty, the Building is made substantially
untenantable, or Tenant's use and occupancy of the Premises are
substantially interfered with due to damage to the common
areas of the Building, or the Premises are made wholly or partially
untenantable, then Landlord may, by notice to Tenant within
forty-five (45) days after the damage, terminate this
Lease. In addition, if such a casualty occurs during the
last twelve (12) months of the term of this Lease, either
party may, by notice to the other party within thirty (30) days
after the damage, terminate this Leas
