EXHIBIT 10.7
XXXXXX XXXXX
XXX XXXXXXX XXXXXX
XXXXXXX, XXXXXXXX
TENANT: 21ST CENTURY CABLE TV, INC.,
AN ILLINOIS CORPORATION
THE APPAREL CENTER
THIS LEASE made as of January 31, 1997 between LASALLE NATIONAL BANK, not
individually but as Trustee under a Trust Agreement dated March 1, 1967, as
extended, and known as Trust No. 36223 ("Landlord") and 21ST CENTURY CABLE TV,
INC., an Illinois corporation ("Tenant").
WITNESSETH
1. DEMISED PREMISES; TERM.
(A) Landlord does hereby demise and lease to Tenant, and Tenant accepts
that certain space shown hatched on Exhibit "A" which is attached hereto and
made a part hereof, consisting of approximately 32,422 rentable square feet and
commonly described as a portion of the sixth floor ("Premises") of The Apparel
Center, a building located on land at 000 Xxxxx Xxxxxxx Xxxxxx ("Building")
(provided, however, the Building does not include the hotel premises [herein
"Hotel Premises",] located in the same physical structure as the Building)
constructed on the north portion of the property bounded by West Kinzie Street,
North Orleans Street, the Chicago River, and a line 352.50 feet south of and
parallel with the south line of West Kinzie Street in Chicago, Illinois (such
land and Building hereinafter referred to, together with all present and future
easements, additions, improvements and other rights appurtenant thereto, as the
"Property") , for a term beginning on the Commencement Date (as hereinafter
defined) and ending on the last day of the fifteenth (15th) Lease Year (as
hereinafter defined) thereafter ("Term"), unless sooner terminated as provided
herein, subject to the terms, covenants and agreements herein contained.
The Commencement Date shall be the earlier of (a) substantial completion of
Tenant's Work (as defined Article 35) or (b) July 1, 1997 (subject to extension
in the event of' a Landlord Delay as provided in Article 35(A) or Article
35(B)(3)hereof).
For purposes of this Lease, "Lease Year", shall mean a period of twelve
(12) consecutive calendar months, the first of which shall commence on the
Commencement Date if the Commencement Date shall be the first day of a calendar
month, or on the first day of the first calendar month following the
Commencement Date if the Commencement Date shall be other than on the first day
of a calendar month, and shall end on the last day of the twelfth (12th)
calendar month thereafter. Each successive Lease Year shall be a twelve (12)
calendar month period commencing on the anniversary of the commencement of the
first Lease Year.
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(B) Landlord and Tenant agree that the rentable area of the Premises
initially demised pursuant to this Article 1 and any additional space that at
any time may be demised hereunder shall be computed in accordance with Building
Owners and Managers Association International Standard Method for Measuring
Floor Area in Office Buildings known as American National Standard ANS1 Z65.1-
1996 (approved June 7, 1996) by American National Standards Institute, Inc.
("BOMA Standards"); provided, however, that the rentable area of any space added
to the Premises shall be calculated by adding to the usable area of such space a
percentage of said usable area equal to fifteen percent (15%), or BOMA Standard,
whichever is less. In any event, it is agreed that after the addition of both
of the Take-Down Spaces pursuant to Article 36, Tenant shall occupy the /***/
consisting of approximately 40,397 rentable square feet.
(C) Upon final approval of the plans and specifications for Tenant's Work,
Landlord and Tenant agree to confirm the rentable square footage of the Premises
and if the rentable square footage is not 32,422 rentable square feet, then
Landlord and Tenant shall amend this Lease to reflect the actual rentable square
footage of the Premises and the Base Rent payable pursuant to Article 3,
Tenant's Proportionate Share set forth in Article 4 and Landlord's Contribution
set forth in Article 34 shall be adjusted to reflect the actual rentable square
footage of the Premises.
2. USE. Tenant will use and occupy the Premises for general office purposes
and for the transmitting of television, telephone and other telecommunications
signals for which Tenant is legally licensed and incidental uses thereto and for
no other use or purpose. Tenant will not use or permit upon the Premises
anything that will invalidate any policies of insurance now or hereafter carried
on the Building or that will increase the rate of insurance on the Premises or
on the Building. Tenant will pay all extra insurance premiums on the Building
which may be caused by the use which Tenant shall make of the Premises (other
than a use stated in the first sentence hereof). Tenant will not (a) use or
permit upon the Premises anything that may be dangerous to life or limb; (b) in
any manner deface or injure the Building or any part thereof or overload the
floors of the Premises; or (c) do anything or permit anything to be done upon
the Premises in any way creating a nuisance or disturbing any other tenant in
the Building or the occupants of neighboring property, or tending to injure the
reputation of the Building. Tenant shall further not carry-on or permit any
activities which might: (1) involve the storage, use or disposal of medical or
hazardous waste or substances or the creation of an environmental hazard other
than such substances in such amounts customarily used in normal office
operations; or (2) impair or interfere with (i) the structure of the Building or
the operation of Building systems, (ii) the character, reputation or appearance
of the Building as a first-class building, (iii) the furnishing of services
(including utilities, telephone and communications) to any portion of the
Building, or (iv) the enjoyment by any other occupants of the Building or the
benefits of such occupancy (for example, free of noise, odors or vibration
emanating from the Premises). The
______________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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Premises shall not be used for the purposes of any so called "office suites",
schools, employment agencies, medical treatment facilities or any retail or
wholesale activities, except as incidental to Tenant's permitted use described
above. Tenant will fully and promptly comply, and operate the Premises in
conformity, with all applicable federal, state and municipal laws, ordinances,
codes, regulations and requirements respecting the Premises or Tenant's use or
occupancy thereof, and activities therein provided, however, Tenant shall not be
responsible for assuring that the "Building Systems" (as defined in Article 7
hereof), other than any Building Systems constructed or installed by Tenant, are
in compliance with such laws, ordinances, codes, regulations or requirements.
Tenant will not use the Premises for lodging or sleeping purposes, nor conduct
or permit to be conducted on the Premises any business or activity which is
contrary to the provisions of this Lease or to any applicable governmental laws,
ordinances, codes, regulations and requirements. Tenant shall promptly pay all
taxes of whatever kind which are imposed upon Tenant but which are to be
collected by Landlord. Tenant shall at no time sell food on or from the
Premises. Tenant shall at no time sell (within the meaning of the Illinois
Liquor Control Act, as now or hereafter amended) alcoholic liquor on or from the
Premises, provided, however, that Tenant may occasionally give complimentary
food and alcoholic liquor to its guests on the Premises, on condition that
Tenant shall comply with all applicable governmental requirements, and on
further condition that, prior to the giving of such alcoholic liquor, Tenant
shall procure and maintain continuously thereafter (or cause to be procured and
maintained continuously thereafter) in force a policy of or endorsement for host
liquor liability insurance, as set forth in Article 25 hereof.
3. BASE RENT. Tenant shall pay to Landlord an annual base rent ("Base Rent")
for the Premises, (initially based on 32,422 rentable square feet and including
adjustments necessary to reflect the addition of the First Take-Down Space and
Second Take-Down Space pursuant to Article 36 hereof) as shown below for each
respective period in equal monthly installments during each respective period as
follows:
ANNUAL MONTHLY BASE RENT PER
LEASE YEAR BASE RENT INSTALLMENT RENTABLE SQUARE FOOT
---------- --------- ----------- --------------------
*** *** *** ***
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Tenant shall pay each installment of Base Rent in advance on the first day of
every calendar month of the Term. All such payments shall be made payable to
Landlord or Landlord's agent and shall be made at the office of the Building or
at such other places and to such other parties as Landlord shall from time to
time by written notice appoint. Base Rent shall be payable without any prior
demand therefor and without any deductions or set-offs whatsoever. If the Term
commences on a day other than the first day of the calendar month, or ends on a
day other than the last day of the, calendar month, the Base Rent for such
fractional month shall be prorated on the basis of 1/365th of the annual Base
Rent for each day of such fractional month.
4. RENT ADJUSTMENTS. Landlord and Tenant agree that the following rent
adjustments shall be made with respect to each calendar year of the Term, or
portion thereof, including the calendar year in which the Term of this Lease
begins and the calendar year in which the Term of this Lease terminates, after
the Base Year (which Base Year for purposes of this Lease shall be the calendar
year ending on December 31, 1997). For purposes of such rent adjustments,
Tenant's Proportionate Share is agreed to be ***%, calculated by dividing
32,422 rentable square feet, the initial square footage of the Premises by
/***/, being the rentable square feet in the Building, and effective on /***/
Tenant's Proportionate Share is increased to ***%. to reflect the addition of
the First Take-Down Space of /***/ rentable square feet to the Premises pursuant
to Article 36 hereof and effective on /***/, Tenant's Proportionate Share is
increased to ***% to reflect the addition of the Second Take of /***/ rentable
square feet to the Premises.
__________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(A) Tenant shall pay to Landlord as additional rent an amount equal to
Tenant's Proportionate Share of the amount by which Ownership Taxes (as
hereinafter defined) paid in any calendar year during the Term after the Base
Year exceed Ownership Taxes paid in the Base Year. Subject to the provisions
below in this Paragraph (A), "Ownership Taxes" shall mean all taxes,
assessments, impositions and governmental charges of every kind and nature which
Landlord shall pay in a calendar year because of or in any way connected with
the ownership, leasing, management, and operation of the Building and the
Property. The definition of Ownership Taxes is subject to the following:
(1) the amount of ad valorem real and personal property taxes against
Landlord's real and personal property to be included in Ownership Taxes shall be
the amount shown by the latest available tax bills required to be paid in the
calendar year in respect of which ownership Taxes are being determined. The
amount of any tax refunds shall be deducted from Ownership Taxes in the calendar
year they are received by Landlord;
(2) the amount of special taxes and special assessments to be included
shall be limited to the amount of the installments (plus any interest, other
than penalty interest, payable thereon) of such special tax or special
assessment required to be paid during the calendar year in respect of which
Ownership Taxes are being determined;
(3) there shall be excluded from Ownership Taxes all income taxes
[except for a specific tax or excise on rents or other income from the Property
(or on the value of leases thereon) or a specific gross receipts tax or excise
on rents or other income from the Property (or on the value of leases thereon)],
excess profit taxes, franchise, capital stock and inheritance or estate taxes,
except to the extent that any such tax is in lieu of, in substitution for, or a
supplement to, in whole or in part, any tax included in Ownership Taxes.
Ownership Taxes shall also exclude all taxes, assessments, charges, costs and
disbursements paid in connection with the portion of the Building used for hotel
purposes, and provided Tenant has timely paid Tenant's Share of Ownership Taxes,
ownership Taxes shall exclude any penalties imposed in connection with any
failure of Landlord to timely pay any Ownership Taxes; and
(4) Ownership Taxes shall also include, in the calendar year paid, any
actual out-of-pocket fees, costs and expenses (including reasonable attorneys'
fees) incurred by Landlord in contesting or attempting to reduce or limit any
ownership Taxes, regardless of whether any such reduction or limitation is
obtained.
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(B) Tenant shall also pay to Landlord as additional rent an amount equal to
Tenant's Proportionate Share of the amount by which Operating Expenses for any
calendar year during the Term after the Base Year exceed Operating Expenses for
the Base Year. Subject to the provisions below in this Paragraph (B) ,
Operating Expenses shall mean all expenses, costs and disbursements of every
kind and nature paid, incurred, or otherwise arising in respect of a calendar
year because of or in connection with the ownership, management, maintenance,
repair, and operation of the Building and the Property. The definition of
Operating Expenses is subject to the following:
(i) There shall be excluded from Operating Expenses: (1) costs of
alterations of tenant spaces; (2) depreciation and amortization except as
specifically provided herein; (3) principal and interest payments on mortgages,
and financing or refinancing expenses; (4) return on investment; (5) Ownership
Taxes with the respect to which Tenant is liable for its Proportionate Share
pursuant to the preceding paragraph (A); (6) the cost of capital improvements,
capital repairs in the nature of capital replacements, and capital equipment,
except as provided in clause (ii) below with respect to capital items resulting
in a reduction or limitation in Operating Expenses or required to comply with
governmental requirements; (7) ground lease or master lease rents or costs in
connection therewith; (8) real estate brokers, leasing commissions or
compensation and any other expenses incurred in leasing space or procuring
tenants; (9) any costs for which Landlord has received reimbursement (other than
reimbursements from tenants under operating expense escalation clauses), whether
from insurance or condemnation proceeds or clockwise; (10) attorneys, fees,
costs and disbursements and other expenses incurred in connection with
negotiation or enforcement of leases with tenants or prospective tenants of the
Building; (11) expenses in connection with any service or other benefits of a
type which are not provided to Tenant but which are Provided to another tenant
or occupant of the Building; (12) overhead and profit increment paid to parents,
subsidiaries or affiliates of Landlord or its beneficiary for services on or to
the Building to the extent only that the costs of such services exceed the
competitive costs of such services were they not so rendered by such parent,
subsidiary or affiliate (subject, however, to the provision in clause (15) below
as to management fees); (13) any compensation paid to clerks, attendants or
other persons in commercial concessions operated by Landlord or Landlord's
beneficiary or any affiliate of either; (14) advertising, marketing and
promotional expenditures; (15) management fees to the extent such fees exceed
similar costs incurred in comparable office buildings in the area; provided,
however, that in any event Tenant agrees that there may be included in Operating
Expenses a management fee, whether paid to an affiliate of Landlord's
beneficiary or an unrelated third party, in an amount up to 3% of gross revenues
derived from the Building; (16) wages, salaries or other compensation paid to
any employees of Landlord or Landlord's beneficiary or management agent above
the grade of building manager; (17) penalties or fines incurred in connection
with Landlord's failure to comply with laws unless caused by the act or omission
of Tenant, its agents or employees, and (18) all charges, costs and
disbursements properly allocable to the Hotel Premises.
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(ii) In the event Landlord makes any capital improvement or any capital
repair in the nature of a capital replacement or installs any capital equipment
during the Term hereof which (a) results in a reduction or limitation in
Operating Expenses, or (b) is required to comply with any governmental rules,
regulations or requirements applicable from time to time to the Building or to
the Property and enacted or initially enforced after the date of execution
hereof, the costs thereof, as amortized in each case on a straight-line basis
(unless otherwise required by generally accepted accounting principles) over the
useful life of the item so capitalized, may be included in Operating Expenses;
provided, however, that the amount paid by Tenant for any calendar year or
portion thereof which falls within the Term of this Lease on account of a
capital item described in clause (a) above shall not exceed the actual reduction
in Tenant's Proportionate Share of Operating Expenses with respect to such
calendar year or portion thereof by reason of such capital item. If the
Building shall not have been fully occupied by tenants at any time during the
Base Year or any succeeding calendar year, the Operating Expenses for such year
may be equitably adjusted to reflect the Operating Expenses which vary with
occupancy as though the Building had been fully occupied throughout such year.
(C) [Intentionally Deleted]
(D) In order to provide for current payments on account of increases in
Ownership Taxes and Operating Expenses over the Base Year, Tenant agrees, at
Landlord's request, to pay on account to Landlord for each calendar year of the
Term or portion thereof following the Base Year, Tenant's share of adjustments
due for such ensuing calendar year or portion thereof, as reasonably estimated
by Landlord from time to time, in equal monthly installments, commencing on the
first day of the month following the month in which Landlord notifies Tenant of
the amount of such estimated rent adjustments or revisions thereto. The
installments of estimated rent adjustments payable for each month of the current
calendar year prior to the date of receipt of Landlord's estimate shall be due
and payable within thirty (30) days after the receipt of such estimate. If, as
finally determined (whether in the succeeding calendar year at the time of
delivery of the statement provided for in paragraph (E) hereof, or in the
current calendar year when the final amount of any portion of Ownership Taxes
becomes known to Landlord), such rent adjustments shall be greater than or less
than the aggregate of all installments so paid on account to Landlord prior to
receipt of an invoice from Landlord, then Tenant upon receipt of such invoice
shall pay to Landlord within twenty (20) days immediately following such
notification the amount of such underpayment, or, provided Tenant is not in
default hereunder, Landlord shall credit Tenant against the rent next coming due
for the amount of such overpayment, as the case may be. It is the intention
hereunder to estimate from time to time the amount of increases in Ownership
Taxes and Operating Expenses for each calendar year over Ownership Taxes and
Operating Expenses for the Base Year, and then to finally determine such rent
adjustments at the end of such calendar year or as soon thereafter as possible
based upon actual increases in Ownership Taxes and Operating Expenses for such
calendar year.
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(E) Landlord agrees to keep books and records showing the Ownership Taxes
and operating Expenses in accordance with a system of accounts and generally
accepted accounting principles consistently maintained on a year-to-year basis
in compliance with -such provisions of this Lease as may affect such accounts.
Landlord agrees that any cost included in Operating Expenses or Ownership Taxes
shall not be included in more than one category of costs comprising Operating
Expenses or ownership Taxes. Landlord shall deliver to Tenant within one
hundred fifty (150) days after the close of each calendar year (including the
calendar year in which this Lease begins and the calendar year in which this
Lease terminates), a statement certified by an officer of Landlord Is agent
substantially in the form of the sample statement attached hereto and made a
part hereof as Exhibit "B". Failure or delay in delivering any such statement
or accompanying invoice, or failure or delay in computing the rent adjustments
pursuant to this Article 4, shall not be deemed a waiver by Landlord of its
right to deliver such items nor shall any such failure or delay be deemed a
release of Tenant's obligations with respect to any such statement or invoice,
or constitute a default hereunder. All rent adjustments payable hereunder shall
be made without any deductions or set-offs whatsoever.
(F) The obligation of Tenant with respect to the payment of Base Rent and
rent adjustments due hereunder shall survive the expiration or termination of
this Lease. Any payment, refund, or credit made pursuant to this Article shall
be made without prejudice to any right of Tenant to dispute, or of Landlord to
correct, any items as billed pursuant to the provisions hereof. In the event
that the Term of this Lease shall have been in effect for less than the full
calendar year immediately preceding Tenant's receipt of the invoices provided
for in paragraphs (D) and (E) hereof or if the Term shall end on a day other
than the last day of a calendar year, the rent adjustment shall be pro rata on a
per diem basis. In no event shall any rent adjustment result in a decrease in
the Base Rent payable from time to time hereunder. Notwithstanding anything
contained herein to the contrary, Landlord shall not have the right to make
demand upon Tenant for additional amounts due with respect to, Operating
Expenses and Ownership Taxes for any calendar year and Tenant shall not have to
right to dispute or contest the amounts due or paid with respect to Operating
Expenses and Ownership Taxes for any calendar year more than three (3) full
years after the end of said calendar year.
(G) In the event that Tenant disputes the accuracy of the statement, or the
information therein contained, furnished by Landlord to Tenant pursuant to
Paragraph (E) above, Tenant may require upon delivering notice in writing within
sixty (60) days after submission of such statement that Ownership Taxes and
Operating Expenses be audited by an independent, nationally recognized public
accounting firm selected by Tenant and satisfactory to Landlord, at Tenant's
expense, except as hereinafter provided. If as finally determined Tenant's
Proportionate Share of actual Operating Expenses and Ownership Taxes for any
calendar year is ninety-five percent (95%) or less of Tenant's Proportionate
Share of Operating Expenses and Ownership Taxes as shown in the statement
furnished by Landlord to Tenant pursuant to Paragraph (E),
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Landlord shall pay the reasonable costs and expenses incurred by Tenant in
engaging such public accounting firm to render such statement and if it is
finally determined that Tenant has overpaid for Tenant's Proportionate Share of
Operating Expenses or Ownership Taxes as a result of an error by Landlord,
Landlord shall credit to tenant the amount of such overpayment in the manner
provided above in Paragraph (D); provided, further, that if as finally
determined Tenant's Proportionate Share of actual Operating Expenses or actual
Ownership Taxes for any calendar year is greater than Tenant's Proportionate
Share of Operating Expenses or ownership Taxes as shown in such statement
furnished by Landlord to Tenant, Landlord in such instance reserves the right to
issue to Tenant an amended invoice adjusting the amount of Tenant's
Proportionate Share payable by Tenant to Landlord for such year. The statement
rendered by such public accounting firm shall be final, binding and conclusive
upon Landlord and Tenant.
(H) In the event Tenant selects such firm of nationally recognized
certified public accountants to examine Landlord's books and records for any
calendar year, such firm shall promptly conduct such examination in accordance
with generally accepted accounting principles consistently applied and, as soon
as practicable, render to Landlord and Tenant a report stating such accountants,
determination of the Operating Expense and Ownership Tax increase or decrease
for such year over the Base Year and, if such determination is inconsistent with
Landlord's statement of Operating Expense or Ownership Tax increase furnished to
Tenant by Landlord, a reasonably-detailed basis for the determination and
explanation of each discrepancy.
Such accountants engaged by Tenant may inspect, audit, review, copy and
examine (and Landlord agrees to make the same available for such purposes) in
Chicago, Illinois only such of Landlord's books and records as are directly
related to the preparation of Landlord's statement of Operating Expense and
Ownership Tax increase, and such accountants engaged by Tenant may examine none
of Landlord's books and records with respect to any property other than the
Property.
Landlord shall not be obligated to permit any individual to examine
Landlord's books and records unless such individual and such individuals
employer first execute and deliver to Landlord a written acknowledgment
affirming that (i) such individuals examinations of Landlord's books and records
shall be strictly confidential, and (ii) the results thereof and information
derived therefrom or obtained in the course thereof shall not be (a) disclosed
by such parties to any. person other than such individual's direct supervisor
and Tenant's employees who have a position within Tenant requiring them to know
such information and other individuals to whom disclosure is required by law or
governmental rule or regulation, or (b) used by such parties for any purpose
other than in preparing the report to be rendered to Landlord and Tenant;
provided, however, such results and information from the accountant's
examination may be used by Landlord and Tenant in enforcing their respective
rights and obligations hereunder.
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Tenant hereby covenants and agrees with Landlord that any examination of
any information relating to Operating Expenses or Ownership Taxes furnished by
Landlord to Tenant and any examination of Landlord's books and records by
Tenant, its employees or agents shall be confidential in accordance with the
provisions of this Paragraph (H) and the results of such examinations and
information derived therefrom or obtained in the course thereof shall not be
disclosed to anyone or used for any purpose other than as permitted pursuant to
this Article 4.
5. CONDITION OF PREMISES. Tenant's entry into possession of all or any
part of the Premises shall be conclusive evidence as against Tenant that such
part of the Premises was in good order and satisfactory condition when Tenant
took possession, except for (a) any latent defects in the structure of the
Building (including the exterior of the Building and exterior windows of the
Building), or (b) any latent defects in the Shell and Core Work constructed for
Tenant's occupancy pursuant to Article 35(A) or in the electrical, plumbing,
HVAC or other common systems of the Building, excluding items of damage caused
by Tenant, its agents, contractors and suppliers, or (c) any incomplete Shell
and Core Work which shall be identified by Landlord and Tenant prior to 14
Tenant's entering into possession of the Premises for the purpose of conducting
its business therein, or (d) any latent defects in any Tenant's Work furnished
by Landlord pursuant to Article 35.B, and any punchlist items in such Tenant's
Work identified by Landlord and Tenant prior to Tenant's entering into
possession of the Premises for the purpose of conducting its business therein.
Tenant acknowledges that no promise of Landlord or its agents to alter, remodel
or improve the Premises or the Building and no representation respecting the
condition of the Premises or the Building have been made by Landlord or its
agents to Tenant other than as may be contained herein.
6. POSSESSION.
(A) In the event that possession of the Premises shall not be delivered to
Tenant on the date above fixed for the commencement of the Term, this Lease
shall nevertheless continue in full force and effect, and no liability shall
arise against Landlord out of any such delay beyond the abatement of rent as
provided in Article 35(A).
(B) Tenant shall have the right from time to time to enter into possession
of all or any part of the Premises prior to the Commencement Date for the
purpose of conducting its business therein. All of the covenants and conditions
of this Lease (including, without limitation, Landlord's provision of services
as described in Article 9 hereof) shall be binding upon the parties hereto in
respect of such pre-Term possession the same as if the first day of the Term had
been fixed as of the date when tenant entered such possession, except that
Tenant shall not be obligated to pay any Base Rent or any rent adjustments
pursuant to Article 4 hereof for the period prior to the Commencement Date, but
Tenant shall be responsible for the payment of electricity pursuant to Article
9(C) and for the payment of all costs incurred for janitorial and
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cleaning services for the Premises from and after the date that Tenant so enters
into possession for purposes of conducting business therein.
7. REPAIRS. Subject to Force Majeure events (as defined in Article
35(A)), Tenant will, at its own expense and subject to the provisions of Article
8 of this Lease, keep the "Tenant Responsible Premises" (as defined below in
this Article 7) in good repair and tenantable condition at all times during the
Term of this Lease, and Tenant shall promptly and adequately repair all damages
to the Tenant Responsible Premises (except reasonable wear and tear and as
otherwise provided in Article 25 of this Lease) and replace or repair all
damages or broken interior glass (including any glass demishing walls and signs
thereon, fixtures and appurtences, under the cited supervision and with the
approval of Landlord, and within any reasonable period of time specified by
Landlord. If Tenant does not do so, ten (10) days after written notice from
Landlord (or sooner in an emergency situation or other situation giving or
threatening to give rise to damage to person or property exists), Landlord may,
but need not, make such repairs or replacements and the amount paid by Landlord
for such repairs and replacements (including Landlord's overhead and profit and
the cost of general conditions at Landlord's then published rates) shall be
deemed additional rent reserved under this Lease due and payable within thirty
(30) days after delivery of a xxxx therefor by Landlord. Landlord may, but
shall not be required so to do, enter the Premises at all reasonable times to
make such repairs or alterations, improvements and additions, including but not
limited to ducts and all other facilities for air conditioning service, as
Landlord shall deem necessary or appropriate for the safety, preservation or
improvement of the Premises or the Building or any equipment located in the
Building, or as Landlord may be required to do by the City of Chicago or by the
order or decree of any court or by any other governmental authority, provided
that Landlord gives Tenant prior notice (except in cases of an emergency) of any
such repairs, alterations, improvements and additions in the Premises, and
(except in cases of an emergency) so long as the performance of such work during
ordinary business hours does not unreasonably interfere with Tenant's ability to
conduct its business in the Premises.
In the event Landlord or its agents or contractors shall elect or be
required, in accordance with the preceding grammatical paragraph, to make
repairs, alterations, improvements or additions to the Premises or the Building
or any equipment located in the Building, Landlord shall be allowed to take into
and upon the Premises all material that may be required to make such repairs,
alterations, improvements or additions and, during the continuance of any said
work, to temporarily close doors, entryways, public space and corridors in the
Building and to interrupt or temporarily suspend Building services and
facilities without being deemed or held guilty of eviction of Tenant or for
damages for Tenant's property, business or person, and the rent reserved herein
shall in no way xxxxx while said repairs, alterations, improvements or additions
are being made, and Tenant shall not be entitled to maintain any off-set or
counterclaim for damages of any kind against Landlord by reason thereof.
Landlord may, at its option, make all repairs, alterations, improvements and
additions in and about the Building and the Premises
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during ordinary business hours, so long as (except in case of an emergency) the
performance of such work during ordinary business hours does not materially
interfere with Tenant's access to the Premises or Tenant's ability to conduct
its business in the Premises, and if such work during ordinary business hours is
not of an emergency nature and does not materially interfere with Tenant's
access to the Premises or Tenant's ability to conduct its business in the
Premises and Tenant nonetheless desires to have the same done during any other
hours Tenant shall pay for all overtime and additional expenses resulting
therefrom.
As used herein, "Tenant Responsible Premises" shall mean all alterations,
additions and improvements in and to the Premises at any time or from time to
time existing, whether constructed by Landlord or Tenant, including but not
limited to all items of work constructed in the Premises in preparation for
Tenant's initial occupancy thereof and any Antennae installed by Tenant from
time to time on the Roof as described in Article 40, but excluding all "Building
Systems" (as defined below in this Article 7).
Subject to Force Majeure events, Landlord shall keep in good order and
repair (and the cost thereof may be included in Operating Expenses), except as
otherwise provided in Subparagraph B(ii) of Article 4 hereof) the following
items ("Building Systems"): (i) the structural components and common areas of
the Building serving the Premises; (ii) the mechanical, electrical, plumbing,
heating ventilation, and air cooling systems serving the Premises unless
installed by Tenant, including components of said systems outside and up to the
perimeter of the Premises, but, other than as set forth in clauses (iii) and
(iv), excluding any related systems, fixtures and equipment located within the
Premises which are not a part of the Shell and Core Work; (iii) HVAC ducts in
the Premises, but excluding variable air volume (VAV) boxes, reheats, in-ducts
and other equipment and devices in or attached to the ducts; and (iv) the
Building sprinkler system serving the Premises, including piping up to the
Premises but excluding any piping, heads and apparatus within the Premises.
Any liability of Tenant or Landlord for the performance of their respective
obligations under this Article 7 shall be subject to the provisions of Articles
11 and 25 hereof.
8. ALTERATIONS. Tenant shall not, without the prior written consent of
Landlord in each instance obtained, make any repairs, replacements, alterations,
improvements or additions (collectively, "Improvements") to the Premises, the
performance of which affects the Building structure, Building systems, common
areas or other tenants' premises. Tenant shall give Landlord reasonable prior
notice of all Improvements during the Term whether or not Landlord's consent
thereto is required. To the extent Landlord's consent is required for any
Improvements, such consent shall not be unreasonably withheld or delayed, but
such consent may be conditioned upon such requirements regarding such
Improvements as Landlord deems appropriate, including without limitation, the
submission of detailed plans and specifications, and such Improvements shall be
of a quality equal to or better than the standards of the Building. At
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the time that Landlord gives its consent to any such improvements, Landlord may
designate in writing any items which are atypical for standard office uses or
require unusual expense for the removal (such as, but not limited to, staircases
and vaults) as items which Landlord reserves the right to require Tenant to
remove upon the expiration of the Term or upon any termination of this Lease or
Tenant's right to possession hereunder. Neither approval of any plans and
specifications nor supervision of any improvement work by Landlord or its agents
shall constitute a representation or warranty by Landlord or its agents that
such plans or work either (i) are complete or suitable for their intended
purpose, or (ii) comply with applicable laws, ordinances, codes and regulations,
it being expressly agreed by Tenant that Landlord assumes no responsibility or
liability whatsoever to Tenant or to any other person or entity for such
completeness, suitability or compliance. All such Improvements shall be done at
Tenant's expenses by employees or agents of Landlord or contractors hired by
Landlord (or by contractors hired by Tenant which contractors shall be subject
to Landlord's prior written consent, which shall not be unreasonably withheld,
and which contractors must be reputable and financially responsible, maintain
proper insurance and /***/), and, in either event, Tenant shall pay to Landlord
or its agent a reasonable charge for supervision, general conditions, overhead
and other actual out-of-pocket costs and expenses incurred by Landlord in
connection with such work, as established by Landlord from time to time. The
billing for such employees' time and general conditions shall be based upon the
then published rates of the Building.
In the event that Tenant uses its own contractors for the Improvements
Landlord may, without limitation, require Tenant to: (a) comply with such
constructions standards or procedures as may be applicable from time to time for
construction activities in the Building; (b) give assurances reasonably
satisfactory to Landlord that the construction of such Improvements will not
/***/; (c) submit satisfactory insurance certificates; (d) obtain all necessary
permits; (e) furnish satisfactory security for the payment of all costs to be
incurred in connection with the Improvements; and (f) upon completing any such
Improvements, furnish Landlord with contractors' affidavits and full and final
waivers of lien and receipted bills covering all labor and material expended and
used and furnish Landlord with final construction drawings (marked up as
constructed) for any such Improvements.
Landlord and Tenant acknowledge that the Americans With Disabilities Act of
1990 (42 U.S.C. (S) 12-101 et seq.) and regulations and guidelines promulgated
-- ---
thereunder, as all of the same may be amended and supplemented from time to time
(collectively "ADA"), establish requirements for business operations,
accessibility and barrier removal, and that such requirements may or may not
apply to the Premises and the Building depending on, among other things,
whether: (1) Tenant's business is deemed a "public accommodation" or
"commercial facility", (2) such requirements are "readily achievable", and (3) a
given alteration affects a "primary function area" or triggers "path of travel"
requirements. The parties hereby agree that
__________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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(a) Landlord shall be responsible for ADA Title III compliance in the common
areas of the Building, except as provided below, (b) Tenant shall be responsible
for ADA Title III compliance in the Premises, including direct access into the
Premises and any leasehold improvements or other work to be performed in the
Premises under or in connection with this Lease other than the Shell and Core
Work, and (c) Landlord may perform, or require that Tenant perform, and Tenant
shall be responsible for the cost of, ADA Title III "path of travel"
requirements triggered by alterations in the Premises other than the Shell and
Core Work and the Tenant's Work to be performed in connection with Tenant's
initial occupancy of the Premises. Tenant shall be solely responsible for
requirements under Title I of the ADA relating to Tenant's employees.
All Improvements shall comply with all insurance requirements and with all
applicable governmental laws, requirements, codes, ordinances and regulations.
All Improvements shall be constructed in a good and workmanlike manner and only
good grades of material shall be used. Except for he negligence of Landlord,
its beneficiary or their respective agents, Tenant shall protect, defend,
indemnify and hold Landlord, the Building and the Property, Landlord's
beneficiaries, and their respective officers, directors, beneficiaries,
partners, agents and employees harmless from any and all liabilities of every
kind and description which may arise out of or in connection with such
Improvements.
All Improvements made by Landlord or Tenant in or upon the Premises whether
temporary or permanent in character, including but not limited to wall
coverings, carpeting and other floor covering, lighting installations, built-in
or attached shelving, cabinetry, and mirrors, and shall become Landlord's
property and shall remain upon the Premises at the termination of this Lease by
Lapse of time or otherwise without compensation to Tenant [excepting only
Tenant's movable office furniture, trade fixtures (other than attached or
installed lighting equipment), telecommunications and broadcasting equipment and
office equipment]; provided, however, that Landlord shall have the right to
require Tenant to remove at Tenant's sole cost and expense in accordance with
the provisions of Article 16 of this Lease: such Improvements which, in the
case of initial Improvements to the Premises, are atypical for standard office
uses or require unusual expense for removal (such as, but not limited to,
staircases, vaults and telecommunications and broadcasting equipment) and are so
identified in writing by Landlord at the time of its approval of the Plans
pursuant to Article 35; any and all hazardous materials installed or placed in
the Premises by Tenant; any equipment installed by Tenant on the roof of the
Building or elsewhere outside the Premises, and any cabling and wiring and other
facilities located outside the Premises and serving or intended to serve the
Premises; and any items which Landlord previously designated for possible
removal, at the time Landlord granted its consent to such Improvements, as
provided above in this Article 8.
All cabling, wiring and equipment installed at any time by or on behalf of
Tenant outside of the Premises on the Property, whether as part of the initial
Tenant's Work or otherwise,
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including, without limitation, any such items installed in connection the
Antennae described in Article 40 hereof (any installation of any such cabling,
wiring or equipment shall in all cases be subject to Landlord's consent in its
absolute discretion), shall be operated and maintained at Tenant's sole cost and
expense in a manner which does not disturb improvements on the Property or the
operation thereof or interfere with the operations of, or services provided to,
tenants in the Building. Any such installation, operation, and maintenance shall
be in accordance with any reasonable rules and regulations established by the
Landlord from time to time, shall be at Tenant's sole risk, and shall be subject
to the Tenant insurance requirements of Article 25 hereof and the provisions of
Article 11 hereof. All such cabling, wiring and equipment shall be appropriately
identified by color code, identification plate and/or other means reasonably
specified by Landlord at the time of installation if initially installed by
Tenant, and Tenant shall provide Landlord with plans and drawings locating and
identifying such items in such detail as may be reasonably requested by
Landlord.
9. SERVICES. Landlord shall provide the following services on all days
during the Term of this Lease excepting Sundays and holidays (which holidays are
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day and may, in addition, include any other holiday from time to time
observed by Tenant), unless otherwise stated:
(A) Adequate passenger elevator service will be furnished daily as
determined by Landlord, including the services of at least one (1) passenger
elevator at all times (including holidays), subject to Force Majeure.
(B) Conditioned air for heating, ventilating and cooling when necessary
for normal comfort in the Premises will be provided from 8:00 A.M. to 8:00 P.M.
Monday through Friday, and 8:00 A.M. and 1:00 P.M. Saturday, in accordance with
the standards for the Premises set forth in Exhibit "C" attached hereto and made
a part hereof. Whenever heat-generating machines, equipment or lighting
fixtures installed by Tenant or excessive electrical usage by Tenant affect the
temperature maintained by Landlord in the Premises, Landlord shall be relieved
of responsibility for maintaining air conditioning in the Premises, and in such
event Landlord further reserves the right at its option to (1) require Tenant to
discontinue use of such heat-generating machines, equipment, lighting fixtures
or excessive electrical load, or (2) install supplementary air conditioning
units in the Premises, the cost, installation, operation and maintenance of
which shall be paid by Tenant to Landlord at such rates as Landlord charges from
time to time in the Building. Tenant agrees that at all times it will cooperate
with Landlord and abide by all regulations and requirements which Landlord may
prescribe for proper functioning of the ventilating and air conditioning
systems.
Landlord agrees that it shall make available to Tenant after-hours HVAC
service at the expense of Tenant at times other than those identified above in
this Paragraph (B),
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provided that if Tenant desires any such service on Mondays through Fridays
(holidays described above excepted), it shall request such service from Landlord
on or before 4:00 p.m. on the day for which such service is requested, and in
the event Tenant desires such service on Saturdays or Sundays or holidays (as
described above), it shall request such service from Landlord no later than 4:00
p.m. on Friday (for service on Saturday or Sunday) and by 4:00 p.m. on the day
preceding any holiday (for service on such holiday). Tenant shall pay for all
such after-hours HVAC services at Landlord's published rates in effect in the
Building from time to time (the published rates currently in effect being
$81/hour per fan for water chilled air and $51/hour per fan for circulating
air). Tenant may request such after-hours HVAC service by zone (determined by
the respective areas served by separate fan rooms); and if another tenant has
also specifically requested such after-hours service in the same zone during the
same time period as requested by Tenant, Landlord shall reasonably allocate the
charge for such service between Tenant and such other tenants so requesting such
service.
(C) Electricity for the Premises shall not be furnished by Landlord but
shall be furnished and billed directly to Tenant by the electric utility company
serving the Building. Landlord shall cause the Premises to be separately
metered, if necessary. Tenant shall make all necessary arrangements with the
utility company for paying for electric current furnished by it to Tenant and
Tenant shall pay for all charges for electric current consumed on the Premises
during the Term of this Lease. Tenant agrees that the minimum electrical load
of the Premises shall be engineered so that during and after normal business
hours the minimum temperature required therein shall be maintained by Tenant at
all times so long as electrical service to the Premises is not terminated or
interrupted through no fault or neglect of Tenant. Tenant shall not install or
operate any electrical equipment or fixtures that overload lines servicing the
Premises or which exceed a connected electrical load of the incidental use
equipment of an average of one watt per square foot of the Premises, and an
average of 7 xxxxx per square foot of the Premises when added to Tenant's
electrical load for lighting.
(D) Janitorial services, as specified on Exhibit "D" attached hereto
and made a part hereof, shall be provided at the sole cost and expense of
Landlord, except that commencing on January 1, 1998, all increases in the costs
of providing such janitorial services to Tenant in any calendar year in excess
of Landlord's annualized cost per rentable square foot of providing such
services to Tenant in calendar year 1997 shall be paid by Tenant on an estimated
basis in monthly installments subject to final year-end adjustment in the same
manner as provided for the payment of Operating Expense adjustments in Article 4
hereof. Tenant may from time to time procure directly from Landlord's cleaning
contractor at Tenant's Expense such additional cleaning services as are desired
by Tenant.
(E) Building directory identification of a reasonable number of
listings for Tenant (not to exceed (10) listings).
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(F) Additional services (including after-hour cooling and ventilation
and the provision of water) may be provided on terms and conditions as may be
mutually agreed upon by Landlord and Tenant. Subject to Force Majeure, Tenant
and its employees and invitees shall have access to the Premises twenty-four
(24) hours a day, seven (7) days a week, fifty-two (52) weeks a year. At times
other than normal business hours (i.e. 8 A.M. to 6 P.M. Monday through Friday)
access shall be available through limited entrances and subject to regulations
and procedures in place in the Building from time to time, including the
furnishing of proper employee identification or authorization and the
registering of a person's name, room number and time of entry and departure in a
register furnished by Landlord and placed in the Lobby of the Building.
Tenant shall apply to the applicable utility company or municipality for gas,
telephone and all other utility services, other than those provided by Landlord,
required by Tenant for use in the Premises in accordance with Article 2 hereof
and, subject to Article 8 hereof, Tenant shall be responsible for the connection
and installation of same.
All charges for any services shall be deemed rent reserved under this Lease and
shall be due and payable at the same time as the installment of rent with which
they are billed, or, if billed separately, shall be due and payable within
twenty (20) days after such billing. In the event Tenant shall fail to make
payment for such services within ten (10) days from notice from Landlord that
such amount has not been received, Landlord may, in addition to all other
remedies which Landlord may have for the non-payment of rent without notice to
Tenant, discontinue any or all such services (including, without limitation,
electric current for lights and power in the Premises), and such discontinuance
shall not be held or pleaded as an eviction or as a disturbance in any manner
whatsoever of Tenant's possession, or relieve Tenant from the payment of rent
when due, or vary or change any other provision of this lease or render Landlord
liable for damages for any kind whatsoever.
Tenant agrees that, to the extent permitted by law, neither Landlord nor its
beneficiaries nor any of their respective agents, partners or employees, shall
be liable to Tenant, or any of Tenant's employees, agents, customers or invitees
or anyone claiming through, by or under Tenant, for any damages, injuries,
losses, expenses, claims or causes of action, because of any interruption,
diminution, delay or discontinuance at any time in the furnishing of any of the
above services (including access to the Premises as described above in this
Article 9) when such interruption, diminution, delay or discontinuance is
occasioned, in whole or in part, by repairs, renewals, improvements or
additions, by any strike, lockout or other labor trouble, by inability to secure
gas, electricity, water or other fuel at the Building, by any accident or
casualty whatsoever, by act or default of Tenant or other parties, or by any
other cause beyond Landlord's reasonable control; nor shall any such
interruption, diminution, delay or discontinuance be deemed an eviction or
disturbance of Tenant's use or possession of the Premises or any part thereof;
nor shall any such interruption, diminution, delay or discountenances relieve
Tenant from full performance of
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Tenant's obligations under this Lease, except as otherwise expressly provided
herein. Notwithstanding the foregoing, in the event that (i) any interruption or
discontinuance of services (including access to the Premises as described above)
required to be provided pursuant to this Article 9 which was within the
reasonable control of Landlord to prevent continues beyond three (3) consecutive
business days after written notice to Landlord and materially and adversely
affects Tenant's ability to conduct business in the Premises or (ii) the
performance by Landlord of repairs in the Building that are not the
responsibility of Tenant materially and adversely affects Tenant's ability to
conduct business in the Premises and continues beyond three (3) consecutive
business days after written notice to Landlord, and on account of such
interruption or discontinuance described in clause (i) or such performance of
repairs described in clause (ii), Tenant ceases doing business in the Premises
(or a material portion thereof), Base Rent shall xxxxx thereafter (as to the
Premises or as to such material portion thereof, as the case may be) and for so
long as Tenant remains unable to conduct its business in the Premises (or such
material portion thereof). Landlord agrees to use reasonable efforts to restore
such interrupted or discontinued service or to complete such repairs, as the
case may be, as soon as reasonably practicable.
10. COVENANT AGAINST LIENS. Tenant agrees to pay when due for any work
done or materials furnished by or on behalf of Tenant in or about the Premises
or to all or any part of the Property and nothing in this Lease contained shall
authorize or empower Tenant to do any act which shall in any way encumber the
title of Landlord in and to the Premises or to the Property, nor shall the
interest or estate of Landlord therein be in any way subject to any claims by
way of lien or encumbrance whether claimed by operation or law or by virtue of
any express or implied contract of Tenant, and any claim to a lien upon the
Premises or the Property arising from any act or omission of Tenant shall accrue
only against Tenant and shall in all respects be subordinate to the title and
rights of Landlord to the Premises and the Property. Tenant covenants and
agrees not to suffer or permit any lien or encumbrance to be placed against the
Premises, the Building or the Property with respect to work or services claimed
to have been performed for or materials claimed to have been furnished to Tenant
or the Premises and, in case of any such lien or encumbrance attaching, or claim
thereof being asserted, Tenant agrees to cause it to be immediately released and
removed of record, or to provide security as hereinafter provided. If Tenant
has not removed any such lien or encumbrance or provided Landlord with a title
indemnity bond or such other security as is reasonably satisfactory to Landlord
within thirty (30) days after notice to Tenant by Landlord, such failure shall
constitute a default hereunder and, in addition to all other remedies available
herein, Landlord may, but shall not be obligated to, pay the amount necessary to
remove the lien or encumbrance, without being responsible for making any
investigation as to the validity thereof, and the amount so paid together with
all costs and expenses, including reasonable attorneys' fees, incurred in
connection therewith shall be deemed additional rent reserved under this Lease
due and payable forthwith.
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11. WAIVER OF CLAIMS. Subject to the provisions of Article 25 hereof,
Tenant agrees that Landlord, Landlord's beneficiaries and their respective
officers, directors, beneficiaries, partners, agents, and employees shall not be
liable for (subject, however, to the provisions of Article 9 as to the abatement
of rent for interruption of services) any direct or consequential damage
(including, without limitation, damages claimed for actual or constructive
eviction) either to person or property sustained by Tenant or any other person,
due to the Building, the Property, or any part thereof or any appurtenances
thereof becoming out of repair, or due to the happening of any accident in or
about the Building or the Property, or due to any act or neglect of any tenant
or occupant of the Building or the Property, or any other person, except to the
extent that any such damage is caused by the negligence or intentional acts of
Landlord, its beneficiaries or their respective agents, contractors, servants or
employees. The foregoing provision, subject in all events to the provisions of
Article 25 as stated above, shall apply particularly (but not exclusively) to
damage caused by fire, explosion, water, snow, frost, steam, sewerage,
illuminating gas, sewer gas or odors, or by the bursting or leaking of pipes,
plumbing fixtures, or sprinkler system; without distinction as to the person
whose act or neglect was responsible for the damage and whether the damage was
due to any of the causes specifically enumerated above or to some other cause of
an entirely different kind. Tenant further agrees that all personal property
upon the Premises or brought or caused to be brought within the Building by
Tenant shall be at the risk of Tenant only and that Landlord shall not be liable
for any damage thereto or any theft thereof, except to the extent caused by the
negligence or intentional acts of Landlord, its beneficiaries or their
respective agents, contractors, servants or employees, subject in all events,
however, to the provisions of Article 25. Subject to the provisions of Article
25 hereof, and except for the negligence or intentional acts of Landlord, its
beneficiaries or their respective agents, contractors, servants or employees,
Tenant shall protect, indemnify, defend and save Landlord, its beneficiaries and
their respective officers, directors, agents, beneficiaries, partners, and
employees harmless from and against any and all liabilities, damages, costs,
claims, obligations and expenses arising out of or in connection with Tenant's
use or occupancy of the Premises or Tenant's activities in or about the Building
or the Property, or arising out of (and to the extent caused by) any act or
negligence of Tenant or its agents, contractors, servants, employees or
invitees.
Subject to the provisions of Article 25 hereof, Landlord agrees that Tenant
and its officers, directors, agents and employees shall not be liable to
Landlord for any direct or indirect damage to the Building Systems or to person
or property sustained by Landlord or any other person, caused by any portion of
the Tenant Responsible Premises or any of Tenant's fixtures or equipment
becoming out of repair or due to the happening of any accident in or about the
Premises, except to the extent that any such damage is caused by the negligence
or intentional acts of Tenant or Tenant's agents, contractors, servants or
employees.
Subject to the provisions of Articles 9 and 25 hereof, and except for the
negligence or intentional acts of Tenant or Tenant's agents, contractors,
servants or employees, Landlord shall
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protect, indemnify, defend and save Tenant, its officers, directors, agents and
employees harmless from and against any and all liabilities, damages, costs,
claims, obligations and expenses arising out of or in connection with Landlord's
operation of the Building or Landlord's activities in or about the Building or
the Property other than the Premises or arising out of (and to the extent caused
by) any act or negligence of Landlord, its beneficiaries or their respective
agents, contractors, servants or employees.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written
consent of Landlord, (a) assign, convey, mortgage, pledge or otherwise transfer
this Lease, or any part thereof, or any interest hereunder; (b) permit any
assignment of this Lease, or any part thereof, by operation of law; (d) sublet
the Premises or any part thereof; or (d) permit the use of the Premises, or any
part thereof, by any parties other than Tenant, its agents and employees.
Tenant shall, by notice in writing, advise Landlord of its desire from, on and
after a stated date (which shall not be less than thirty (30) days after the
date of Tenant's notice), to assign this Lease, or any part thereof, or to
sublet any part or all of the Premises for the balance or any part of the Term.
Tenant's notice shall: state the name and address of the proposed assignee or
subtenant; provide financial information in reasonable detail concerning the
proposed assignee or Tenant's obligation to provide such additional information
concerning the financial condition of the proposed assignee or subtenant as may
be requested by Landlord); include all of the material terms of the proposed
assignment or sublease (whether contained in such assignment or sublease or in
separate agreements) and state the consideration therefor and financial aspects
thereof. In the event Tenant delivers such notice, Landlord shall have the
right, to be, exercised by giving written notice to Tenant within ten (10)
business days after receipt of Tenant's notice, to recapture the space described
in Tenant's notice and such recapture notice shall, if given, cancel and
terminate this Lease with respect to the space therein described as of the date
stated in Tenant's notice. If Tenant's notice shall cover all of the Premises,
and Landlord shall have exercised its foregoing recapture right, the Term of
this Lease shall expire and end on the date stated in Tenant's 'notice as fully
and completely as if that date had been herein definitely fixed for the
expiration of the Term. If, however, this Lease be canceled with respect to
less than the entire Premises, Base Rent and rent adjustments reserved herein
shall be adjusted on the basis of the number of rentable square feet retained by
Tenant in proportion to the number of rentable square feet contained in the
Premises, as described in this Lease, and this Lease as so amended shall
continue thereafter in full force and effect.
If Landlord, upon receiving Tenant's notice with respect to any such space,
shall not exercise its right to recapture as aforesaid, and if Tenant is not in
default under the terms of this Lease, Landlord will not unreasonably withhold
its consent to Tenant's assignment of the Lease or subletting such space to the
party identified in Tenant's notice and upon the terms set forth ,in Tenant's
notice, provided, however, that in the event Landlord consents to any such
assignment or subletting, and as a condition thereto, Tenant shall pay to
Landlord fifty per cent (50%) of all profit derived by Tenant from such
assignment or subletting. For purposes of the foregoing,
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profit shall be deemed to include, but shall not be limited to, the amount paid
or payable to Tenant or any other party to effect or to induce Tenant or any
third party to enter into any such transaction, and the amount of all rent and
other consideration of whatever nature payable by such assignee or sublessee or
a third party in excess of the Base Rent and rent adjustments payable by Tenant
under this Lease, after deducting therefrom Tenant's reasonable expenses
incurred in connection with such sublease or assignment, including advertising
expenses, brokerage commissions, rent concessions, tenant improvement
allowances, other financial concessions, and legal fees. If a part of the
consideration for such assignment or subletting shall be payable other than in
cash, the payment to Landlord of its. share of such non-cash consideration shall
be in such form as is reasonably satisfactory to Landlord.
Tenant shall and hereby agrees that it will furnish to Landlord upon request
from Landlord a complete statement, certified by an officer of Tenant
responsible for such information, setting forth in detail the computation of all
profit derived and to be derived from such assignment or subletting, such
computation to be made in accordance with generally accepted accounting
principles. Tenant agrees that Landlord or its authorized representatives shall
be given access at all reasonable times upon prior notice to Tenant to the
books, records and papers of Tenant relating to revenue, expenses and the
computation of profit with respect to any such assignment or subletting, and
Landlord shall have the right to make copies thereof. The percentage of profit
due Landlord hereunder shall be paid to Landlord within thirty (30) days of
receipt of each payment of profit made from time to time by such assignee or
sublessee to Tenant.
Landlord's consent to any assignment or sublease shall not operate as a
consent to any subsequent assignment or sublease or as a waiver of Landlord's
right to require Tenant to seek Landlord's approval of all subsequent
assignments and subleases. Any subletting or assignment hereunder shall not
release or discharge Tenant of or from any liability, whether past, present or
future, under this Lease, and Tenant shall continue fully liable hereunder. Any
subtenant or assignee shall agree in a form reasonably satisfactory to Landlord
to comply with and be bound by all of the terms, covenants, conditions,
provisions and agreements of this Lease to the extent of the space sublet or
assigned, and Tenant shall deliver to Landlord promptly within twenty (20) days
after execution, a fully executed copy of each such sublease or assignment and
all other agreements related thereto and an agreement of compliance by each such
subtenant or assignee. Tenant agrees to pay to Landlord, on demand, all
reasonable costs incurred by Landlord (including reasonable fees paid to
attorneys) in connection with any request by Tenant for Landlord to consent to
any assignment or subletting by Tenant. Any sale, assignment, mortgage,
transfer, or subletting of this Lease which is not in compliance with the
provisions of this Article shall be of no effect and void. Notwithstanding any
requirement for Landlord to consider, solicit or obtain a sublease or
assignment, whether statutory or otherwise, Landlord and Tenant expressly agree
that Landlord's obligation with respect to such sublease or assignment shall
arise only when Tenant submits such sublease or assignment to Landlord in the
manner set out in this Article 12.
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For purposes of the foregoing, (a) if Tenant is a partnership, any change
in the partners of Tenant resulting in a change in the control of such
Partnership, or (b) if Tenant is a corporation the voting stock of which is not
listed on a nationally recognized security exchange or the National Association
for Securities Dealers Automated Quotations (NASDAQ) or its equivalent, any
transfer of any or all of the shares of stock of Tenant by sale, assignment,
operation of law or otherwise resulting in a change in the present control of
such corporation, or (c) the transfer of all or substantially all of the assets
of Tenant, shall be deemed to be an assignment within the meaning of this
Article 12.
Notwithstanding anything set forth above to the contrary, Tenant shall have
the right without the prior consent of Landlord, except as provided below, to
assign this Lease or sublet the Premises or any part thereof to any Successor or
Affiliate, as hereinafter defined, of Tenant, or to effect a transfer of
ownership, control or assets of Tenant to a Successor or Affiliate of Tenant, on
the following conditions: (a) Tenant shall notify Landlord in writing of such
assignment, subletting or transfer not less than thirty. (30) days prior to the
effective date thereof, and furnish to Landlord such information (including the
most recent financial statement) regarding the identity, business, reputation
and financial condition of such Affiliate or Successor as Landlord may
reasonably require; (b) Tenant shall deliver to Landlord evidence reasonably
satisfactory to Landlord that such Affiliate or Successor satisfies the
requirements of this grammatical paragraph of Article 12; (c) in the case of any
assignment (other than a deemed assignment by transfer of ownership, control or
assets of Tenant) or any subletting, Tenant shall deliver to Landlord copies of
all operative documents effecting such assignment or subletting, which documents
shall be subject to Landlord's reasonable approval; and in the case of a deemed
assignment by transfer of ownership, control or assets of Tenant, Tenant shall
deliver to Landlord an executed copy of an agreement in form reasonably
satisfactory to Landlord by which such transferee Affiliate or Successor has
agreed to comply with, be bound by, and assume all of the terms, covenants,
conditions and provisions of this Lease; (d) any such subletting, assignment or
transfer shall not release or discharge Tenant of or from any liability, whether
past, present or future, under this Lease and Tenant shall continue fully liable
hereunder; and (e) the creditworthiness of such Successor or Affiliate shall be
reasonably acceptable to Landlord. "Successor" is defined as any corporation or
entity resulting from a merger or consolidation with Tenant or any corporation
or entity succeeding to substantially all of the business and assets of Tenant;
and "Affiliate" is defined as any corporation that through one or more -
intermediaries, controls or is controlled by, or is under common control with,
Tenant ("control" meaning the possession of the power to direct or cause the
direction of the management and policies of an entity, whether through the
ownership o voting securities, by contract or otherwise). if, after giving
effect to any such assignment, subletting or transfer to a Successor or
Affiliate and any merger, consolidation, reorganization or transfer of
assets in connection therewith, the aggregate net worth of the assigning Tenant
(remaining liable on the Lease) and
-22-
the assignee, sublessee or transferee would not be substantially the same as or
greater than the net worth of the Tenant (and any Affiliate or Successor
previously liable on the Lease) immediately prior to such assignment, sublease
or transfer (and any merger, consolidation, reorganization or transfer of assets
in connection therewith), then Landlord shall not be deemed to be acting
unreasonably in determining the creditworthiness of the Successor or Affiliate
not to be acceptable.
Notwithstanding anything to the contrary contained in this Article 12,
Tenant shall have the right, without the consent of Landlord, to enter into
license agreements (a "License") permitting the licensees to enter the Premises
and use Tenant's telephone and computer systems in the Premises provided (i)
Tenant gives Landlord reasonable advance notice of any such License with such
information as Landlord may reasonably request, including, without limitation, a
copy of the license agreement, (ii) Tenant shall not be in default under this
Lease at the time such License is granted, (iii) the spaces subject to the
License shall be operated by the licensee under the control of Tenant; however,
the licensee shall not be required to assume Tenant's obligations under this
Lease but shall be subject to, agree to be bound by and shall use and occupy the
Premises in accordance with all of the terms, covenants and conditions of this
Lease, (iv) such Licenses shall permit the use of the Premises only for limited
hours and shall be of limited duration and the aggregate source subject to all
such Licenses shall not exceed twenty-five percent (25%) of the Premises demised
hereunder from time to time, (v) no licensee may use the name or address of or
otherwise identify the Property or the Building in connection with its
activities, and (vi) any such licensee shall have in effect at all times any
necessary permits or licenses for its activities or business and the use of the
Premises by such licensee shall not impair the reputation or character of the
Building as a first class building.
13. EXPENSES OF ENFORCEMENT. Tenant shall pay all reasonable attorneys,
fees and expenses of Landlord incurred in successfully enforcing any of the
obligations of Tenant under this Lease.
Landlord shall pay all reasonable attorneys, fees and expenses of Tenant
incurred in successfully enforcing any of the obligations of Landlord under this
Lease.
14. LANDLORD'S LIEN. Landlord shall have a first lien upon any and all
rents from permitted subtenants or assignees of Tenant (if any)and upon the
interest of Tenant under this Lease to secure the payment of all money due under
this Lease.
15. LANDLORD'S REMEDIES. If default shall be made in the payment of the
rent or any installment thereof or in the payment of any other sum required to
be paid by Tenant under this Lease, or under the terms of any other lease or
agreement between Landlord and Tenant, and such default shall continue for ten
(10) days after written notice to Tenant or if default shall be made in the
performance of any of the other covenants or conditions which Tenant is required
to observe and perform hereunder or under any other lease or agreement
-23-
between Landlord and Tenant and such default shall continue for thirty (30) days
after written notice to Tenant (or if any such default not involving a hazardous
or dangerous condition and not involving Tenant's failure to comply with the
provisions of Article 25 hereof cannot be cured within such 30-day period, so
long as Tenant has promptly commenced to cure such default during such initial
30-day period and thereafter diligently pursues such cure to completion within a
reasonable period of time and in all events within an additional sixty (60) days
after the expiration of said 30-day period) or if the interest of Tenant in this
Lease shall be levied on under execution or other legal process (and such 'levy
is not dismissed within sixty (60) days), or if any petition shall be filed by
or against Tenant to declare Tenant a bankrupt (and is not dismissed within
sixty (60) days) or to delay, reduce or modify Tenant's debts or obligations or
if any petition shall be filed or other action taken to reorganize or modify
Tenant's capital structure, if Tenant be a corporation or other entity, or if
Tenant be declared insolvent according to law or if any assignment of Tenant's
property shall be made for the benefit of creditors or a receiver or trustee is
appointed for Tenant or its property if Tenant shall abandon or vacate the
Premises during the Term this Lease for a period exceeding fifteen (15)
consecutive days, then Landlord may treat the occurrence of any one or more of
the foregoing events as a breach of this Lease, and thereupon at its option may,
without further notice or further demand of any kind to Tenant or any other
person, have any one or more of the following described remedies in addition to
all other rights and remedies provided at law or in equity:
(a) Landlord may terminate this Lease and the Term created hereby, in which
event Landlord may forthwith repossess the Premises by forcible entry and
detainer suit or otherwise and be entitled to recover forthwith as damages a sum
of money equal to the present value of the rent provided to be paid by Tenant
for the balance of the stated Term of the Lease, less the present value of the
fair rental value of the Premises for such period, and any other sum of money
and damages owed by Tenant to Landlord.
(b) Landlord may terminate Tenant's right of possession and may repossess
the Premises by forcible entry and detainer suit, or otherwise, without further
demand or notice of any kind to Tenant and without terminating this Lease, in
which event Landlord shall reasonably attempt to mitigate its damages as
required by law. Landlord in such instances expressly reserves the right to
relet all or any part of the Premises for such rent and upon such terms as shall
be satisfactory to Landlord may terminate greater or Lesser than that remaining
under the Term of this Lease and the right to relet the Premises as a part of a
larger area and the right to change the character or use made of the Premises).
For the purpose of such reletting, Landlord may make such repairs, changes,
alterations or additions in or to the Premises as may be necessary or
convenient. If Landlord shall fail to relet the Premises, then Tenant shall pay
to Landlord as damages a sum equal to the amount of the rent reserved in this
Lease, for such period or periods. If the Premises are relet and a sufficient
sum shall not be realized from such reletting after paying all of the costs and
expenses of such repairs, changes, alterations and additions and the expense of
such reletting and the collection of the rent accruing therefrom, to
-24-
satisfy the rent above provided to be paid, Tenant shall satisfy and pay any
such deficiency upon demand therefor from time to time; and Tenant agrees that
Landlord may file suit to recover any sums falling due under the terms of this
paragraph from time to time and that any suit or recovery of any portion due
Landlord hereunder shall be no defense to any subsequent action brought for any
amount not theretofore reduced to judgment in favor of Landlord.
(c) In addition to all other rights and remedies of Landlord hereunder or
at law, in the event of a default by Tenant which continues beyond any cure
period provided in this Article 15, Landlord shall be entitled to receive as
damages from Tenant (in addition to any other damages provided herein) an amount
equal to (i) the then unamortized Landlord's Contribution made available to
Tenant pursuant to Article 34 hereof, assuming amortization of such amount over
a period of 180 calendar months, commencing on the first full Lease Year, at a
level monthly payment with an interest factor equal to /***/ percent (***%) per
annum, plus (ii) any then unamortized Take-Down Improvement Allowance made
available to Tenant pursuant to Article 36 hereof, assuming amortization of such
amount over a period commencing on the date of disbursement thereof and ending
on the expiration of the initial Term hereof at a level monthly payment with an
interest factor equal to *** percent (***%) per annum; provided, however, in no
event shall the provisions of this subparagraph (c) permit Landlord to receive a
double recovery of any rent actually paid by Tenant.
16. SURRENDER OF POSSESSION. On or before the date this Lease and the
Term hereby created terminate, or on or before the date Tenant's right of
possession terminates, whether by lapse of time or at the option of Landlord,
Tenant will: (a) remove those alterations, improvements and additions installed
by Tenant which Tenant is required to remove pursuant to Article 8 hereof and
restore the Tenant Responsible Premises to the same condition they were in upon
completion of Tenant's Work (except for reasonable wear and tear and as
otherwise provided in Article 25 of this Lease) and repair any damage to the
Tenant Responsible Premises or the Building caused by Tenant's removal of such
alterations, improvements or additions; (b) remove from the Premises and the
Building all of Tenant's trade fixtures and personal property; and (c) surrender
possession of the Premises to Landlord. If Tenant shall fail or refuse to
restore the Premises to the above described condition on or before the above-
specified date, Landlord may upon notice to Tenant enter into and upon the
Premises and put the Premises in such condition, and recover from Tenant
Landlord's cost of so doing. If Tenant shall fail or refuse to comply with
Tenant's duty to remove all trade fixtures and personal property from the
Premises and the Building on or before the above-specified date, the parties
hereto agree and stipulate that Landlord may, as its election: (1) treat such
failure or refusal as an offer by Tenant to transfer title to such trade
fixtures and personal property to Landlord, in which event title hereto shall
thereupon pass under this Lease as a xxxx of sale to and vest in Landlord
absolutely without any cost either by set-off, credit allowance or otherwise,
and Landlord may remove, sell, retain,
______________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-25-
donate, destroy, store, discard, or otherwise dispose of all or any part of said
personal property in any manner that Landlord shall choose; or (2) treat such
failure or refusal as conclusive evidence, on which Landlord and any third party
shall be entitled absolutely to rely and act, that Tenant has forever abandoned
such trade fixtures and personal property, and without accepting title thereto,
Landlord may at Tenant's expense enter into and upon the Premises and remove,
sell, retain, donate, destroy, store, discard or otherwise dispose of all or any
part thereof in any manner that Landlord shall choose without incurring
liability to Tenant or to any other person. In no event shall Landlord ever
become or accept or be charged with the duties of a bailee (either voluntary or
involuntary) of any personal property or trade fixtures; and the failure of
Tenant to remove all personal property and trade fixtures from the Premises and
the Building shall forever bar Tenant from bringing any action or from asserting
any liability against Landlord with respect to any such property which Tenant
fails to remove. If Tenant shall fail or refuse to surrender possession of the
Premises to Landlord on or before the above-specified date, Landlord may
forthwith re-enter the Premises and repossess itself thereof as of its former
state and remove all persons and effects therefrom, using such force as may be
necessary, without being guilty of any manner of trespass or forcible entry or
detainer.
17. HOLDOVER. Tenant will pay to Landlord an amount equal to /***/
percent (***%) the sum of the annual Base Rent plus /***/ percent (***%) of rent
adjustments for all the time Tenant shall retain possession of the Premises or
any part thereof after the termination of this Lease, whether by lapse of time
or otherwise, and, in addition thereto, all damages, whether direct or
consequential, sustained by Landlord on account of or as result of any such
holdover extending for more than twenty (20) days, but the provisions of this
Article shall not operate as a waiver by the Landlord of any right of re-entry
hereinbefore provided. Landlord agrees that, upon receipt of written request
from Tenant during the last thirty (30) days of the Term, Landlord will use
reasonable efforts to estimate the nature and scope of the damages that Landlord
would anticipate incurring if Tenant failed to vacate the Premises promptly upon
expiration of the Term of this Lease. At the option of Landlord, expressed in a
written notice to Tenant and not otherwise, any holding over by Tenant extending
more than twenty (20) days beyond the termination of this Lease for any portion
of a calendar month shall constitute a holding over and extension of this Lease
for such entire calendar month at a rental equal to the greater of the holdover
rental specified above in this Article 17 or the then prevailing rental rates
for similar space in the Building.
18. [Intentionally Omitted.]
19. NOTICE. In every case where it shall be necessary or desirable for
Tenant to give or serve upon Landlord any notice or demand. Tenant shall give
the requisite notice either (a) by delivering or causing to be delivered to
Landlord a written or printed copy of such notice or
_______________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-26-
demand, or (b) by sending a written or printed copy of such notice or demand by
either (i) Federal. Express or similar commercial overnight delivery service, or
(ii) certified or registered mail-, return receipt requested, postage prepaid,
addressed to Landlord at:
Merchandise Mart Properties, Inc.
000 Xxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
with a copy to:
Merchandise Mart Properties, Inc.
000 Xxx Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Legal Department
In every case where under the provisions of this Lease it shall be
necessary or desirable for Landlord to give or serve upon Tenant any notice or
demand it shall be sufficient either (a) to deliver or cause to be delivered to
Tenant a written or printed copy of such notice or demand, or (b) to send a
written or printed copy of said notice or demand by either (i) Federal Express
or similar commercial overnight delivery service, or (ii) certified or
registered mail, return receipt requested, postage prepaid, addressed to Tenant,
at:
21st Century Cable TV, Inc. 000 X
Xxxxxxx Xxxxxx 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Manager of Purchasing and Contracts
with a copy of default notices to:
Xxxx, Gerber & Xxxxxxxxx
Xxx Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Prior to commencement of the Term hereof and Tenant's occupancy of the
Temporary Source (see Article 39), any notices which may be necessary or
desirable for Landlord to give or serve upon Tenant shall be addressed to Tenant
at 000 Xxxxx Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, and
addressed to the attention of those corporate titles set forth above.
-27-
Any such notice served upon Landlord or Tenant in accordance with the
foregoing shall be deemed served effective upon receipt or upon refusal to
accept delivery. Landlord and Tenant may designate alternative or additional
addressees and addresses for notice by delivery of notice in accordance with the
provisions of this Article 19; provided that the number of addressees/addresses
to which notices to either party must be sent shall not exceed three (3).
20. NO SOLICITATION. Tenant shall not by itself or through any officer,
salesman, employee, agent, advertisement or otherwise solicit business in the
vestibules, entrances, elevator lobbies, corridors, hallways, elevators or
other common areas of the Building.
21. CONDEMNATION. If the whole or any substantial part of the Premises
or Building shall be taken or condemned by any competent authority for any
public use or purpose or if any adjacent property or street shall be condemned
or improved in such manner as to require the use of a substantial part of the
Premises or the Building, the Term of this Lease, at the option of Landlord,
shall end upon -the- date when the possession of the part so taken shall be
required for such use or purpose and Landlord shall be entitled to receive the
entire award, if any, without any payment to Tenant. Current rent shall be
apportioned as of the date of such termination. Notwithstanding the foregoing,
Tenant may, to the extent permitted by law, seek a separate award in a separate
proceeding for the value of Tenant Responsible Premises and its trade fixtures
and other personal property and moving and relocation expenses, so long as
Tenant does not materially interfere with the proceedings being conducted by
Landlord or otherwise reduce the award to which Landlord is entitled.
22. NONWAIVER. No waiver of any condition expressed in this Lease shall
be implied by any neglect of Landlord or Tenant to enforce any remedy on
account of the violation of such condition if such violation be continued or
repeated subsequently, and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. The receipt and acceptance by Landlord or Tenant
of a sum of money which is less than the amount due and owing shall not,
regardless of any endorsements or instructions to the contrary, constitute an
accord and satisfaction. No receipt of moneys by Landlord from Tenant after
the termination in any way of the Term hereof or of Tenant's right of
possession hereunder or after the giving of any notice shall, reinstate,
continue or extend the Term or affect any notice given to Tenant prior to the
receipt of such moneys, it being agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises
Landlord may receive and collect any rent due, and the payment of such rent
shall not waive or affect such notice, suit or judgment.
23. WAIVER OF NOTICE. To the extent that the notice provided in Article
15 hereof satisfies the requirements, if any, for service of notice or demand
prescribed by any
-28-
applicable statute or law, Tenant hereby expressly waives the service of any
other notice of intention to terminate this Lease or to re-enter the Premises
and waives the service of any demand for payment of rent or for possession and
waives the service of any other notice or demand prescribed by any statute or
other law.
24. FIRE OR CASUALTY. If the Premises or any part of the Building shall be
damaged by fire or other casualty and if such damage does not render all or a
substantial portion of the Premises or the 'Building untenantable (and for
purposes of this Article 24, the Premises shall be deemed untenantable if there
is (i) a substantial impairment of the reasonable means of access thereto or
(ii) substantial impairment of reasonable means of access to the Antennae on the
Roof or damage to a substantial portion of the Antennae on the Roof which
materially adversely impairs Tenant Is ability to conduct business in the
Premises) , then Landlord shall proceed to repair and restore the Building
Systems (including the Building Systems in the Premises) and the reasonable
means of access to the Premises with reasonable promptness, given the nature of
the damage to be repaired, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's control. If any such
damage renders all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, with reasonable promptness after the occurrence of
such damage, but in all events within forty-five (45) days after such damage
occurred, obtain, at no cost to Tenant, an opinion of an independent architect,
engineer or other qualified licensed professional, estimating the length of time
will be required to complete the repair and restoration of the Building Systems
(including the reasonable means of access to the Premises) and the Tenant
Responsible Premises (stating separate estimated time periods for the repair and
restoration of the Building Systems, including those in the Premises, and the
repair and restoration of the Tenant Responsible Premises) and by written notice
advise Tenant of such estimate (such notice being referred to herein as the
"Repair Estimate Notice"). If it is so estimated that the amount of time
required to substantially complete such repair and restoration of both the
Building Systems (including those in the Premises and the reasonable means of
access to the Premises) and the Tenant Responsible Premises will exceed one
hundred eighty (180) days, then either Landlord or Tenant (but as to Tenant,
only if all or a substantial portion of the Premises are rendered untenantable)
shall have the right to terminate this Lease as of the date of such damage upon
giving notice to the other at any time within twenty (20) days after Landlord
delivers the Repair Estimate Notice to Tenant (it being understood that Landlord
may, if it elects to do so, also give such notice of termination together with
the Repair Estimate Notice). Notwithstanding the foregoing, if such damage
renders untenantable a substantial portion of the Building but does not render
untenantable a substantial portion of the Premises, Landlord shall not have the
right to terminate this Lease on account of such damage, unless Landlord elects
generally to terminate all leases in the Building which Landlord is entitled to
terminate on account of such damage or Landlord elects to demolish all or a
substantial portion of the Building, and any such termination of this Lease
shall be effective as of a date, specified by Landlord, not less than sixty (60)
days after the delivery of such termination notice.
-29-
Unless this Lease is terminated as provided in the preceding paragraph, Landlord
shall proceed with reasonable promptness to repair and restore the Building
Systems, including Building Systems in the Premises and the reasonable means of
access to the Premises, subject to reasonable delays for insurance adjustments
and delays caused by matters beyond Landlord's reasonable control, and also
subject to zoning laws and applicable building codes then in effect. when the
repair and restoration of the Building Systems is completed to a degree making
the Premises suitably available for Tenant's repair and restoration of the
Tenant Responsible Premises, Tenant shall proceed with reasonable promptness to
repair and restore the Tenant Responsible Premises, subject to reasonable delays
for insurance adjustments and delays caused by matters beyond Tenant's
reasonable control and applicable building codes then in effect. Landlord shall
have no liability to Tenant, and Tenant shall not be entitled to terminate this
Lease (except as hereinafter provided) if such repair and restoration of the
Building Systems is not in fact completed within the time period specified in
the Repair Estimate Notice. If the Building Systems are not repaired and
restored by the number of days equal to one hundred fifty percent (150%.) of the
number of days specified in the Repair Estimate Notice for completion of the
repair and restoration of the Building Systems, measured from the date of
delivery of the Repair Estimate Notice (provided, however, such number of days
may be extended up to an additional one hundred twenty (120) days due to Force
Majeure events), then either party (but as to Landlord, only if Landlord has
diligently commenced and pursued such repair and restoration) may terminate this
Lease, effective as of the date of such fire or other casualty, by written
notice to the other party delivered not later than thirty (30) days after the
expiration of said period but prior to substantial completion of such repair or
restoration.
Notwithstanding anything to the contrary herein set forth, (a) Landlord
shall have obligation, to repair or restore any of the Tenant Responsible
Premises or Tenant's office furniture, trade fixtures, office equipment,
merchandise or any other items of Tenant's property in the Premises or the
Building; (b) if any such damage rendering all or a substantial portion of the
Premises or the Building untenantable shall occur during the last one (1) year
of the Term and provided Tenant has not delivered a binding notice under Article
37 to extend the Term of this Lease beyond the then current Term (or Extended
Term), each of Landlord and Tenant shall have the option to terminate this
Lease by giving written notice to the other within sixty (60) days after the
date such damage occurred, and if such option is so exercised, this Lease shall
terminate as of a date not less than sixty (60) days after the delivery of such
notice; and (c) Landlord shall have the right -to terminate this Lease by giving
written notice to Tenant within sixty (60) days of the date such damage occurred
if Landlord elects to terminate all tenant leases in the Building which Landlord
is entitled to terminate on account of such damage or to demolish the Building,
and if such right is so exercised, this Lease shall terminate as of a date,
specified by Landlord, not less than sixty (60) days after the delivery of such
notice.
In the event any such fire or casualty damage renders the Premises or any
part thereof untenantable and if this Lease shall not be terminated pursuant to
the foregoing provisions of,
-30-
this Article 24 by reason of such damage, then all rent (including, without
limitation, Base Rent and rent adjustments) payable pursuant to this Lease with
respect to the Premises or such portion so rendered untenantable shall xxxxx
during the period beginning with the date of such damage and ending with the
date that Tenant substantially completes the repair and restoration of the
Tenant Responsible Premises (or such portion rendered untenantable) or commences
substantial use of the Premises (or such portion rendered untenantable) for the
conduct of its business, whichever is earlier, but in all events not later than
the number of days equal to one hundred fifty percent (150%) of the number of
days specified in the Repair Estimate Notice for completion of the repair and
restoration of the Tenant Responsible Premises, measured from the date that the
Building Systems are repaired and restored to a degree making the Premises
suitably available for Tenant to commence and continue without unreasonable
interruption Tenant's repair and restoration of the Tenant Responsible Premises,
provided, however, such number of days may be extended up to an additional one
hundred-twenty (120) days due to Force Majeure events. Such abatement shall be
in an amount bearing the same ratio to the total amount of all rent (including
rent adjustments) payable pursuant to this Lease for such period as the portion
of the Premises rendered and remaining untenantable due to such fire or casualty
from time to time bears to the entire Premises. In the event of termination of
this Lease pursuant to this Article 24, all rent (including, without limitation,
Base Rent and rent adjustments) payable pursuant to this Lease (to the extent
not abated pursuant to the foregoing) shall be apportioned on a per diem basis
and be paid to the date of termination.
25. INSURANCE. In consideration of the leasing of the Premises at the
rental stated in Articles 3 and 4, Landlord and Tenant agree to provide
insurance and allocate the risk of loss as follows:
Tenant, at its sole cost and expense, agrees to purchase and keep in force
and effect during the Term hereof (a) Property Insurance on the Tenant
Responsible Premises and Tenant's contents, furniture, fixtures, equipment and
other personal property located in the Building, covering the interests of
Landlord and Tenant as to damage or other loss caused by those perils
customarily covered by an all risk policy, and in any event including without
limitation, fire or other casualty, vandalism, theft, sprinkler leakage, water
damage (however caused), explosion, malfunction and failures of heating and
cooling or similar apparatus, perils covered by extended coverage, and other
similar perils in amounts not less than the full insurable replacement value of
such property with a deductible amount in a commercially reasonable amount,
taking into account the financial condition of Tenant, and (b) broad form
Commercial General Liability Insurance, including blanket contractual liability,
host liquor liability (if alcoholic liquor within the meaning of the Illinois
Liquor Control Act will be given to guests), personal injury liability, and
broad form property damage liability coverages, with limits of not less than
/***/ for personal injury, bodily injury, sickness, disease or death or for
damage or injury
__________________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-31-
to or destruction of property (including the loss of use thereof) for any one
occurrence. Tenant's Property Insurance policy shall provide that it is specific
and not contributory and shall contain a clause pursuant to which the insurance
carrier waives all rights of subrogation against Landlord. and Landlord's-
beneficiary, and its partners, trustees, officers, directors, agents and
employees with respect to losses payable under such policy; and Tenant agrees to
indemnify Landlord and Landlord's beneficiary, and its partners, trustees,
officers, directors, agents and employees against all liabilities, damages,
costs, claims, obligations and expenses (including attorneys, fees) arising from
any failure of Tenant's Property Insurance policy to contain such a waiver of
subrogation. If the potential for host liquor liability shall arise due to
Tenant's activities pursuant to Article 2 of this Lease, the Tenant shall
procure and maintain a policy, or endorsement for, liability insurance before
undertaking such activities. Tenant's Commercial General Liability Policy and,
if required, its host liquor liability policy or endorsement, shall each name
Landlord, its beneficiaries, and their respective officers, directors,
beneficiaries, partners, agents, and employees as additional insureds. All such
insurance shall be provided by commercial insurers of recognized responsibility.
Landlord agrees to purchase and keep in force and effect insurance on the
Building and Building Systems against fire and such other risks as may be
included in extended coverage insurance from time to time available on a
replacement value basis in an amount sufficient to prevent Landlord from
becoming a coinsurer under the terms of the applicable policies and shall
contain a clause pursuant to which the insurance carriers waive all rights of
subrogation against the Tenant, its agents, officers, directors and employees,
with respect to losses payable under such policies.
Tenant shall, from time to time upon request from Landlord but not more
frequently than once each calendar year (except in the case of any change in
coverage or any change in insurer, in any of which events Tenant agrees to
provide Landlord written notice of such change within thirty (30) days of its
occurrence), deliver to Landlord certificates of insurance evidencing the
insurance coverage required by this Article 25, with a notation on such
certificates as to the waiver of subrogation provided above.
By this Article, Landlord and Tenant intend that the risk of loss or damage
to property (including personal property and equipment used in connection with
the Building and also including any automobile or other vehicles from time to
time parked in any parking spaces which Landlord may from time to time lease to
Tenant), as described above be borne by responsible insurance carriers to the
'extent above provided and' Landlord and Tenant hereby release each other and
agree to look solely to, and seek recovery only from, their respective insurance
carriers in the event of a loss of a type described above to the extent that
such coverage is agreed to be provided hereunder. For this purpose any
applicable deductible amount shall be treated as though it were recoverable
under such policies. Landlord and Tenant agree that applicable portions of all
moneys collected from such insurance shall be used toward full compliance with
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the obligations of Landlord and Tenant under this Lease in connection with
damage resulting from fire or other casualty.
26. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights, exercisable without notice, except as otherwise stated, and
without liability to Tenant for damages or injury to property, person or
business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession or giving rise to any claim for set-
off or abatement except as otherwise expressly provided herein:
(A) To change the Building's name or street address. Landlord agrees to
give Tenant one hundred eighty (180) days prior notice of such change of street
address (except where Landlord is required to change the street address by any
governmental authority).
(B) To install, affix and maintain any and all signs on the exterior and
interior of the Building.
(C) To designate and approve, prior to installation by Tenant, all types
of window shades, blinds, drapes, awnings, window ventilators and other similar
equipment, and to reasonably control all internal lighting that may be visible
from the exterior of the Building so as to promote the uniformity or harmony of
appearance of the exterior of the Building.
(D) Except as provided otherwise in this Lease, to reserve to Landlord the
exclusive right to designate, limit, restrict and control any business or any
service in or to the Building.
(E) To grant to anyone the exclusive right to conduct any business or
render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein or
increase the costs therefor to Tenant, and the rates charged by any such vendor
shall be competitive market rates.
(F) To impose reasonable rules and regulations regarding the placing of
vending or dispensing machines of any kind in or about the Premises without the
prior written permission of Landlord.
(G) To show the Premises to prospective tenants at reasonable hours by
appointment during the last nine (9) months of the Term, as it may be extended.
(H) To reasonably approve the weight, size and location of safes and other
heavy equipment and bulky articles in and about the Premises and the Building
(so as not to exceed the legal live load), and to require all such items and
furniture and similar items to be moved into and out of the Building and
Premises only at such times and in such manner as Landlord shall reasonably
direct in writing. Subject to the provisions of Articles 11 and 25, any damages
done
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to the Building or to other tenants in the Building by taking in or taking out
safes, furniture, and other articles or from overloading the floor in any way
shall be paid by Tenant. Furniture, boxes, merchandise or other bulky articles
shall be transported within the Building only upon or by vehicles equipped with
rubber tires and shall be carried only in a freight elevator when such service
is available. Movements of Tenant's property into or out of the Building and
within the Building are entirely at the risk and responsibility of Tenant and
Landlord reserves the right to require registration before allowing any such
property to be moved into or out of the Building. Landlord reserves the right to
reasonably regulate the movement of, and to inspect, all property and packages
brought into or out of the Building to enforce compliance with the terms of this
Lease and to reasonably regulate delivery and service of supplies and the usage
of loading docks, receiving areas and freight elevators. Landlord shall not
discriminate against Tenant in its right to use such loading docks, receiving
areas and freight elevators in conjunction with other tenants.
(I) To have access for Landlord to any mail chutes located on the Premises
according to the rules of the United States Postal Service.
(J) To close the Building after regular working hours and on Saturdays,
Sundays and holidays established by Landlord (subject to the limitations set
forth herein) from time to time subject, however, to Tenant's right to
admittance under such reasonable regulations as Landlord may prescribe from time
to time, which may include, by way of example but not of limitation, that
persons entering or leaving the Building identify themselves to a security
officer by registration or otherwise and that said persons comply with
Landlord's regulations concerning their and leaving the Building (Landlord
agrees to furnish to Tenant prior notice in the case of any scheduled Building
shutdown when Tenant shall not be able to gain access to the Premises provided
such notice shall not limit or affect any rights granted to Tenant in Article 9
hereof).
(K) To change the arrangement, configuration, size or location of
entrances, passageways, doors and doorways, corridors, stairs, toilets,
elevators and escalators and other public service portions of the Building and
the Property not contained within the Premises or any part thereof, so long as
Landlord uses reasonable efforts to give Tenant prior notice in the event of any
changes to common areas of the Building directly and materially serving the
Premises or the Antennae on the Roof and so long as any such change does not
materially and adversely affect Tenant's ability to conduct its business in the
Premises or Tenant's access to the Premises or access to the Antennae on the
Roof.
(L) To change the character or use of any part of the Building or the
Property.
(M) Subject to the rights granted Tenant in Article 40 hereof, to use for
itself the roof, the exterior portions of the Premises and such areas within the
Premises (so long as the useable area of the Premises is not materially reduced)
required for structural columns and their enclosures and the installation of
utility lines, Building systems and other installations required
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to service the Building, the Property or tenants or occupants thereof and to
maintain and repair same, no rights being hereby conferred upon Tenant, and,
unless otherwise specifically provided herein, to exercise for itself any rights
to the land and improvements below the floor level of the Premises or the air
.rights above the Premises and to the land and improvements located on and
within the public areas. Neither Tenant nor its employees, invitees, guests and
agents shall, without obtaining in each instance the prior written consent of
Landlord (which consent shall not be unreasonably withheld or delayed, and shall
be conditioned upon such requirements as Landlord deems appropriate) (1) go
above or through suspended ceilings, (2) remove any ceiling tiles or affix
anything thereto, remove anything therefrom or cut into or alter the same in any
way, (3) enter fan rooms or other mechanical spaces, or (4) open doors or remove
panels providing access to utility lines, Building systems or other
installations required to service tenants.
27. RULES AND REGULATIONS. Subject to the rights expressly granted to
Tenant elsewhere in this Lease, Tenant agrees to observe the reservations to
Landlord in Article 26 hereof and agrees to comply and to use reasonable
business efforts to have its employees, agents, and servants to observe and
comply, at all times, with the following rules and regulations and with such
reasonable modifications thereof and additions thereto as Landlord may make for
the Building (so long as Landlord has delivered to Tenant prior notice of any
such modifications and additions and that same are reasonable), and that failure
to observe and comply with such reservations, rules and regulations, after
written notice of such failure and an opportunity to cure as provided in Section
15 hereof, shall constitute a default under this Lease:
(A) No sign, picture, advertisement or notice, typewritten or otherwise,
shall be displayed, inscribed, painted or affixed on any part of the outside or
inside of the Building, or on or about the Premises in any location visible from
outside the Premises, except on glass of the doors and windows of the Premises
and on the directory board of the Building and then only of such nature, color,
size, style and material as shall be first approved by Landlord in writing,
which approval shall not be unreasonably withheld.
(B) Tenant shall not, without Landlord's prior written consent (which
consent shall not be unreasonably withheld), install or operate any heating
device or air conditioning equipment, steam or internal combustion engine,
boiler, stove, machinery, or mechanical devices upon the Premises (other than as
set forth in the final plans for Tenant's Work described in Article 35) or carry
on any mechanical or manufacturing business thereon, or use or permit to be
brought into the Building flammable fluids such as gasoline, kerosene, benzene,
or naphtha (except in such small quantities as customarily used by office
tenants for general office use in compliance with applicable legal requirements)
or use any illumination other than electric lights. All equipment, fixtures,
lamps and bulbs shall be compatible with, and not exceed the capacity of, the
Building's electrical system. No explosives, firearms, radioactive or toxic or
hazardous
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substances or materials, or other articles deemed extra hazardous to life, limb
or property shall be brought into the Building or the Premises.
(C) Any person or persons employed by Tenant to do janitor work or care for
the Premises shall be subject to and under the reasonable control and direction
of the building manager (in such manner and to such extent as generally
applicable to persons employed by Building tenants) while in the Building and
outside of the Premises, but not as agent of Landlord. Tenant shall be
responsible, at its sole cost and expense, for the removal of refuse and rubbish
from the Premises to the designated collection areas in the Building. Such
refuse and rubbish shall be stored and transported in containers reasonably
acceptable to Landlord and shall be deposited in locations acceptable to
Landlord and consistent with policies established by Landlord for the Building
generally.
(D) After completion of the Shell and Core Work, Tenant shall at its
expense provide artificial light for employees of Landlord while doing work and
making repairs or alterations in the Premises.
(E) The location and manner of installation of all telegraph, telephone,
communications, signal and electric connections, cabling and wiring (other than
connections, wiring or cabling located exclusively within the Premises and not
affecting the Building structure, Building Systems, common areas or other
tenants' premises) shall be subject to the reasonable approval of Landlord and
any work in connection therewith shall be subject to the direction of Landlord.
Tenant shall give Landlord reasonable prior notice of the installation of all
such telegraph, telephone, communication, signal and electric connections,
cabling and wiring whether or not Landlord's approval thereto and direction
thereof is required. Landlord reserves the right to control the entity or
entities providing telephone wire installation, repair and maintenance in the
Building to the Building telephone closets on the various floors and to
reasonably restrict and control access to such Building telephone closets.
Tenant may select the vendor or vendors and service providers with respect to
the installation, repair and maintenance of other communication and signal
cabling and wiring subject to the general direction of Landlord and such
reasonable rules and regulations as may be established by Landlord for the
protection of the Building and its efficient, high-quality and harmonious
operation.
(F) Tenant must list all furniture and fixtures to be taken from the
Building at any time and from time to time prior to the expiration of the Term
hereof upon a form furnished by Landlord. Such list shall be presented at the
office of the Building for registration (or if closed, to the security officer)
before acceptance by the security officer or elevator operator.
(G) Tenant, its licensees, agents, servants, and employees and guests shall
not encumber or obstruct sidewalks, entrances, passages, courts, corridors,
vestibules, halls, elevators, stairways or other common areas in or about the
Building.
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(H) No bicycle or other vehicle and no animal (except seeing eye dogs)
shall be allowed in the showrooms, offices, halls, corridors or any other parts
of the Building.
(I) Tenant shall not allow anything to be placed against or near the glass
in the partitions between the Premises and the halls or corridors of the
Building which shall diminish the light in the halls or corridors.
(J) Tenant shall not allow anything to be placed on the outer window ledges
of the Premises, nor shall anything be thrown by Tenant or its employees out of
the windows of the Building. Tenant shall keep all windows closed.
(K) No additional locks shall be placed upon any entry doors to the
Premises and no locks shall be changed without the prior written consent of
Landlord, which shall not be unreasonably withheld. Upon termination of this
Lease, Tenant shall surrender all keys and key. cards of the Premises and of the
Building and give to Landlord the explanation of the combination of all locks on
safes or vault doors in the Premises.
(L) The building manager shall at all times keep a pass key and be allowed
admittance to the Premises to cover any emergency, fire or other casualty that
may arise and in other appropriate instances. Landlord and Landlord's agents
shall have the right to enter the Premises at all reasonable hours upon prior
notice (except in case of an emergency) to examine the same.
(M) Unless otherwise advised by Landlord, neither Tenant nor its employees
shall undertake to regulate the radiator controls or thermostats. Tenant shall
report to the office of the Building whenever such thermostats or radiator
controls are not working properly or satisfactorily.
(N) If Tenant desires shades or venetian blinds for outside windows, must
be furnished and installed at the expense of must be of Tenant, and must of such
type, color and material as may reasonably be prescribed by Landlord.
(0) Tenant assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry into the Premises closed and secured.
(P) Tenant shall not peddle, canvass, solicit or distribute handbills or
flyers on or about the Property except as specifically authorized by Landlord.
(Q) Tenant shall not sell food of any kind or xxxx in the Building, unless
in coffee-makers or microwave or similar ovens installed and maintained by
Tenant for use by its
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employees and invitees, and subject to any reasonable applicable Building rules
and regulations and all applicable laws. Tenant may serve complimentary foods to
its guests provided that it shall first comply with all applicable laws,
ordinances, codes and regulations.
(R) Water in the Premises shall not be wasted by Tenant or its employees by
tying or wedging back the faucets of the washbowls or otherwise.
(S) Tenant shall use neither the name of the Building (except as the
address of its business) nor pictures of the Building in advertising or other
publicity or for any other purpose without Landlord's prior written consent.
(T) In the event Tenant designates non-smoking areas in the Premises,
Tenant shall also designate sufficient smoking areas within the Premises for its
employees; and Tenant shall use all reasonable efforts, in dealing with its
employees, to cooperate with and enforce Landlord's policies prohibiting the use
of the public areas of the Building as smoking areas.
Landlord reserves the right upon prior notice to Tenant to make such other
and further reasonable rules and regulations as in Landlord's reasonable
judgment may from time to time be needed for the safety, care and cleanliness of
the Premises and the Building and for the preservation of good order therein so
long as such further rules and regulations do not diminish any rights heretofore
expressly granted to Tenant in this Lease. Landlord agrees that all such rules
and regulations shall be enforced in a manner that does not singularly target
Tenant and no other tenants similarly situated or engaged in conduct similar to
that of Tenant.
28. MISCELLANEOUS. Tenant and Landlord further covenant with each other
that:
(A) All rights and remedies of Landlord and Tenant under this Lease shall
be cumulative, and none shall exclude any other rights and remedies allowed by
law.
(B) The word "Tenant" wherever used herein shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply either to
corporations or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed. If there is more than one tenant, all
obligations and liabilities hereunder imposed upon Tenant shall be joint and
several.
(C) This Lease and the rights of Tenant hereunder shall be and are subject
and subordinate at all times to any ground leases or master leases and to the
lien of any mortgages or deeds of trust now or hereafter in force against the
Property or the Building, or both of them, and to all advances made or hereafter
to be made upon the security thereof, and to all renewals, modifications,
amendments, consolidations, replacements and extensions thereof. Any
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mortgagee or beneficiary under a deed of trust, however, may elect to have this
Lease be superior to its mortgage or deed of trust. This provision is self-
operative and no further instrument of subordination or priority shall be
required. In confirmation of such subordination or priority Tenant shall
promptly execute such further instruments as may be reasonably requested by
Landlord and in the event Tenant fails to do so within twenty (20) days after
demand in writing by certified or registered mail, Landlord shall deliver to
Tenant a further written request and if Tenant fails to execute and deliver such
instruments within five (5) business days after receipt of such further notice
from Landlord, such failure shall constitute a material default hereunder and
shall entitle Landlord to exercise the remedies provided by Article 15 hereof
(without any notice otherwise required by said Article 15). Notwithstanding the
foregoing, this Lease and the rights of Tenant hereunder shall not be subject or
subordinate to the lien of any mortgage or deed of trust imposed upon the
Property after the date hereof unless, as a condition thereto, such mortgagee or
holder shall deliver to Tenant a non-disturbance agreement in form and substance
reasonably satisfactory to Tenant.
(D) Each of the provisions of this Lease shall extend to and shall, as the
case may require, bind or inure to the benefit of, not only Landlord and Tenant,
but also their respective heirs, legal representatives, successors and assigns,
provided, this clause shall not permit any assignment contrary to the provisions
of Article 12 hereof.
(E) All of the representations and obligations of Landlord and Tenant are
contained herein and no modification, waiver or amendment of this Lease or any
of its conditions or provisions shall be binding upon Landlord unless in writing
signed by a duly authorized officer of Landlord's agent or upon Tenant unless in
writing and signed by a duly authorized officer of Tenant.
(F) All amounts due and payable from Tenant under this Lease or under any
work order or other agreement relating to the Premises shall be considered as
rent and, if unpaid when due, shall bear interest from such date until paid at
the maximum legal rate of interest available, provided such rate of interest
shall not exceed two percent (2%) per annum plus the Prime Rate as announced by
the Northern Trust Bank in Chicago, Illinois and in effect on the first day of
each calendar quarter, determined and subject to change as of the first day of
each calendar quarter.
(G) Submission of this instrument for examination shall not bind Landlord
or Tenant in any manner, and no lease or obligation on Landlord or Tenant shall
arise until this instrument is signed and delivered by Landlord and Tenant.
(H) Except as set forth in Article 40, no rights to light or air over any
property, whether belonging to Landlord or any other persons, are granted to
Tenant by this Lease.
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(I) The laws of the State of Illinois shall govern validity, performance
and enforcement of this Lease. The invalidity or unenforceability of any
provision of this Lease shall not affect or impair any other provision.
(J) Landlord's title is and always shall be paramount to the title of
Tenant. Nothing herein contained shall empower Tenant to commit or engage in
any act which can, shall or may encumber the title of Landlord.
(K) In case Landlord or any successor owner of the Property or the Building
shall convey or otherwise dispose of any portion thereof to another person, such
other person shall in its own name thereupon be and become Landlord hereunder
and shall assume fully in writing and be liable upon all liabilities and
obligations of this Lease to be performed by Landlord which first arise after
the date of conveyance, and such original Landlord or successor owner shall,
from and after the date of conveyance, be free of all liabilities and
obligations not then incurred.
(L) Neither this Lease, nor any memorandum, affidavit or other writing with
respect thereto, shall be recorded by Tenant or by anyone acting through, under
or on behalf of Tenant, and the recording thereof in violation of this provision
shall constitute a material breach of this Lease.
(M) Nothing contained in this Lease. shall be deemed or construed by the
parties hereto or by any third party to create the relationship of principal and
agent, partnership, joint venture or any association or relationship between
Landlord and Tenant other than that of landlord and tenant.
(N) Landlord shall have the right to apply payments received from Tenant
pursuant to this Lease (regardless of Tenant's designation of such payments) to
satisfy any obligations of Tenant hereunder, in such order and amounts as
Landlord in its reasonable discretion may elect.
(O) All indemnities, covenants and agreements of Landlord and Tenant,
respectively, contained herein which inure to the benefit of the other party
shall be construed to inure also to the benefit of the other party's officers,
directors, beneficiaries, partners, agents and employees.
(P) Unless otherwise notified in writing by Landlord, Tenant may rely upon
notices and directions from officers of Merchandise Mart Properties, Inc.,
Landlord's beneficiary's management agent for the Building and Property, as the
authorized action of Landlord.
29. ATTORNMENT. Upon request of the holder of any note secured by a
mortgage or deed of trust on the Building or Property, Tenant will agree in
writing that no action taken by such holder to enforce said mortgage or deed of
trust shall terminate this Lease or invalidate or constitute a breach of any of
the provisions hereof and Tenant will attorn to such mortgagee or
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holder, or to any purchaser of the Property or Building, at any foreclosure sale
or sale in lieu of foreclosure, for the balance of the Term of this Lease and on
all other terms and conditions herein set forth, provided that, in the case of
any mortgage or trust deed imposed upon the Property after the date hereof, as a
condition to such attornment by Tenant, such mortgagee or holder shall deliver a
Non-Disturbance Agreement to Tenant.
30. ESTOPPEL CERTIFICATE. Tenant agrees that from time to time (but not
more frequently than once each year and also upon commencement of the Term and
in connection with any sale or refinancing of the Building and upon any request
by Landlord's lender) upon not less than thirty (30) days' prior request by
Landlord, Tenant or Tenant's duly authorized representative having knowledge of
the following facts shall deliver to Landlord a statement in writing certifying
(a) that this Lease is unmodified and in full force and effect (or if there have
been modifications that the Lease as modified is in full force and effect); (b)
the dates to which Base Rent, rent adjustments and other sums payable under this
Lease have been paid; (c) that, to the best of Tenant's knowledge, neither
Landlord nor Tenant is in default under any provision of this Lease, or, if in
default, the nature thereof in reasonable detail; (d) that, to the best of
Tenant's knowledge, there are no offsets or defenses to the payment of Base
Rent, additional rent or any other sums payable under this Lease, or if there
are any such offsets or defenses, specifying such in reasonable detail; and (e)
such other matters relating to the status of the Lease as may be reasonably
requested. In the event Tenant fails to deliver such statement to Landlord
within such 30-day period, such failure, if not cured within an additional 15-
day period after delivery of written notice thereof, shall constitute a material
default hereunder and exercise the remedies provided by Article 15 hereof
(without any notice otherwise required by said Article 15).
Landlord agrees that from time to time upon not less than thirty (30) days
prior written request by Tenant (but not more frequently than once each year) ,
and upon not less than thirty (30) days prior written request by any approved
assignee or subtenant in connection with the execution and delivery of any
assignment or sublease, Landlord or Landlord's duly authorized representative
having knowledge of the following facts shall deliver to Tenant a statement in
writing certifying (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications that the Lease, as modified, is in
full force and effect); (b) the dates to which the Base Rent, rent adjustments
and other sums payable under this Lease have been paid; (c) that to the best of
Landlord's knowledge, neither Landlord nor Tenant is in default under any
provision of this Lease, or, if in default, the nature thereof in reasonable
detail; and (d) such other matters relating to the status of the Lease as may be
reasonably requested.
31. BROKERS. Landlord and Tenant represent and warrant to the other that
neither it nor its officers or agents nor anyone acting on its behalf has dealt
with any real estate broker other than CB Commercial Real Estate Group, Inc. and
Chicago Realty Group, L.L.C. in the negotiation or making of this Lease, and
each agrees to indemnify and hold harmless the other
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from the claim or claims of any other broker or brokers claiming to have
interested Tenant in the Building or Premises or claiming to have caused Tenant
to enter into this Lease. Landlord shall be responsible for the commission or
other compensation of CB Commercial Real Estate Group, Inc. and Chicago Realty
Group, L.L.C. payable pursuant to separate agreements, if any, between Landlord
and such brokers.
32. SECURITY DEPOSIT. A. As security for the full and prompt performance
by Tenant of all of Tenant's obligations hereunder, Tenant has upon execution of
this Lease provided to Landlord and will during the Term of this Lease maintain
on deposit with Landlord, an unconditional irrevocable letter of credit in favor
of Merchandise Mart Properties, Inc., as agent of Landlord, from a bank approved
by Landlord, in the form attached hereto as Exhibit "E" (the "Letter of
Credit"), which provides for security in the initial amount of $***. Prior to
and as a condition to Landlord's obligation to pay any Take-Down Improvement
Allowance pursuant to Article 36 hereof, Tenant shall cause the amount of the
Letter of Credit to be increased by the amount of the Take-Down Improvement
Allowance to be paid by Landlord under Article 36 hereof. Commencing on the
first day of the Second Lease Year and on the first day of each successive Lease
Year thereafter, so long as Tenant is not in default-hereunder, the amount of
the Letter of Credit shall be automatically reduced for such Lease Year by the
amount necessary to result in the proportionate reduction (assuming a level
annual reduction) of the Letter of Credit over the remaining balance of the
Term. Tenant agrees that, in the event of any default by Tenant under this
Lease, Landlord shall have the right to draw down on the Letter of Credit in an
amount necessary to cure such default ("the Cure Amount") and Tenant agrees that
within ten (10) days after such initial draw of the Cure Amount Tenant shall
replenish the Cure Amount and shall cause the Letter of Credit to be amended in
a manner that it is restored to the full amount available thereunder prior to
such draw by Landlord. Tenant further agrees that, in addition to all of the
rights and remedies provided to Landlord pursuant to Article 15 hereof, whether
or not this Lease or Tenant's right to possession hereunder has been terminated,
(a) in the event Tenant is in default under any of the terms, covenants and
conditions of this Lease and Tenant has so failed to replenish the Letter of
Credit as aforesaid, or (b) in the event Tenant has filed (or there has been
filed against Tenant) a petition for bankruptcy protection or other protection
from its creditors under any applicable and available law, then Landlord may at
once and without notice to Tenant be entitled to draw down on the entire amount
of the Letter of Credit and apply such resulting sums toward (i) reimbursement
to Landlord for all of Landlord's then unamortized costs incurred in leasing to
Tenant the Premises demised by this Lease, including, without limitation (xx)
the then unamortized Landlord's Contribution made available to Tenant pursuant
to Article 34 hereof, assuming amortization of such amount over a period of 180
calendar months, commencing on the first full Lease Year, at a level monthly
payment with an interest factor equal to *** percent (***%) per annum, plus (yy)
any then unamortized Take-Down Improvement Allowance made available to Tenant
pursuant to Article 36 hereof, assuming amortization of
__________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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such amount over a period commencing on the date of disbursement thereof and
ending on the expiration of the initial Term hereof at a level monthly payment
with an interest factor equal to *** percent (***%) per annum, and (ii)
reimbursement to Landlord for any other damages suffered by Landlord as a result
of such default.
B. The foregoing Letter of Credit shall provide for an original expiration
date of June 30, 1998 and shall be automatically extended without amendment
(subject to the reductions described above) for additional successive one-year
periods from the original expiration date or any future expiration date thereof
for the Term of this Lease, unless sixty days prior to any such expiration date
the bank sends to Landlord by certified/registered mail, return receipt
requested or overnight courier written advice that the bank has elected not to
consider the Letter of Credit renewed for any such additional one-year period.
In the event such bank so advises Landlord that such Letter of Credit will not
be so renewed, Landlord shall promptly thereafter notify Tenant thereof in
writing, and Tenant shall obtain a substitute Letter of Credit from a bank
reasonably approved by Landlord meeting all of. the terms and conditions
described in Paragraph A. above, which substitute Letter of Credit ("Substitute
Letter of Credit") shall be reasonably satisfactory to Landlord and delivered to
Landlord no later than thirty (30) days prior to the expiration date of such
Letter of Credit then in effect. In that event Tenant fails to deliver such
Substitute Letter of Credit to Landlord at least thirty (30) days prior to the
expiration date of such Letter of Credit then in effect, Landlord shall in such
instance have the right without notice to Tenant to immediately draw down on the
entire amount of the Letter of Credit then available to Landlord; in such
instance Landlord shall retain such resulting sum as a cash security deposit
(which sum shall be reduced, so long as Tenant is not then in default hereunder,
to reflect the reduction schedule applicable if Landlord were holding the Letter
of Credit described in Paragraph A above) and Landlord shall have the right to
use such cash security to the same extent that Landlord would be entitled to
draw down on the Letter of Credit pursuant to the terms of Paragraph A. above.
Landlord shall not, unless required by law, keep the security deposit separate
from its general funds or pay interest thereon to Tenant. As between Landlord
and Tenant only, all draws under the Letter of Credit (or cash security,
deposit, as the case may be) and rights of Landlord to apply the proceeds of any
such draw or draft shall be subject to the provisions of this Lease, including
all applicable notice and cure periods provided for in Article 15 hereof, if
any, except that where this Article 32 states no notice to Tenant is required,
Landlord is not obligated to give any notice under Article 15 prior to taking
any action provided for in this Article 32.
33. PARKING.
Landlord agrees to cause to be made available to Tenant during the first
/***/ Lease years of the initial Term, /***/.
__________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-43-
So long as Tenant is not in default hereunder, /***/ shall be due by Tenant
for the Parking Spaces during the first /***/ Lease Years and thereafter during
the initial Term Tenant may lease the Parking Spaces at the then prevailing
rates in effect from time to time for parking spaces in such parking lot.
Landlord reserves the right to substitute a different garage or parking lot
parking spaces to satisfy its obligation to provide the foregoing Parking
Spaces, provided any such substitute garage or parking lot is the closest public
lot to the Building. With respect to the Parking Spaces, Tenant agrees to
comply with all regulations in effect from time to time at the facilities in
which the Parking Spaces are located. Tenant agrees that its use, and the use
by its agents, employees and invitees, of the Parking Spaces shall be entirely
at Tenant's own risk and responsibility; and Tenant further agrees that, subject
to the provisions of Article 25 hereof, Landlord, Landlord's beneficiaries,
LaSalle National Bank, as Trustee under Trust Agreement dated May 27, 1981,
known as Trust No. 104000 ("Mart Landlord"), Mart Landlord's beneficiaries, and
their respective officers, directors, partners, agents and employees shall not,
except as otherwise provided by law, be liable for any injury to persons or
damage to property occurring in, on or around the Parking Spaces.
34. LANDLORD'S CONTRIBUTION.
(A) As an inducement for Tenant to enter into this Lease, Landlord agrees
to pay to Tenant an allowance (the "Landlord's Contribution") in an amount not
to exceed /***/ (calculated by /***/). The Landlord's Contribution shall be
applied towards the payment of costs incurred in connection with (i) the
alterations, additions and improvements furnished or installed in the Premises
by Tenant in accordance with Article 35 hereof, including, without limitation,
fees for design, architectural and engineering drawings and (ii) such other
expenses, including the cost of furnishings, fixtures and equipment as are
related to the Lease. The Landlord's Contribution shall be applicable only in
connection with the initial preparation for occupancy of the Premises. To the
extent that any portion of the Landlord's Contribution is used for the purchase
of furnishings, fixtures or equipment, Tenant agrees that Landlord shall have a
security interest in such furnishings, fixtures or equipment, and Tenant agrees
to execute, upon Landlord's request, security agreements, UCC financing
statements or other documents evidencing Landlord's security interest in such
items.
(B) It shall be a condition of Landlord's obligation to pay any
installment of the Landlord's Contribution for work performed by any contractor
or supplier, other than those engaged by Landlord, that Tenant shall provide or
cause to be provided to Landlord (to the extent customarily required by title
insurance companies) contractor's affidavits and waivers of lien covering all
labor and material used and expended for which contractors are requesting
payment, and (if applicable) invoices establishing the actual cost of items
purchased and labor provided, all
_____________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-44-
in form and content reasonably satisfactory to Landlord. it shall be a further
condition to Landlord's obligation to pay or credit any amount of Landlord's
Contribution at any time that Tenant is not then in monetary default or in
default under any of the other material terms, covenants and conditions of this
Lease. Landlord's Contribution shall be advanced, upon satisfaction of the
foregoing conditions, as costs are incurred, subject to customary retainage.
35. IMPROVEMENT WORK.
In connection with the preparation of the Premises for initial occupancy,
and subject to the terms, covenants and conditions of Article 8 hereof (to the
extent not contrary to or inconsistent with the provisions of this Article 35),
Landlord and Tenant agree that the following shall apply:
A. Shell and Core Work.
-------------------
1. Landlord shall substantially complete at its sole cost and expense
as soon as reasonably possible all of the additional base building work
included in the Shell and Core Work defined below, subject to delays
caused by Force Majeure events and Tenant Delays (defined below) . For
purposes hereof, the "Shell and Core Work" includes the following:
(a) the demolition and removal of existing tenant improvements located
in the Premises, including ceilings, grid, lighting, partitions,
interior doors, floor coverings, millwork and fixtures and minor
floor latexing;
(b) the furnishing and installation of energy efficient thermopane
glass windows with thermal break frames, comparable to the windows
previously installed by Landlord on the fourth (4th) floor of the
Building, on the southerly and westerly walls of the south tower.
The parties recognize that a time period of fourteen (14) to
sixteen (16) weeks is required for the ordering, fabrication and
installation of the windows;
(c) the construction of a demising wall ready to receive Tenant
finish; and
(d) the installation of sound batt installation around the fan room.
2. In the event Landlord shall fail to substantially complete the Shell
and Core Work on or before the Commencement Date for reasons other than
a Tenant Delay (as defined below), then, such failure shall constitute
a Landlord Delay to the extent it delays the completion of Tenant's
Work beyond the Commencement Date, and the
-45-
Commencement Date shall be extended one (1) day for each day that any
Landlord Delay delays completion of Tenant's Work. If the completion of
Tenant's Work is delayed beyond July 10, 1997 as a result of a Landlord
Delay and not due to any Force Majeure events or Tenant Delays, then
notwithstanding anything to the contrary set forth herein, Landlord
agrees that in addition to the extension of the Commencement Date
described above in this Article 35(A)(2), Base Rent and rent
adjustments shall xxxxx after the Commencement Date one (1) day for
each day of such delay beyond July 10, 1997 (subject to extension of
such date by reason of Force Majeure or Tenant Delays).
3. Substantial completion of the Shell and Core Work shall mean completion
of such Work with the exception of minor and insubstantial details of
construction or mechanical adjustment, the incompletion of which will
not unreasonably interfere with Tenant's use of the Premises.
4. As used herein, "Force Majeure" events shall mean fire, casualty,
emergencies, lockouts, strikes, labor disputes, war, governmental
action, acts of God, labor or material short--ages, transportation
delays, and other causes beyond the reasonable control of the
respective party to prevent, of which the respective party has notified
the other party within ten (10) days after the notifying party becomes
aware of the occurrence of such a cause, but excluding insufficiency of
funds or inability to obtain financing or disbursement of loans.
5. In the event Landlord shall be delayed in substantially completing the
Shell and Core Work as a result of any fault of Tenant or its agents or
representatives in connection with any of the obligations of Tenant set
forth in this Lease, including, without limitation, any delay in
Tenant's approval of any plans or specifications or other materials
submitted by Landlord to Tenant for Tenant's review and approval such
delay shall be a "Tenant Delay".
6. Landlord and Tenant agree that their respective construction
representatives will cooperate with each other to prepare a
construction schedule with the objective of substantially completing
the Shell and Core Work and Tenant's Work as soon as reasonably
possible and the parties recognize it is the goal of Tenant to commence
initial construction of Tenant's Work within forty-five (45) days after
Lease execution. Landlord and Tenant agree that it may be more
efficient, cost effective and productive for Landlord to perform
certain portions of the Shell and Core Work in conjunction with and
during the construction of Tenant's Work and Tenant agrees to cooperate
and coordinate with Landlord in good faith in identifying any items of
the Shell and Core Work to be performed during the construction of
Tenant's Work, and Landlord and Tenant agree to use reasonable
-46-
efforts to work in harmony with each other and cooperate so that Tenant
may enter into occupancy of the Premises as soon as reasonably
possible.
B. Tenant's Work. Tenant shall be responsible for the construction of all
-------------
improvements in the Premises beyond the Shell and Core Work, subject to the
terms and conditions hereinafter provided:
1. Plans and Specifications.
------------------------
(a) Tenant shall cause to be prepared and delivered to Landlord
by reputable and qualified architects and engineers, the following plans and
specifications ("Plans") for all improvements Tenant desires to have completed
in the Premises in connection with Tenant's initial occupancy of the Premises
("Tenant's Work"):
(i) Architectural drawings (consisting of floor construction
plan, ceiling lighting and layout, power, and telephone plan).
(ii) Mechanical drawings (consisting of AC, electrical, telephone
and plumbing).
(iii) Finish drawings and schedule (consisting of wall finishes
and floor finishes and miscellaneous details).
All such Plans shall be submitted to Landlord in a state ready for
Landlord's review and approval, which shall not be unreasonably withheld or
delayed, on an interim basis when available from time to time. Tenant shall
deliver to Landlord seven (7) sets of all Plans provided for Landlord's review.
Landlord shall approve or disapprove of such Plans within six (6) business days
after its receipt thereof (and in the case of disapproval, state its reasons for
such disapproval), so long as Tenant or its architect have at least on a regular
basis consulted with Landlord in connection with preparation of such Plans and
delivered to Landlord preliminary drafts-of all such Plans as they become
available from time to time. Landlord shall not withhold its approval of any
improvements which do not affect Building Systems, the structural or member
components of the Building, common areas of the Building or operations in and
around the Building. Landlord and Tenant agree to cooperate and consult with
each other on a regular basis in connection with the preparation of such Plans
and during construction of the Tenant's Work. If Landlord fails to provide such
approval or fails to notify Tenant of the reasons for Landlord's disapproval
within the foregoing six (6) business day review period, Landlord shall be
deemed to have approved all such Plans.
(b) All Plans shall comply with all (1) applicable statutes,
ordinances, regulations, laws, and codes, and (2) the requirements of Landlord's
fire insurance underwriters.
-47-
Neither review nor approval by Landlord of the Plans shall constitute a
representation or warranty by Landlord that such Plans either (i) are complete
or suitable for their intended purpose, or (ii) comply with applicable laws,
ordinances, codes and regulations, it being expressly agreed by Tenant that
Landlord assumes no responsibility or liability whatsoever to Tenant or to any
other person or entity for such completeness, suitability or compliance, except
to the extent that any such work is performed specifically at and in accordance
with the specific direction of Landlord or its management agent. Tenant shall
not make any material changes in the Plans, whether before commencement of
construction or during construction, without Landlord's prior written approval,
which approval shall not be unreasonably withheld. Landlord shall approve or
disapprove any such changes within six (6) business days after its receipt
thereof (and in the case of disapproval, state its reasons for such
disapproval).
2. Performance of Tenant's
-----------------------
(a) Tenant may select its own contractors, subcontractors and/or
suppliers for the performance of the Tenant's Work provided, however, that
Landlord may require Tenant to give assurances reasonably satisfactory to
Landlord that all such contractors, subcontractors and suppliers are reputable,
financially responsible, maintain proper insurance and will not jeopardize labor
harmony. Landlord may also require Tenant to comply with such construction
standards or procedures as may be applicable from time to time for construction
activities in the Building (a set of such standards and procedures currently in
effect having been delivered by Landlord to Tenant in a book entitled
Construction Standards, Procedures and Specifications, Revised: December, 1992.)
------------------------------------------------------------------------------
and to submit reasonably satisfactory insurance certificates to Landlord. Tenant
shall pay to Landlord, within thirty (30) days after receipt of any invoice
therefor, Landlord's actual costs reasonably incurred by Landlord for reviewing
the Plans, coordinating the construction with the Building and providing general
conditions (as hereinafter provided), including any costs paid by Landlord to
third parties, if any, and the reasonable actual cost of time spent by
Landlord's employees to perform, such duties, such costs to be determined under
the billing rates set forth in Exhibit "F" attached hereto and made a part
hereof.
(b) Subject to approval of Tenant's Plans as provided by Paragraph B.1
above and after the filing of the Plans with the appropriate governmental
agencies, Tenant shall, at Tenant's sole costs and expense, except as otherwise
provided herein, cause the contractors employed by it to commence, as soon as
reasonably practicable, to construct and install and pursue to completion in the
Premises the Tenant I s Work '-n accordance with the Plans and without'
deviation from the Plans. Tenant agrees that it shall be responsible for all
contractors, subcontractors and suppliers engaged by Tenant, and that all work
performed by such parties shall be performed and completed in a good, diligent
and workmanlike manner, with no unreasonable noise or interference with
Landlord's and other tenants' Dcerations in the Building (taking into account
the nature, extent and time schedule for Tenant's Work).
-48-
(c) Such license to enter upon the Premises prior to the Commencement
Date for the performance of Tenant's Work is conditioned upon Tenant and
Tenant's agents, contractors, workmen, mechanics, suppliers and invitees working
in harmony and not interfering with Landlord or Landlord's contractors or agents
in doing any work in or about the Building, or with other tenants, invitees and
occupants of the Building. If at any time such entry shall cause such disharmony
or interference or, in Landlord's reasonable judgment, such disharmony or
interference is imminent, Landlord shall have the right to withdraw such license
upon twenty-four (24) hours' written notice to Tenant. When, in Landlord's
reasonable judgment, the cause of such disharmony or interference or imminent
potential disharmony or interference ceases to be present, Landlord shall then
promptly again grant such license to enter upon the Premises.
Tenant agrees that any such entry into and occupation of the Premises shall
be deemed to be under all of the terms, covenants, conditions and provisions of
this Lease except as to the covenants to pay rent, and further agrees that,
except for the negligence or willful acts of Landlord, its beneficiary or any of
their respective agents, employees or contractors, Landlord shall not be liable
in any way for any injury, loss or damage which may occur to any of Tenant's
work or installations made in the Premises or to property placed therein; and,
except for the negligence (by act or omission) or willful acts of Landlord, its
beneficiary or any of their respective agents, employees or contractors, and
except to the extent prohibited by law, Tenant shall protect, indemnify, defend
and save Landlord, its beneficiaries and their respective officers, directors,
agents, beneficiaries, partners, and employees harmless from and against any and
all liabilities, costs, damages, fees and expenses arising out of or in any way
connected with the activities of Tenant or its agents, contractors, suppliers or
workmen in or about the Premises or Building.
To the extent Tenant employs any contractors from time to time to do work
in the Premises, Tenant shall cause such contractors to secure and pay for
Worker's Compensation, Employers Liability Insurance, and Comprehensive General
Liability Insurance in customary forms and amounts reasonably acceptable to
Landlord. All policies shall be endorsed to include Landlord and its employees
and agents as additional insured parties. Certificates of such insurance shall
be delivered to Landlord prior to Tenant commencing any work in the Premises.
(d) Subject to Tenant's compliance with the reasonable rules and
regulations regarding the use thereof, Landlord shall provide Tenant (unless
Tenant elects otherwise as provided below) with the following general conditions
at Landlord's scheduled rates: (i) materials management coordination; (ii)
reasonable access to freight elevator services and loading docks, free of charge
during business hours (weekdays 7:30 a.m. to 5:00 p.m. for loading docks and
weekdays 6:00 a.m. to 8:00 p.m. for elevator service) during the completion of
the Tenant's Work, and in connection therewith Landlord agrees that it shall use
reasonable efforts to accommodate Tenant's construction schedule (Tenant agrees
to pay for any after business hours
-49-
elevator operator charges); (iii) ventilation, temporary electricity and water
during the construction period; and (iv) trash removal services from the loading
docks of the Building during construction. Landlord's schedule of costs for
general conditions as of the date of execution hereof is included 4.-n Exhibit
'IF" attached hereto and made a part hereof; such charges may be revised from
time to time to reflect Landlord's increased costs for supplying such items.
Tenant shall have the right to supply any general conditions (except to the
extent such general conditions are part of the normal operation of the Building
and such operation would be disrupted if such general conditions were provided
by another party) by itself or through its contractors rather than rely upon or
be required to use any services supplied by Landlord, provided, however, in
exercising such right, Tenant shall no-. interfere with the operation of the
Building.
(e) Landlord and Tenant acknowledge that Landlord and its
contractors may be performing portions of the Shell and Core Work at the same
time that Tenant and its contractors will be performing Tenant's Work. Landlord
and Tenant agree to cooperate with each other and to coordinate their respective
work, and to use their best efforts to cause their respective contractors to so
cooperate and coordinate, so that both the Shell and Core Work and Tenant's Work
may proceed expeditiously.
3. Delays in Completion of Tenant's Work. The number of days of
-------------------------------------
delay beyond July 1, 1997 in substantially completing Tenant's Work arising out
of or on account of any of the following events, except to the extent such
events are caused by the act or failure to act of Tenant, shall constitute
"Landlord Delays" and the outside date for the Commencement Date as set forth in
Article 1 hereof shall be extended one day for each day that any Landlord Delay
delays completion of Tenant's Work (and under certain circumstances, Landlord
Delays may also result in a rent abatement as described in Article 35(A)(2)
hereof):
Any delay resulting from Landlord's failure to approve the Plans in a
timely manner as required by this Article 35; or
(ii) Any delay resulting from Landlord's failure to perform in a
timely manner the Shell and Core Work pursuant to Paragraph (A) of this Article
35; or
(iii) Provided Tenant and its contractors have used all, reasonable
efforts to comply with the provisions of this Article 35(B), any delay resulting
from Landlord's revocation of the license under subparagraph B.2(c) of this
Article 35 for Tenant's contractors to enter upon the Premises for the
construction of Tenant's Work; or
(iv) Any other fault of Landlord or its agents, contractors, or
representatives in connection with any of the obligations of Landlord set forth
in this Article 35 (provided Tenant notifies Landlord in writing within ten (10)
days after Tenant first learns of any such delay).
-50-
4. Tenant's Move-In. In connection with Tenant's initial occupancy
----------------
of the Premises after substantial completion of Tenant's Work, Tenant shall have
the right to reserve reasonable portions of the Building is loading docks and
freight elevators (or passenger elevators), subject to scheduling to the mutual
reasonable satisfaction of Landlord and Tenant. Such reservation and use of the
elevators and loading docks in connection with Tenant's move-in shall be without
charge to Tenant, except that Tenant shall pay the cost of any after-hours
elevator service (i.e. other than 6:00 a.m. to 8:00 p.m. on weekdays) at
Landlord's actual cost (including overhead) in accordance with the rates
included in Exhibit "F".
36. EXPANSION OBLIGATIONS.
(A) Effective on /***/, there shall be automatically added to the
Premises demised hereunder approximately /***/ rentable square feet of space
contiguous to the Premises on the /***/ of the Building (the "First Take-Down
Space") , subject to the terms of this Article 36. Effective on /***/, there
shall be automatically added to the Premises demised hereunder approximately
/***/ rentable square feet of space contiguous to the Premises on the /***/ of
the Building (the "Second Take-Down Space"), subject to the terms of this
Article 36, which Second Take-Down Space is in addition to the First Take-Down
Space. The exact size, location and configuration of the First Take-Down Space
shall be reasonably determined by Tenant, provided the remaining balance of the
space (being the Second Take-Down Space) is of a leasable and appropriate
configuration and the exact size, location and configuration of the Second Take-
Down Space shall be determined by Landlord, the rentable area set forth above
for each Take-Down Space being an estimate only; however, it is the parties'
intent that after the addition of the Second Take-Down Space, the Premises shall
consist of approximately /***/ rentable square feet, being the /***/ of the
Building.
(B) Each of the Take-Down Spaces shall be added to the Premises on all of
the terms, covenants and conditions of this Lease, including the payment of Base
Rent and rent adjustments pursuant to Articles 3 and 4 hereof, except for
Articles 34, 35 and 39 hereof. The Base Rent Schedule set forth in Article 3
and the Tenant's Proportionate Share set forth in Article 4 are inclusive of
Tenant's obligation to pay Base Rent and rent adjustments for each of the Take-
Down Spaces; however, if the rentable square footage of any Take-Down Space is
other than as set forth above, then Landlord and Tenant shall enter into an
amendment to this Lease reflecting the actual square footage and adjusting the
Base Rent and Tenant's Proportionate Share accordingly.
(C) Notwithstanding anything in this Lease to the contrary, Tenant agrees
to accept each Take-Down Space in an "as is" broom clean condition (excluding
furniture and equipment)
__________________________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-51-
as existing on the date such space is added to the Premises; provided, however,
Landlord agrees to make Available to Tenant, at Tenant's option, an improvement
allowance ("Take-Down Improvement Allowance") in an amount not to exceed to (i)
with respect to the First Take-Down Space, $*** per rentable square foot of such
First Take-Down Space, and (ii) with respect to the Second Take-Down Space, $***
per rentable square foot of such Take-Down Space, to be applied toward payment
of costs of alterations, additions and improvements, made to such Take-Down
Space by Tenant (including, without limitation, fees for design, architectural
and engineering drawings). Landlord shall disburse such Take-Down Space
Improvement Allowance to or on behalf of Tenant on the same terms and conditions
as applicable to the disbursement of Landlord's Contribution with respect to
Tenant's original construction of the Premises as provided in Article 34 hereof.
It is a condition to Landlord's obligation to pay any portion of the Take-Down
Improvement Allowance that Tenant has increased the amount of the Letter of
Credit as described in Article 32.
(D) Tenant may, at its option, add either of the Take-Down Spaces to the
Premises on, the terms set forth in this Article 36, on a date which is earlier
than the date set forth above for the automatic take-down of such space, upon
delivery at least one hundred twenty (120) days prior written notice to
Landlord. In such event, Landlord and Tenant agree to enter into an amendment
to this Lease reflecting the addition of such Take-Down Space within 90 days
after Landlord advises Tenant of the final size, location and configuration of
such Take-Down Space, and in such event, in lieu of the Take-Down Improvement
Allowance described in subparagraph (C), the amount of the Take-Down Improvement
Allowance shall be equal to the product of (i) $*** per rentable square foot of
such Take-Down Space by (ii) the number of Lease Years (including fractions
thereof rounded to the nearest one-twelfth) remaining in the initial Term.
37. OPTIONS TO EXTEND TERM. Subject to the terms of this Article 37, the
Term may be extended, at the option of Tenant, for /***/ successive periods of
five (5) years each, each such period being herein sometimes referred to as an
"Extended Term" (and constituting part of the "Term"), as follows:
(A) Each option to extend the Term for an Extended Term must be exercised
by Tenant by (1) delivery to Landlord, not more than /***/ months and not less
than *** months, prior to the commencement of the applicable Extended Term, of a
non-binding written notice of Tenant's good faith intent to exercise such option
and (2) delivery to Landlord of a binding written notice exercising such option
no less than /***/ months prior to the commencement of the applicable Extended
Term; provided, however, in no event shall such binding written notice be
required to be delivered earlier than fifteen (15) days after the final
determination of Extension Term Rent pursuant to Paragraph (D) below and, if
applicable, Article 38 hereof. Tenant shall not have the right to extend the
Term beyond the last day of the /***/ full calendar month of the
_______________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
-52-
Term (as extended pursuant to this Article 37). Any termination of this Lease or
any termination of Tenant's right of possession hereunder during the initial
Term hereof or during an Extended Term shall terminate all rights to extend
granted hereunder. If Tenant shall fail to give Landlord timely notice of its
exercise of an option herein contained or, in the case of the second option to
extend, if Tenant shall fail to exercise such first option to extend, Tenant
shall be deemed to have waived such option to extend the Term hereof and such
option and subsequent option, if any, shall thereupon become null and void.
(B) Each Extended Term shall be on the same terms, covenants and conditions
of this Lease, except for the provisions of Articles 33, 34, 35 and 39 hereof,
and except for the determination of Base Rent as hereinafter provided. The
provisions of Article 4 hereof providing for the payment of rent adjustments
with respect to increases in Operating Expenses and Ownership Taxes shall be
applicable to any Extended Term, provided that the Base Year used in the
calculation of such rent-adjustments in any Extended Term shall be the calendar
year in which such Extended Term begins.
--
(C) The Base Rent during any Extended Term (herein referred to as
"Extension Term Rent") shall be at a rate equal to the Fair Market Rent (as
defined in Article 38 hereof) during each Extended Term, which Fair Market Rent
shall be calculated in advance but as of the first day of the applicable
Extended Term rather than as of the date such calculation is made; provided,
however, that the calculation so made shall be final and shall not be remade on
the first day of any such Extended Term. The calculation shall reflect the full
length of the Extended Term, and shall be recalculated for any subsequent
Extended Term.
(D) Landlord shall provide Tenant with Landlord's calculation of Fair
Market Rent, no later than one month after delivery of Tenant's non-binding
written notice under Paragraph (A) above. If Tenant notifies Landlord in
writing within ten (10) days after delivery of Landlord's calculation of the
Fair Market Rent that Tenant contests Landlord's calculation and the parties
cannot within ten (10) days after delivery of such notice by Tenant ("the
Negotiation Period") reach agreement on the Fair Market Rent payable during any
such Extended Term, then the Fair Market Rent shall be determined in accordance
with the procedures set forth in Article 38 hereof.
(E) Tenant may extend the Term only as to all of the Premises as are
demised to Tenant on the date of Tenant's exercise of such applicable option to
extend.
(F) Tenant's rights to exercise its option to extend the Term of this Lease
for any Extended Term are subject to the condition that Tenant is not in
monetary default or in default under any of the other material terms, covenants
or conditions of this Lease at the time that Tenant delivers its written notice
to Landlord of the exercise of any such option to extend for an Extended Term,
or upon the commencement of such Extended Term unless Landlord, in its absolute
discretion, elects in writing to waive such condition to the effective exercise
of the opt--
-53-
ion (provided the foregoing shall not affect or limit Landlord's rights to
enforce any defaults of Tenant pursuant to Article 15 hereof). Notwithstanding
the foregoing, if the existence of any such default shall, pursuant to the
foregoing, make ineffective the exercise of such option, such exercise shall
nevertheless become effective as of the originally scheduled date if such
default is cured within the earlier of (i) any applicable cure or grace period
specified in Article 15 hereof or (ii) thirty (30) days after delivery of notice
of such default by Landlord to Tenant.
(G) In the event Tenant exercises any option pursuant to this Article 37,
Tenant shall accept the Premises in "as is" condition.
(H) In the event Tenant exercises any option pursuant to this Article 37,
Tenant and Landlord agree to enter into an amendment to this Lease setting forth
the terms applicable to such Extended Term within ninety (90) days after the
date Tenant gives binding notice of its exercise of an option to extend the Term
of this Lease for an Extended Term.
(I) The options to extend granted pursuant to this Article 37 are personal
to 21st Century Cable TV, Inc. (and any Successor or Affiliate to whom this
entire Lease has been assigned in compliance with Article 12) and may not be
exercised by or for the benefit of any other party. Any termination of this
Lease or of Tenant's right to possession under this Lease shall extinguish and
cancel all rights of Tenant under this Article 37.
38. FAIR MARKET; ARBITRATION PROCEDURES.
(A) "Fair Market Rent" for the Premises with respect to any Extended Term
shall mean the fair rental, as of the date for which such Fair Market Rent is
being calculated, per annum per rentable square foot for comparable space for a
comparable term, by reference to comparable space with a comparable use in the
Building, and in other buildings comparable to the Building in quality and
location, but excluding those leases where the tenant has an equity interest in
the property. The Fair Market Rent shall be determined on the basis of a fixed
base rent per square foot without rent adjustments of any kind (other than rent
adjustments with respect to increases in Operating Expenses and ownership Taxes
as provided in Article 4 hereof and, with respect to Fair Market Rent f or any
Extended Term, using as a Base Year the calendar year in which the respective
Extended Term commences), whether in the nature of CPI adjustments, step
increases or otherwise (the economic value of any such adjustments then
customarily applicable in the market to be reflected instead in the
determination of such base rent) , and taking into account in the calculation of
such base rent (as a decrease in the otherwise applicable base rent) any then
market tenant improvement allowance or concession, free rent concession, or
other concessions, allowances or inducements (other than tenant equity interests
in the property) of any kind then customarily available in the market (such
concessions, allowances or inducements not to be separately stated or paid with
respect to any Extended Term).
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(B) In the event Tenant disagrees with Landlord's determination of. Fair
Market Rent at any time and the parties thereafter reach agreement on such Fair
Market Rent (and resulting Extension Term Rent) during any Negotiation Period
described in Article 37 hereof, such Fair Market Rent (and resulting Extension
Term Rent) shall be reflected in the lease amendment required to be executed by
Landlord and Tenant pursuant to Article 37 hereof.
(C) In the event Landlord and Tenant are unable to reach agreement on the
calculation of Fair Market Rent during any Negotiation Period described in
Article 37 hereof, then in any such event the Fair Market Rent shall be
determined in accordance with the following arbitration procedures:
(i) within five (5) days after the expiration of any such
Negotiation Period, Landlord and Tenant shall each simultaneously submit to the
other in a sealed envelope its good faith estimate of the Fair Market Rent. If
the higher of such estimate is not more than /***/ percent of the lower of such
estimates, then the Fair Market Rent shall he the average of the two estimates.
Otherwise, within five (5) days after such exchange of estimates, either
Landlord or Tenant may submit the question to arbitration in accordance with
clause (ii) below, by delivery of written notice to the other exercising such
right within such five (5) day period.
(ii) within seven (7) days after receipt of such notice, Landlord
and Tenant shall select, to act as an arbitrator, an independent MAI appraiser
with experience in real estate activities, including at least ten (10) years'
experience in appraising office space in the downtown Chicago area. If the
parties cannot agree on such an appraiser, each party shall then within a period
of seven (7) days thereafter select an independent MAI appraiser meeting the
previously-described criteria, and within a third period of seven (7) days after
the appointment of the last of the two appraisers to be appointed, the two
appointed appraisers shall select a third appraiser meeting the aforementioned
criteria, and all three of such appraisers shall independently determine the
Fair Market Rent (each such independent determination of the Fair Market Rent
shall be called an "Appraised Rent"). if one party shall fail to make an
appointment of an appraiser within the foregoing seven (7) day period, then the
appraiser chosen by the other party shall choose the other two appraisers.
(iii) once the appraiser (or appraisers if the parties cannot agree
on a single appraiser) has been selected as provided in clause (ii) above, then,
as soon thereafter as practicable but in any case within fourteen (14) days
after the selection of such appraiser (or the last of such appraisers, as the
case may be) the single appraiser's Appraised Rent or the average of the two
closest Appraised Rents (in the case of more than one appraiser) shall he
calculated in accordance with the criteria described in Paragraph (A) of this
Article 38 (such average shall be called the "Average Appraised Rent") a.-id the
appraiser (or appraisers, as the case may be) shall
___________________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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select one of the two estimates of Fair Market Rent submitted by Landlord and
Tenant pursuant to Article 38(C)(i), which shall be the one that is closer to
the Appraised Rent or Average Appraised Rent, as the case may be. Landlord and
Tenant agree that the estimates submitted by Landlord and Tenant to each other
shall not be furnished to the appraisers) until the appraisers have informed
Landlord and Tenant of the Appraised Rent or Average Appraised Rent, as the case
may be, as determined by them. The value so selected shall be the Fair Market
Rent. The decision of the appraisers) as to the Fair Market Rent shall be
submitted in writing to, and be final and binding on, Landlord and Tenant.
Landlord and Tenant shall share equally the costs of the appraisers who
participated in the foregoing procedure. Any fees of any counsel engaged
directly by Landlord or Tenant, however, shall be borne by the party obtaining
such counsel.
39. TEMPORARY SPACE.
As an accommodation to Tenant, Landlord shall make available, at the
request of Tenant, for Tenant's occupancy for the conduct of its business up to
approximately 5,000 rentable square feet of temporary space in the Building,
which temporary space is more fully shown and described on Exhibit "G" attached
hereto and made a part hereof, commencing on February 1, 1997, but extending not
later than the Commencement Date. All of the covenants and conditions of the
Lease shall be binding upon Tenant in respect of its use and possession of such
temporary space, except that: (i) Tenant agrees to accept such space in "as is"
condition as existing on the date such space is made available to Tenant; and
(ii) Tenant shall not be obligated to pay to Landlord any rent in respect of
such space (other than housekeeping and janitorial charges and utility charges,
which may be billed directly to Tenant or allocated to Tenant on a proportional
basis as reasonably determined by Landlord).
40. ROOFTOP EQUIPMENT.
(A) Tenant may at any time during the Term, including any Extended Term,
at its sole cost and expense, locate, install and maintain on those certain
antennae platforms located on the roof' of the Building on the second and
thirteenth floors, northwest side, of the Building (collectively, the "Roof") ,
as the location of such platforms is more fully shown and described in Exhibit
"HI' attached hereto, satellite antennae or dishes or other similar
communication devices from time to time (the "Antennae"), subject to the
reasonable approval of Landlord with respect to size, location, method of
installation, and screening (to the extent such is necessary to avoid unsightly
installation of such Antennae). Tenant shall pay rent for the use of such
antennae platforms on the Roof as follows:
Lease Year Annual Rent Monthly Installment
---------- ----------- -------------------
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*** *** ***
Such rent shall be additional rent due under this Lease payable at the same time
and manner as Base Rent.
(B) In connection with the installation of the Antenna, Tenant shall have
the right at its sole cost and expense to connect such Antennae to the Premises
demised hereby by appropriate cables in locations reasonably designated by
Landlord and subject to such reasonable rules and regulations as may be unposed
by Landlord from time to time. Landlord agrees to make available to Tenant
riser space as is reasonable and necessary for such connection of the Antennae
to the Premises. The location, installation, operation and maintenance of the
Antennae shall (i) conform to all applicable zoning and other applicable
governmental guidelines, laws, codes, rules, regulations, ordinances and
licensing requirements in effect from time to time as well as all reasonable
architectural standards established by Landlord from time to time and any other
requirements or conditions applicable to such installation or maintenance; (ii)
be subject to and completed in accordance with the terms and conditions of
Article 8 hereof and be performed in such manner so as to maintain all
warranties on the Roof and not affect the structural components of the Roof and
shall be coordinated through Landlord; (iii) be located on that part of the Roof
as Landlord may from time to time designate away from the perimeter of -.he Roof
(as such initial location is shown on Exhibit "F") so as not to be visible from
street level); provided that (a) Landlord shall reasonably cooperate with Tenant
in locating such items so that they shall be useable and useful for their
intended purposes, and (b) Landlord may from time to time require Tenant-to
relocate any or all of such items to another portion or other portions of the
Roof, at Landlord's sole cost and expense, so long as such relocation does not
unreasonably interfere with Tenant's use thereof; and (iv) not unreasonably
interfere with the use of any other communications equipment installed on the
Roof -from time to time by Landlord or other tenants in the Building (and
Landlord agrees not to grant to other tenants of the Building or third parties
the right to install antennae or equipment on the Roof so as to adversely affect
the Antennae of Tenant or the operation thereof and to require any such other
tenants hereafter permitted to install similar equipment to agree not to
unreasonably interfere with the use of any such communications equipment
installed by other tenants, including Tenant, of the Building).
Tenant shall promptly repair and restore, in a manner consistent with any
warranties, any damage to the Roof or the Building resulting from or arising out
of Tenant's installation, operation, maintenance and repair of the Antennae and
other equipment of Tenant pursuant hereto and protect, indemnify, defend and
hold Landlord and Landlord's beneficiaries and any other owner or owners of the
Building and their beneficiaries, and all of their respective officers,
directors, partners, agents and employees, harmless from and against any
liabilities, damages,
__________________________
*** Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission.
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costs, claims, and expenses arising out of or in connection with Tenant's
activities under this Article 40.
(C) Tenant agrees that upon expiration of the Term hereof it will promptly
remove any such Antennae and equipment and conduits, cables and other facilities
connecting such Antennae and equipment to the Premises demised hereby, and
repair and restore, in a manner consistent with any warranties, any damage
caused to the Roof, the Building or the Property in connection with such
installation or removal. Tenant and Landlord shall have continuing access to
all areas of the Roof of the Building. Upon prior notice to Tenant, Landlord
shall have the right, at Landlord's expense, to remove the Antennae and/or
relocate the Antennae from time to time as may be necessary or desirable for the
maintenance or repair of the Roof, provided that Landlord coordinates with
Tenant the timing and location and uses reasonable efforts to mitigate any
unreasonable interruption of Tenant's satellite services.
41. COVENANT OF QUIET ENJOYMENT.
Landlord covenants that Tenant, upon paying the Base Rent, rent adjustments
and other payments provided for herein, and upon keeping, observing and
performing all other terms, covenants, conditions and agreements herein
contained on the part of Tenant to be kept, observed and performed, shall,
during the Term, as extended, peaceably and quietly have, hold and enjoy the
Premises subject to the rights of any mortgagee and the terms, covenants,
conditions and agreements hereof free from hindrance by Landlord or any other
person claiming by, through or under Landlord.
42. ENTIRE AGREEMENT.
Except as expressly otherwise provided herein, this Agreement, together
with all of the exhibits attached hereto, constitutes the entire understanding
between Landlord and Tenant as to the subject matter hereof and supersedes all
prior agreements between the parties hereto about such matters, and all of the
representations and obligations of Landlord and Tenant are contained herein.
43. TRUSTEE CLAUSE.
It is expressly understood and agreed that this Lease is executed on behalf
of LASALLE NATIONAL BANK, not personally but as Trustee aforesaid, in the
exercise of the power and authority conferred upon and invested in it as such
Trustee, and under the direction of the beneficiaries of a certain Trust
Agreement dated March 1, 1967, as extended, and known as Trust No. 36223. It is
further expressly understood and agreed that LASALLE NATIONAL BANK, as Trustee
aforesaid, has no right or power whatsoever to manage, control or operate said
real estate in any way or to any extent and is not entitled at Any time to
collect or receive for any
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purpose, directly or indirectly, the rents, issues, profits or proceeds of said
real estate or any lease or sale or any mortgage or any disposition thereof.
Nothing in this Lease contained shall be construed as creating any personal
liability or personal responsibility of the Trustee or any of the beneficiaries
of the Trust, or any of their respective officers, directors, beneficiaries,
partners, agents, and employees, and in particular, without limiting the
generality of the foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either expressly or
impliedly herein contained, or to keep, preserve or sequester any property of
said Trust or for said Trustee to continue as said Trustee; and that so far as
the parties herein are concerned the owner of any indebtedness or liability
accruing hereunder shall look solely to and attempt to collect solely from the
trust estate from time to time subject to the provisions of said Trust Agreement
for payment thereof, Tenant hereby expressly waiving and releasing said personal
liability and personal responsibility of the Trustee and any of the
beneficiaries of the Trust, and any of their respective officers, directors,
beneficiaries, partners, agents and employees on behalf of itself and all
persons claiming by, through or under Tenant.
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IN TESTIMONY WHEREOF, the parties hereto have caused this instrument to be
executed in duplicate as of the day and year first above written.
TENANT: LANDLORD:
21ST CENTURY CABLE TV, INC. LASALLE NATIONAL BANK, not
individually but as Trustee under a Trust
Agreement dated March 1, 1967, as
extended, and known as Trust No. 36223,
as aforesaid
By: /s/ Xxxxx Xxxxxxxx By: /s/
---------------------- -------------------------------
Its: President & CEO Its: Senior Vice President
--------------------- ------------------------------
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CERTIFICATE
(If Tenant is a Corporation)
I, _______________________________, ___________________ Secretary of
___________________________________________, Tenant, hereby certify that the
foregoing Lease has been authorized by all necessary corporate action on behalf
of Tenant, the officer(s) executing the foregoing Lease on behalf of Tenant
was/were duly authorized to act in his/their capacities as and his/their
action(s) are the action of Tenant.
_________________________
______________ Secretary
(Corporate Seal)
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