LEASE
EXHIBIT 10.6
THIS LEASE (“Lease”) is entered into as of the 11th day of September, 2003, by and between
PANATTONI DEVELOPMENT COMPANY, LLC, a California limited liability company, whose address is 00000
X. Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 (together with its successors and assigns,
“Landlord”) and XXXXXXX CABLE, INC., a Delaware corporation, whose address is 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000, and will be as of the Commencement Date, the Premises (as hereinafter
defined) (together with its permitted successors and assigns, “Tenant”).
1. AGREEMENT TO LEASE. Landlord hereby leases to Tenant, and Tenant hereby accepts
and leases from Landlord, that building (the “Premises” or the “Building”) to be constructed on the
real estate legally described on Exhibit A attached hereto and made a part hereof (the
“Land”), which Building is located at the corner of Lakeside and Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
00000, and which shall contain approximately Thirty Thousand One Hundred Seventy Five (30,175)
rentable square feet, the plan for which is attached hereto as Exhibit B and made a part
hereof (the Land, the Premises and other improvements now or hereafter contained on the Land are
collectively referenced to herein as the “Property”) for the Term (as defined below). Not less
than sixty (60) days prior to the Commencement Date (as hereinafter defined), Landlord shall submit
in writing to Tenant the exact number of rentable square feet contained in the Building measured in
accordance with the BOMA 1996 standards and otherwise consistent with usual and customary practice
in Lake County, Illinois. Such calculations shall be subject to verification by Tenant and/or
Tenant’s architect. Such exact determination shall be used, notwithstanding anything to the
contrary contained in this Lease or in any Exhibit attached hereto to the contrary, in calculating
Base Rent, Tenant Improvement Allowance as more specifically enumerated in the Work Letter (as
hereinafter defined) and the Purchase Price set forth in Section 28.2 hereof. Accordingly,
any such calculations of Base Rent, Tenant Improvement Allowance as more specifically enumerated in
the Work Letter (as hereinafter defined), and the Purchase Price, including, but not limited to,
the amounts enumerated in Exhibit D attached hereto, shall be recomputed by Landlord and
Tenant in accordance with such exact calculations. In the event Landlord and Tenant cannot agree
on the exact rentable square footage of the Premises, then Landlord and Tenant (or their respective
representatives or architects) shall select a mutually agreeable independent architect to make a
determination as to such exact calculations in accordance with the terms of this Lease, and such
determination shall be final and binding on both Landlord and Tenant. Notwithstanding anything
hereinabove contained to the contrary, the Premises shall be deemed for all purposes hereof to be
Thirty Thousand One Hundred Seventy Five (30,175) rentable square feet unless it is ultimately
determined in accordance with the provisions hereof that the Premises contain 29,875 rentable
square feet or less or, conversely, 30,475 rentable square feet or more, in which event the actual
number of rentable square feet as so determined shall be utilized.
2. THE TERM. As used herein, the “Term” shall mean the period of time commencing on
the Commencement Date and ending one hundred twenty (120) calendar months after the Commencement
Date, provided that if the Commencement Date is not the first (1st) day of a calendar month, the
Term shall end one hundred twenty (120) calendar months after the last day of the calendar month in
which the Commencement Date occurs, unless extended or sooner
terminated as provided herein, subject to the agreements herein contained. As used herein,
the “Commencement Date” shall mean the Substantial Completion Date as defined in Section
6.1 of the Work Letter attached hereto as Exhibit C and made a part hereof (the “Work
Letter”). In connection herewith the Commencement Date shall occur no later than June 1, 2004 (the
“Target Date”) except that the Target Date shall be extended on a day for day basis upon timely
notice to Tenant to the extent such extension is attributable to a Force Majeure Delay (not to
exceed ninety (90) days) or Tenant Delay as defined in Section 6.2 of the Work Letter. Not
less than sixty five (65) days prior to the Target Date, Landlord shall deliver written notice to
Tenant whether the Building will be Substantially Complete by the Target Date. If Landlord is not
thereafter able to achieve the Substantial Completion Date of the Building as defined in
Section 6.1 of the Work Letter by July 1, 2004 then Landlord shall deliver, not less than
sixty five (65) days prior to July 1, 2004, written notice to Tenant of such fact. If Landlord
shall fail to timely deliver such notices to Tenant as set forth above, Landlord shall be
responsible for Tenant’s increased base rent for Tenant’s holding over under Tenant’s lease for the
premises located at 0000 X. Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000. In accordance with the
provisions contained in the Work Letter and this Lease, and with specific reference to the
immediately foregoing sentence, notwithstanding anything herein contained to the contrary, if the
Commencement Date does not occur by September 1, 2004, (the “Outside Date”), except that the
Outside Date shall be extended on a day for day basis upon timely notice to Tenant to the extent
such extension is attributable to a Tenant Delay as defined in Section 6.2 of the Work
Letter. Tenant shall have the right to terminate this Lease upon written notice to Landlord and
this Lease shall thereupon be null and void and neither party shall have any further rights or
obligations under this Lease. If Landlord delivers the notices as set forth above informing Tenant
that the Building will be Substantially Completed by either the Target Date or July 1, 2004 and the
Building is not Substantially Completed by such dates, but instead the Building is Substantially
Completed on a date other than the first (1st) day of June, July, or August then the
parties agree that the Commencement Date shall occur on the seventh (7) business day after such
date.
3. RENT. Tenant shall pay Rent to Landlord at the office of Landlord or to such other
person or at such other place as Landlord may designate, without offsets or deductions of any kind
whatsoever, subject, however, to the otherwise applicable provisions hereof at the times and in the
manner hereinafter set forth. As used herein “Rent” shall mean Base Rent (as defined below),
Additional Rent (as defined below) and all other amounts to be paid by Tenant to Landlord under
this Lease or the Work Letter, subject however, to the otherwise applicable provisions hereof.
4. BASE RENT. Subject to the otherwise applicable provisions contained in the last
sentence of Section 16.2 hereof, Base Rent shall begin to accrue and be payable on the date
(the “Rent Commencement Date”) which is six (6) months following the Commencement Date and on the
first day of each calendar month thereafter during the Term. The period of time between the
Commencement Date and the Rent Commencement Date is referred to herein as the “Free Rent Period”.
Tenant shall pay Base Rent in the respective amounts set forth on Exhibit D attached hereto
and made a part hereof. The Base Rent payable for each Lease Year (as defined below) shall be paid
in twelve (12) equal monthly installments, in advance, not later than the first (1st) day of each
month, provided, however, that no payments shall accrue or be payable during the Free Rent Period.
If the Rent Commencement Date is other than the first (1st) day of a calendar month, then the
installment of Base Rent for such initial calendar month shall be
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prorated on a per diem basis for such fractional period and shall be paid on the Rent
Commencement Date. As used herein, “Lease Year” shall mean each consecutive twelve (12) month
period beginning with the Commencement Date, except that if the Commencement Date is other than the
first (1st) day of a calendar month, then the first (1st) Lease Year shall be the period from the
Commencement Date through the date twelve (12) months after the last day of the calendar month in
which the Commencement Date occurs, and each subsequent Lease Year shall be the period of twelve
(12) months following the last day of the prior Lease Year.
5. ADDITIONAL RENT. In addition to paying the Base Rent specified in Section 4
hereof, Tenant shall pay as “Additional Rent” for the portion of the Term following the Free
Rent Period the amounts determined as set forth below in this Section 5, provided, however,
that Tenant shall at all times after the Commencement Date be directly responsible for the cost of
electricity and natural gas service to the Premises as well as all telephone services required by
Tenant.
5.1 Definitions. As used in this Lease, the following terms shall have the following
meanings:
(a) “Calendar Year” shall mean the twelve (12) month period January through December of
any year (or portion thereof) falling within the Term.
(b) “Taxes” shall mean all real estate taxes and assessments and similar governmental
charges, special or otherwise, direct or indirect, ordinary or extraordinary (including,
without limitation, those levied or assessed by special taxing districts now or hereafter
created) levied or assessed upon or with respect to the Property and any additions thereto
or substitution therefor. “Taxes” shall also include all reasonable fees and costs incurred
by Landlord in connection with reducing or limiting the increase in any Taxes, but only to
the extent any reduction or limitation is obtained. “Taxes” shall not include inheritance,
income, transfer or franchise taxes paid by Landlord. In determining the amount of Taxes
for any Calendar Year, the amount of special assessments to be included shall be limited to
the amount of the installment (plus any interest payable thereon) of such special assessment
which would have been required to have been paid during such year if Landlord had elected to
have such special assessment paid over the maximum period of time permitted by law. Except
as provided in the immediately preceding sentence, all references to Taxes for a particular
Calendar Year shall be deemed to refer to Taxes levied, assessed or otherwise imposed for
such year without regard to when such Taxes are payable.
(c) “Operating Expenses” shall mean for any Calendar Year those costs or expenses
reasonably incurred by or on behalf of Landlord, without duplication, for owning, managing,
operating, maintaining and repairing the Property except for structural components of the
Building, including, without limitation, the roof, roof membrane, roof covering (including
interior ceiling if damaged by leaking attributable to any of the Structural Components),
load-bearing walls and floor slabs and masonry walls and foundations (collectively, the
“Structural Components”) and the HVAC Systems (as hereinafter defined) for which Landlord
shall be solely responsible (and any costs therefor shall not be deemed to be Operating
Expenses, except usual and customary
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periodic inspections and routine maintenance to the roof, roof membrane and roof
covering and HVAC Systems shall be deemed Operating Expenses), including, without
limitation: dues and other amounts payable to the Amhurst Lake Business Park Association;
the cost of fire monitoring, security and security device systems for the Building, if any;
snow and ice and trash removal; cleaning, sweeping, planting and landscaping, including
replacements thereto; the cost of ordinary maintenance and repairs: (i) sewer, water,
mechanical, electrical, sprinkler and other utility systems and equipment, (ii) heating,
ventilating and air conditioning systems and equipment, parking lots, driveways and
sidewalks on the Land, and exterior lighting systems and equipment, exclusively servicing
the Building; utilities, fuel and water if not separately metered; exterior window cleaning;
insurance carried by Landlord pursuant to Section 18 hereof unless otherwise stated
in Section 18.1 hereof and applicable to the Property and not carried by Tenant;
deductibles paid by Landlord under the insurance policies described above, provided said
deductibles are commercially reasonable for properties similarly situated; exterior
painting; management fees (not to exceed 3.5% of the Rent attributable to the Property;
supplies; the reasonably proportionate cost of wages, salaries and benefits of all persons
employed by Landlord at the level of property manager and below engaged in the operation,
management, maintenance and repair of the Property; non-extraordinary legal and accounting
expenses; and any other expense or charge which would be considered as an expense of owning,
managing, operating, maintaining or repairing the Property. Notwithstanding anything herein
to the contrary, Operating Expenses shall not include: costs or other items included within
the meaning of the term “Taxes”; costs of tenant alterations to tenant space; attorneys’
fees incurred in connection with: (A) the formation and continued existence of Landlord, (B)
any loans to Landlord relating to the Property, and (C) tenant leases, including, without
limitation, negotiations with prospective tenants or enforcement actions against any tenant,
and any other extraordinary attorneys fees not incurred in the ordinary course; marketing
costs; the cost of capital expenditures, i.e., expenditures which in accordance with
generally accepted accounting principles are not fully chargeable as a current expense in
the year the expenditure is incurred (“Capital Expenditures”) except for the cost of
resurfacing the parking areas, driveways and sidewalks on the Property but not more than
once every six (6) years; and except as provided below; depreciation or amortization charges
attributable to Capital Expenditures; interest and principal payments on mortgages; real
estate brokerage and leasing commissions; and any other expenditures for which Landlord has
been reimbursed other than hereunder. Notwithstanding the foregoing, the cost of any
Capital Expenditures to the Property made after the date of this Lease which are intended to
reduce Operating Expenses or which are required under any laws, statutes, codes, ordinances,
or governmental rules, regulations or requirements, or judicial or administrative rules,
orders or decrees (collectively, “Laws”) which were not applicable to the Property at the
time it was constructed, amortized in accordance with generally accepted accounting
principles, together with interest on the unamortized cost of any such improvements (at the
prevailing construction loan rate available to Landlord on the date the cost of such
improvements was incurred) shall be included in Operating Expenses. The cost of any Capital
Expenditures made in connection with resurfacing the parking areas, driveways and sidewalks
on the Property shall also be similarly amortized
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over the useful life thereof, with interest, as provided in the immediately preceding
sentence, and included in Operating Expenses.
5.2 Tax Amount. Tenant shall pay to Landlord as Rent, in addition to the Base Rent
and the Operating Expense Amount (as defined below), the Taxes (the “Tax Amount”). Tenant shall
pay to Landlord the Tax Amount with respect to each Calendar Year in monthly installments, at the
same time and place as Base Rent is to be paid, in an amount estimated from time to time by
Landlord by a written notice to Tenant (the “Estimated Tax Payments”). Landlord shall deliver to
Tenant as soon as practical after the close of each Calendar Year (including the Calendar Year in
which this Lease terminates) a statement showing the amount of the Taxes for such Calendar Year.
Tenant hereby acknowledges that Landlord will not be able to deliver such statement until Landlord
receives the real estate tax bills for each Calendar Year, which bills arc currently received six
(6) to nine (9) months after the end of each Calendar Year. If the Estimated Tax Payments paid by
Tenant during any Calendar Year are less than the Tax Amount for such Calendar Year, Tenant shall
pay any deficiency to Landlord as shown by such statement within thirty (30) days after receipt of
such statement. If the Estimated Tax Payments paid by Tenant during any Calendar Year exceed the
Tax Amount due from Tenant for such Calendar Year, such excess shall be credited against payments
next due hereunder. If no such payments are next due, such excess shall be refunded by Landlord.
(a) Tenant may contest any Taxes in respect of the Property and attempt to obtain a
reduction in the assessed valuation of the Property or otherwise for the purpose of reducing
the same, however, Tenant agrees that Landlord shall have the right to join in such
proceeding with Tenant. Landlord shall cooperate with Tenant and execute any document which
may be reasonably necessary and proper for any proceeding in connection with the reduction
of Taxes. If a tax reduction is obtained, there shall be a reduction in the Tax Amount due
for the respective Calendar Year and any excess payments by Tenant in respect of the Tax
Amount, to the extent of Tenant’s proportionate share of such refund, shall be refunded by
Landlord, without interest, to Tenant as the refunds to which Landlord is entitled from a
taxing authority with respect to such Calendar Year have been received by Landlord.
Expenses incurred by Tenant shall be deducted from any tax reduction obtained.
(b) Tenant shall not be liable for increases in Taxes attributable to additional
improvements to the Property that are constructed in a Calendar Year included within the
Term unless the additional improvements are reasonably approved, in advance, by Tenant,
unless such improvements are required by law or governmental authority.
(c) The monthly impounds required hereunder for Taxes paid by Tenant shall only be used
by Landlord to pay Taxes accruing commencing with the Rent Commencement Date. Landlord
shall not be required to deposit the monthly impounds for Taxes paid by Tenant in a
segregated account but Landlord shall provide Tenant as of the end of each Calendar Year
with a yearly accounting showing the beginning and ending balance of the aggregate impounds
paid by Tenant and the Taxes paid therefrom for the Property paid by Landlord.
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5.3 Operating Expense Amount. Tenant shall pay to Landlord as Rent, in addition to
the Base Rent and the Tax Amount, an amount (the “Operating Expense Amount”) equal to the Operating
Expenses. Tenant shall pay to Landlord the Operating Expense Amount with respect to each Calendar
Year in monthly installments, at the same time and place as Base Rent is to be paid, in an amount
reasonably estimated from time to time by Landlord by a written notice to Tenant (the “Estimated
Operating Expense Payments”). Landlord shall deliver to Tenant as soon as practical after the
close of each Calendar Year (including the Calendar Year in which this Lease terminates) a
statement showing the amount of the Operating Expenses for such Calendar Year and the Operating
Expense Amount. If the Estimated Operating Expense Payments paid by Tenant during any Calendar
Year are less than the Operating Expense Amount for such Calendar Year, Tenant shall pay any
deficiency to Landlord as shown by such statement within thirty (30) days after receipt of such
statement. If the Estimated Operating Expense Payments paid by Tenant during any Calendar Year
exceed the Operating Expense Amount due from Tenant for such Calendar Year, such excess shall be
credited against payments next due hereunder. If no such payments are next due, such excess shall
be refunded by Landlord. Landlord’s failure to deliver an annual statement of the Operating
Expenses for any Calendar Year shall not constitute a waiver or release of, or relieve Tenant from,
its obligations under this Subsection.
5.4 Tenant’s Audit Right. During the 270-day period immediately following Landlord’s
delivery of any annual statement relating to Operating Expenses, Tenant shall have the right to
inspect Landlord’s accounting records relating thereto (as applicable to the statement delivered)
at Landlord’s or its agent’s office, upon reasonable prior notice. Unless Tenant shall take
written exception to any item in any such statement within said 270-day period, such statement
shall be considered as final and accepted by Tenant. Any payment due to Landlord or credit or
payment due to “Tenant as shown on any such statement shall be paid or applied in the manner and
within the time periods described in Section 5.3 above, whether or not written exception is
taken thereto, provided that such payment or application shall be without prejudice to any such
written exception. If Tenant makes such timely written exception, a certification as to the proper
amount of the Operating Expense Amount shall be made by an independent accountant reasonably
acceptable to both parties, which shall be final and conclusive. Tenant shall pay the accountant’s
fees in connection with such audit and certification unless it is determined that Landlord’s
original determination of the Operating Expense Amount was overstated by more than four percent
(4%), in which case, Landlord shall pay such accountant’s fees.
5.5 Survival. Without limiting any other obligations of Tenant which shall survive
the expiration of the Term or a termination of Tenant’s right of possession, the obligations of
Tenant to pay the Additional Rent provided for in this Section 5 shall survive the
expiration of the Term or a termination of Tenant’s right of possession.
6. SERVICES. As long as Tenant is not in default under this Lease, after expiration
of any applicable grace or cure period, if any, Landlord shall furnish the following services, and
the cost thereof shall be deemed Operating Expenses:
(a) Repairs and maintenance (and if necessary, replacements) of heating,
ventilating and air conditioning systems (the “HVAC Systems”) providing service to the
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Premises. Notwithstanding anything contained herein to the contrary, if any
repairs, maintenance or replacements are necessitated by the negligent act or omission of
Tenant, its agents, servants or employees, then the cost thereof shall be billed directly to
Tenant, and Tenant shall pay Landlord therefor within fifteen (15) days after receiving such
xxxx. Such HVAC Systems shall at all times be operable by Tenant.
(b) Domestic water and refuse disposal service. In the event that Tenant uses
or requires a materially greater amount of water or refuse disposal service than the usual
and ordinary office use of either of such services, then Landlord may xxxx Tenant for the
additional cost of such increased use and Tenant shall pay Landlord therefor within thirty
(30) days after receiving such xxxx.
(c) Exterior window washing of all windows in the Premises, weather permitting, at
intervals to be reasonably determined by Landlord, but not less than three (3) times within
a Calendar Year.
Landlord shall arrange with the public utility companies providing the Building with
electricity and natural gas service and telephone, for the supply of such services to the Premises.
Tenant shall pay the public utility companies and/or municipality directly for any services
provided to the Premises. Tenant shall bear the cost of maintaining light fixtures and replacing
bulbs, tubes, and ballasts in the Premises. Tenant shall be responsible, at Tenant’s cost, for
extending and distributing Tenant’s telephone lines throughout the Building.
Landlord shall not be obligated to provide any services other than those expressly set forth
above in this Section. Landlord does not warrant that any of the services mentioned above will be
free from interruptions caused by repairs, improvements or alterations of equipment, or by war,
insurrection, civil commotion, acts of God or governmental action, strikes, lockouts, picketing,
whether legal or illegal, accidents, inability of Landlord to obtain fuel or supplies, or any other
cause or causes beyond Landlord’s reasonable control. Any interruption of service attributable to
a cause beyond Landlord’s reasonable control shall not be deemed an eviction (actual or
constructive) or a disturbance of Tenant’s use and possession of the Premises or any part thereof,
and shall not render Landlord liable to Tenant for damages or relieve Tenant from performance of
Tenant’s obligations under this Lease. Tenant shall have the right of access to the Premises
twenty four (24) hours per day, seven (7) days per week during the Term of this Lease.
7. SECURITY DEPOSIT. INTENTIONALLY DELETED
8. USE. Tenant shall use and occupy the Premises for general office purposes and for
no other purpose, unless otherwise expressly consented to in writing by Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Tenant shall not use or occupy the
Premises, or permit the Premises to be used or occupied contrary to or in violation of any Laws or
any covenant, condition or restriction of record, or in any manner which would: (i) cause
structural injury to the Building; (ii) invalidate any insurance policy affecting the Building;
(iii) increase the amount of premiums for any insurance policy affecting the Building; (iv) affect
any certificate of occupancy affecting the Building; (v) be dangerous to persons or property; or
(vi) create a nuisance, or disturb any other occupant of the Building;
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9. CONDITION OF PREMISES. Subject to the completion of any items set forth on the
punch list to be prepared under Section 4 of the Work Letter, Landlord represents and
warrants to Tenant to the best of its actual knowledge, that the Premises will be in good, clean
and sanitary order and good repair and in first class condition and at the Commencement Date will
be free from defects in materials and workmanship other than latent defects in the Tenant
Improvements or the Building of which Landlord is notified within one (1) year after the
Commencement Date. If within one (1) year after the Commencement Date, Landlord receives written
notice of any latent defects in the Tenant Improvements or the Building, Landlord shall, as soon as
is commercially reasonable, at its sole cost and expense, correct any such latent defects
identified in such written notice. No promise of Landlord to alter, remodel or improve the
Building and no representation respecting the condition of the Building has been made by Landlord
to Tenant other than as may be contained herein or in the Work Letter.
10. EARLY POSSESSION. If Tenant takes possession of all or any part of the Premises
prior to the Commencement Date, all of the covenants and conditions of this Lease shall be binding
upon the parties hereto the same as if the Commencement Date had been fixed as of the date when
Tenant took such possession, and Tenant shall pay to Landlord as Rent for the period prior to the
Commencement Date, a proportionate amount of the Rent as set forth in this Lease based upon the
portion of the Premises of which Tenant has taken possession.
11. ASSIGNMENT AND SUBLETTING.
11.1 Prohibitions. Subject to the provisions contained in Section 11.5
hereof, Tenant shall not, without the prior written consent of Landlord: (a) assign this Lease or
any possessory interest hereunder other than to an Affiliate (as defined below); (b) permit any
assignment of Tenant’s interest herein by operation of law or otherwise; (c) sublet the Premises or
any part thereof other than to an Affiliate; or (d) permit the use of the Premises by any parties
other than Tenant, its agents and employees. Any assignment to an Affiliate or Landlord’s consent
to any assignment, subletting or transfer, or Landlord’s election to accept any assignee, sublessee
or transferee as Tenant hereunder, shall not release the original Tenant from any covenant or
obligation under this Lease. Landlord’s consent to any assignment or subletting shall not
constitute a waiver of Landlord’s right to consent to any future assignment or subletting. For
purposes of this Lease, an “Affiliate” shall mean any person or entity controlling, controlled by
or under common control with Tenant. For purposes hereof, “control” shall mean the ownership of
not less than fifty-one percent (51%) of the economic ownership interests in an entity, along with
the power to control the management and policy-making decisions of such entity. In the case of any
assignment permitted hereunder (whether to an Affiliate or otherwise), the assignee shall assume in
writing and agree to keep and perform all of the terms of this Lease on the part of Tenant to be
kept and performed, and prior to the effective date of any such assignment, Landlord shall receive
a fully-executed original of such assignment and assumption agreement, in form and substance
reasonably acceptable to Landlord.
11.2 Notice to Landlord. Tenant shall give Landlord written notice of any proposed
sublease or assignment at least thirty (30) (ten (10) business days if to an Affiliate) days prior
to the effective date of such proposed sublease or assignment. Such notice shall contain the name
of the proposed sublessee or assignee, a copy of the proposed sublease or assignment document, a
description of the intended use of the Premises by the proposed sublessee or assignee, and such
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other information as Landlord may reasonably request to evaluate the character, reputation and
credit worthiness of the proposed assignee or sublessee.
11.3 Receipts. Without limitation of any other provision hereof, should Tenant assign
this Lease or sublet the Property to an Affiliate or to a person or entity otherwise requiring the
consent of Landlord, Tenant shall have the right to one hundred percent (100%) of the receipts
derived by Tenant from time to time attributable to the assignment or sublease.
11.4 Transfer of Ownership Interests in Tenant. If Tenant is a partnership or a
corporation whose partnership interests or stock are not publicly traded, any event or transaction
or series of events or transactions resulting in a transfer of control of Tenant shall be deemed to
be a voluntary assignment of this Lease by Tenant and shall be subject to the provisions of this
Section 11 provided, however, that the transfer of ownership interests among the current
owners of Tenant shall be excluded herefrom, provided, further, however, that the commercial credit
of Tenant as reasonably determined by Landlord in accordance with its practices then utilized for
tenants similarly situated is not materially and adversely impacted. For purposes of this
Section 11.4 the term “control” means the ownership of not less than fifty-one percent
(51.0%) of the economic interests in an entity, along with the power to control the management and
policy-making decisions of such entity. Prior to the transfer of ownership interests in Tenant
which results in the transfer of control by Tenant, Tenant shall provide Landlord ten (10) business
days prior written notice of all proposed transfers and Landlord’s consent to such transfer where
required shall not be unreasonably withheld, conditioned or delayed, provided, however, if Landlord
fails to respond to any request by Tenant for Landlord’s consent within five (5) days of Tenant
furnishing the information required by Section 11.2 hereof to Landlord, the consent of
Landlord shall be presumed to be given.
11.5 Consent. Consent by Landlord to the assignment, subletting or use of the
Premises by any party other than Tenant which is required pursuant to the provisions contained in
Section 11.1 hereof shall not be unreasonably withheld, conditioned or delayed, provided,
however, if Landlord fails to respond to any request by Tenant for Landlord’s consent within ten
(10) business days of Tenant furnishing the information required by Section 11.2 hereof to
Landlord, the consent of Landlord shall be presumed to be given. Landlord’s review and consent
when required shall be premised upon, among other things, the assignee’s or subtenant’s (a)
intended use of the Premises, (b) financial condition and projections, (c) its reputation in its
industry, and (d) its business experience.
11.6 Landlord’s Costs. Tenant shall pay to Landlord as Additional Rent hereunder all
reasonable costs and expenses (including, without limitation, reasonable attorneys’ fees) paid or
incurred by Landlord in connection with any proposed assignment or subletting hereunder, regardless
of whether Landlord withholds or grants its consent to such assignment or subletting.
11.7 Tenant Financing. Tenant shall have the absolute right from time to time during
the Term and without Landlord’s consent, written or otherwise, to grant a mortgage or other
security interest in Tenant’s interest in this Lease in connection with any financing required by
it in the operation of its business. In the event Tenant grants a security in Tenant’s interest in
this Lease, Tenant shall provide Landlord with written notice thereof. Landlord agrees to execute
such confirmation certificates and other documents as Tenant’s lenders may reasonably request
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in connection with any such financing. In no event shall Tenant’s hypothecation of its
interest in this Lease serve as to cancel this Lease or Tenant’s obligations under this Lease. Any
and all of Tenant’s lenders shall be subject to the terms and conditions of this Lease. Tenant’s
lenders shall be subject to any and all prior, current and future rights, obligations, duties and
defaults of Tenant under this Lease upon any foreclosure of the mortgage, deed in lieu of
foreclosure or other security interest in Tenant’s interest in this Lease.
12. REPAIRS AND ALTERATIONS.
12.1 Tenant’s Repair Obligations. Tenant will, at its own expense, keep the Premises
in good condition and repair during the Term, and Tenant shall promptly and adequately repair all
damage to the Premises and replace or repair all damaged or broken glass, fixtures, equipment,
improvements and appurtenances, within any reasonable period of time specified by Landlord;
provided, however, that Tenant shall not be obligated to repair or replace the Structural
Components or the HVAC Systems servicing the Premises; such items being the sole responsibility of
Landlord. If Tenant does not fulfill its obligations under this Section 12.1, Landlord
may, but need not, make such repairs and replacements, and Tenant shall pay Landlord the cost
thereof, plus an additional eight percent (8%) to cover Landlord’s overhead and related expenses,
forthwith upon being billed for same. Landlord may enter the Premises at all reasonable times to
make such repairs and replacements and any other repairs, alterations, improvements and additions
to the Premises or to the Building or to any equipment located in the Building. Notwithstanding
anything contained herein to the contrary, if any damage to the Premises or the Property or to any
equipment thereon or appurtenance thereto results from any act, omission or neglect of Tenant or of
Tenant’s contractors, agents or employees, Landlord may, at Landlord’s option, repair such damage
and Tenant shall, upon demand by Landlord, reimburse Landlord forthwith for the total cost of such
repairs, plus an additional eight percent (8%) to cover Landlord’s overhead and related expenses.
12.2 Prohibition on Alterations. Tenant shall not, without the prior written consent
of Landlord, make any alterations, improvements or additions (collectively, “Alterations”) to the
Premises, which: (i) affects Structural Components of the Building; (ii) affects any HVAC Systems,
utility or mechanical systems or equipment in the Building; (iii) is visible from outside of the
Premises; (iv) costs more than $20,000.00 to complete (including all labor and material costs); or
(iv) requires a building permit to perform. Except as provided in the immediately preceding
sentence, Tenant may perform Alterations without Landlord’s consent. Landlord shall not
unreasonably withhold, condition or delay its consent to any Alterations when otherwise required
hereunder. Landlord’s consent to any Alterations when otherwise required hereunder (including,
without limitation, Landlord’s approval of Tenant’s plans, specifications or working drawings
therefor), shall impose no responsibility or liability on Landlord with respect to the
completeness, or design sufficiency thereof or the compliance thereof with all applicable Laws.
12.3 Performance of Alterations. The work necessary to make any Alterations requiring
Landlord’s consent pursuant to the provisions contained in Section 12.2 hereof (“Major
Alterations”) shall be performed by employees or contractors of Landlord, or, with Landlord’s prior
written consent, by contractors employed by Tenant and reasonably approved by Landlord. If Major
Alterations, are with Landlord consent performed by Tenant’s employees or contractors Tenant shall
deliver to Landlord, for its review and approval prior to commencing any such
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Major Alterations, copies of all contracts and subcontracts related to such Major Alterations,
and plans, working drawings and specifications necessary to perform such work. Major Alterations
shall be performed subject to any conditions reasonable under the circumstances as Landlord may
impose, including, without limitation, furnishing Landlord with security for the payment of all
costs to be incurred in connection with such Alterations and insurance against liabilities which
may arise therefrom, as reasonably determined by Landlord. All Alterations performed by Tenant or
its contractors shall be done in a workmanlike manner using only good grades of materials and shall
comply with all insurance requirements and all Laws. Tenant shall permit Landlord to review and
inspect all Alterations during construction. Tenant shall promptly pay to Tenant’s contractors,
when due, the cost of all work and of all decorating required in connection with any Alterations,
and all supervising fees, and upon completion of the Alterations, Tenant shall deliver to Landlord
evidence of payment and full and final waivers of all liens for labor, services or materials.
Except to the extent caused by Landlord’s gross negligence or willful misconduct, Tenant shall
indemnify, defend and hold Landlord and its partners and their respective officers, shareholders,
directors, partners, agents and employees (collectively, the “Landlord Parties”) harmless from all
claims, causes of action, liabilities, losses, costs, damages, liens and expenses related to any
Alterations performed by Tenant’s employees or contractors. Tenant shall pay to Landlord all
reasonable costs and expenses incurred by Landlord for Landlord’s review and approval of any Major
Alterations performed by Tenant’s employees or contractors in accordance with this Section
12.3.
12.4 Emergency Repairs to Structural Components. In the event any defect in or
disrepair of the Structural Components or HVAC Systems causes imminent danger to the business,
employees or invitees of Tenant or subject the Tenant Improvements or other Tenant property to
imminent harm, and provided that Landlord does not correct such deficiencies or cause such repairs
after reasonable attempts to notify Landlord or Landlord’s property manager thereof (if the
emergency allows time for such notice) in a manner consistent with limiting such exposure to
Tenant, then, in such event, Tenant may correct the defects in or make the repairs to the
Structural Components or HVAC Systems and Landlord shall pay Tenant the cost thereof within fifteen
(15) days after receiving the invoice therefor.
13. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the following rights,
exercisable without notice (except as expressly provided below in this Section) and without
liability to Tenant for damage or injury to property, person or business, and without effecting an
eviction, construction or actual, or disturbance of Tenant’s use or possession of the Premises or
giving rise to any claim for set-off or abatement of Rent:
(a) To change the street address of the Building; provided, however, that if the street
address of the Building is changed and such change is not required by a governmental body or
authority (including, without limitation, the City of Waukegan or the United States Postal
Service), Landlord shall reimburse Tenant for all reasonable, out-of-pocket expenses
incurred by Tenant in changing Tenant’s stationary and marketing materials and providing
proper notification thereof in the ordinary course, to the extent reasonably required as a
result of such address change;
(b) To reasonably approve, prior to installation, window shades, blinds, drapes,
awnings, window ventilators and other similar equipment and lighting which are
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visible from the exterior of the Premises as being compatible with those used by
buildings similarly situated;
(c) To show the Premises to prospective tenants at reasonable hours during the last
nine (9) months of the Term (but not after a Renewal Option is exercised for a Renewal Term)
and, if vacated during such year, to prepare the Premises for re-occupancy, and to show the
Premises to prospective purchasers and lenders of the Building at reasonable hours upon
reasonable prior verbal notice at any time during the Term;
(d) To retain at all times, and to use in appropriate emergency instances, keys to all
doors within and into the Premises. No locks shall be changed without the prior written
consent of Landlord;
(e) To decorate or to make repairs, alterations, additions or improvements, whether
structural or otherwise, in and about the Property or the Building, or any part of any
thereof, and for such purposes to enter upon the Premises upon reasonable prior verbal
notice (except in an emergency, in which case no notice shall be necessary), and, during the
continuance of any such work, to temporarily close roads, drives, doors, entryways, public
space and corridors in the Property or the Building, and to interrupt or suspend temporarily
Building services and facilities, all without abatement of Rent or affecting any of Tenant’s
obligations hereunder, so long as the Premises are reasonably accessible and such suspension
or interruption or the length thereof does not materially affect the conduct of Tenant’s
business. If the Premises or any material portion thereof is not reasonably accessible or
such work materially affects Tenant’s business as a result of Landlord’s exercise of its
rights under this subsection, and the length of such suspension or interruption is of a
temporary nature for a reasonable period of time under the circumstances, as Tenant’s sole
and exclusive remedy on account thereof, Rent shall xxxxx on a per diem basis for each day
the Premises, or such material portion thereof, is not reasonably accessible or Tenant’s
business is materially affected; provided, however, that if only a material portion of the
Premises is not reasonably accessible, the per diem abatement of Rent shall be equitably
determined, which in most cases would be in an amount bearing the same ratio to the total
amount of per diem Rent as the inaccessible portion of the Premises bears to the entire
Premises;
(f) To have and retain a paramount title to the Premises free and clear of any act of
Tenant purporting to burden or encumber it;
(g) To prohibit the placing of vending or dispensing machines of any kind in or about
the Premises, except for vending or dispensing machines for the sole use of Tenant, its
employees and invitees.
14. COVENANT AGAINST LIENS. Tenant covenants and agrees not to suffer or permit any
lien of mechanics or materialmen to be placed against the Property, the Building or the Premises,
and in the case of any such lien attaching, to pay off and remove or bond over any such lien to
Landlord’s satisfaction within fifteen (15) days after receiving notice thereof. If any such lien
attaches, and Tenant fails to remove or bond over such lien within said fifteen (15) day
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period, Landlord may, but shall not be obligated to, pay the amount necessary to remove such
lien without being responsible for making an investigation as to the validity or accuracy thereof,
and the amount so paid, together with all costs and expenses (including, without limitation,
reasonable attorneys’ fees) incurred by Landlord in connection therewith, shall be deemed
Additional Rent hereunder, payable within fifteen (15) days after notification thereof to Tenant.
Tenant has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever,
whether created by act of Tenant, operation of law or otherwise, to attach to or be placed upon
Landlord’s title or interest in the Property, the Building or the Premises, and any and all liens
and encumbrances created by Tenant shall attach to Tenant’s interest only.
15. WAIVERS AND INDEMNITIES.
15.1 Tenant’s Waiver. Except to the extent caused by Landlord’s or Landlord’s
Parties’ negligence or willful misconduct or its failure to comply with its obligations hereunder,
Tenant waives all claims it may have against the Landlord or Landlord Parties for any damage either
to person or property or loss of business due to the Property, the Premises or any part of any
thereof or any appurtenances thereto or improvements thereon not being in good condition or
becoming out of repair, or due to the happening of any accident in or about the Property or the
Premises or due to any act or neglect of Tenant, its officers, directors, employees, agents or
invitees. This provision shall apply particularly (but not exclusively) to damage caused by water,
snow, frost, steam, sewage, gas, faucets and plumbing fixtures. Landlord further agrees that all
Tenants’ property upon the Premises or the Property shall be there at the risk of Tenant only and
that Landlord shall not be liable for any damage thereto or theft thereof, unless such loss was
caused by Landlord’s or Landlord’s Parties’ negligence or willful misconduct or by the failure of
the Landlord to fulfill its obligations hereunder.
15.2 Tenant’s Indemnification. Subject to Section 18.1 hereof, Tenant hereby
agrees to indemnify, defend and hold harmless the Landlord Parties from and against any claims or
liability for damage to person or property (or for loss or misappropriation of property) occurring
in or on the Property or the Premises, arising from any breach or default on the part of Tenant
under this Lease, or from any negligent act or omission of Tenant or any employee, agent, servant,
invitee or contractor of Tenant, or from Tenant’s operations or activities on or use of the
Property or the Premises, and from any cost relating thereto (including, without limitation,
reasonable attorneys’ fees).
15.3 Landlord’s Waiver. Except to the extent caused by the negligence or willful
misconduct of Tenant or its agents, contractors or employees, or a breach or default by Tenant of
its obligations hereunder, Landlord waives all claims it may have against Tenant for any damage
either to person or property or loss of business due to the Property, the Premises or any part
thereof or any appurtenance thereto or improvements thereon not being in good condition or becoming
out of repair, or due to the happening of any accident in or about the Property or the Premises.
15.4 Landlord’s Indemnification. Subject to Section 18.1 hereof, Landlord
hereby agrees to indemnify, defend and hold harmless Tenant, its shareholders, officers, directors,
employees and agents from and against any claims or liability brought against or imposed upon
Tenant for damage to person or property (or for loss or misappropriation of property) occurring
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in or on the Property or the Premises, arising from any breach or default on the part of
Landlord under this Lease, or from any negligent act or omission of Landlord or any employee,
agent, servant, or contractor of Landlord, and from any cost relating thereto (including, without
limitation, reasonable attorneys’ fees).
15.5 No Implicit Waivers. No waiver of any condition expressed in this Lease shall be
implied by any neglect of Landlord 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. Absent a written agreement to the contrary, no receipt of
moneys by Landlord from Tenant after the termination in any way of the Term 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 of 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 said Rent shall not
waive or affect said notice, suit or judgment absent a written agreement to the contrary.
16. DEFAULTS AND LANDLORD’S REMEDIES.
16.1 Defaults. It shall be a default under this Lease if: (i) Tenant fails to pay,
when due, Rent or any installment thereof or any other sum required to be paid by Tenant under this
Lease, and such failure continues for more than ten (10) days; (ii) Tenant fails to observe or
perform any of the other covenants, conditions or obligations which Tenant is required to observe
or perform under this Lease, and such failure continues for more than thirty (30) days after notice
thereof to Tenant (unless such failure shall give rise to a hazardous condition requiring an
immediate cure, in which case, no notice is necessary and no cure period shall be allowed);
provided, however, that Landlord shall not be entitled to exercise its remedies on account of any
default described in this clause (ii) if (a) such default cannot reasonably be cured within thirty
(30) days, (b) Tenant commences to cure such default within said thirty (30) day period and
thereafter diligently and continuously proceeds with such cure, and (c) Tenant cures such default
within a reasonable period of time not to exceed seventy-five (75) days after Landlord’s notice of
such default; (iii) the interest of Tenant in this Lease is levied on under execution or other
legal process; (iv) an Event of Bankruptcy (as defined below) occurs; or (v) Tenant dissolves or
ceases to exist. For purposes of this Lease, “Events of Bankruptcy” means the occurrence of any
one or more of the following events or circumstances:
(a) If Tenant shall file in any court a petition in bankruptcy or insolvency or for
reorganization within the meaning of the Federal Bankruptcy Code, or for arrangement within
the meaning of such Code (or for reorganization or arrangement under any future bankruptcy
or reform act for the same or similar relief), or for the appointment of a receiver or
trustee of all or a portion of the property of Tenant, or
(b) If an involuntary petition shall be filed against Tenant, and such petition shall
not be vacated or withdrawn within sixty (60) days after the date of filing thereof, or
(c) If Tenant shall make an assignment for the benefit of creditors, or
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(d) If Tenant shall be adjudicated a bankrupt or shall admit in writing an inability to
pay its debts as they become due, or
(e) If a receiver shall be appointed for the property of Tenant by order of court of
competent jurisdiction (except where such receiver shall be appointed in an involuntary
proceeding and be withdrawn within sixty (60) days from the date of his appointment).
16.2 Landlord’s Remedies. Upon a default under this Lease, Landlord at its option
may, without notice or demand of any kind to Tenant, exercise 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 operation of law and be entitled to recover
forthwith as damages a sum of money equal to all Rent accrued and unpaid for the period up
to and including the date of termination, plus as final and liquidated damages (and not as a
penalty) Landlord’s reasonable estimate of the present value of (i) the amount of Rent that
would be payable from the date of such termination through the balance of the scheduled
Term, less (ii) the fair rental value of the Premises for said period (taking into
consideration the time to relet the Premises, and taking into consideration and reducing
said fair rental value by, the reasonable cost of reletting and retrofitting the Premises),
plus any other sum of money and damages owed by Tenant to Landlord, but reduced by any
amounts to be refunded by Landlord to Tenant under Sections 5.2 or 5.3
hereof.
(b) Landlord may terminate Tenant’s right of possession and may repossess the Premises
by forcible entry or detainer suit, and without terminating this Lease, in which event
Landlord shall use its best efforts to relet the Premises, for such rent and upon such terms
as shall be commercially reasonable under the circumstances. For the purpose of such
reletting, Landlord is authorized to decorate and make any reasonable repairs, changes,
alterations or additions in or to the Premises that may be necessary or appropriate, and
Tenant shall, upon written demand, pay the cost thereof. If Landlord shall fail to relet
the Premises, or if the Premises are relet and a sufficient sum shall not be realized from
such reletting to pay all of the costs and expenses: (i) of such decoration, repairs,
changes, alterations and additions, (ii) of such reletting (including, without limitation,
all reasonable brokerage, advertising, and legal expenses), and (iii) the collection of the
Rent accruing therefrom, and to satisfy the Rent provided for in this Lease, 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, or, if the Premises have been relet, Tenant shall satisfy
and pay any such deficiency upon demand therefor from time to time as the same shall
otherwise become due hereunder. Tenant agrees that Landlord may file suit to recover any
sums failing due under the terms of this subsection (b) from time to time and that no suit
or recovery of any portion due Landlord hereunder shall be any defense to any subsequent
action brought for any amount not theretofore reduced to judgment in favor of Landlord. To
the extent required by law, Landlord agrees to mitigate its damages.
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If Tenant shall be in material default in any of its obligations hereunder at any time daring the
Term of the Lease, but not including any Renewal Term, then the Rent otherwise accruing during the
Free Rent Period shall immediately become due and payable.
17. SURRENDER OF POSSESSION.
17.1 Condition of Premises. At the termination of this Lease by lapse of time or
otherwise, or upon termination of Tenant’s right of possession without terminating this Lease,
Tenant shall surrender possession of the Premises to Landlord and deliver all keys to the Premises
to Landlord, and shall return the Premises and all equipment and fixtures of Landlord to Landlord
in as good condition as when Tenant originally took possession, ordinary wear, loss or damage by
fire or other casualty not the fault of Tenant or insured casualty and damage resulting from the
act of Landlord or any other of its employees and agents or other tenants of the Property excepted,
failing which Landlord may restore the Premises and such equipment and fixtures to such condition
and Tenant shall pay the reasonable cost thereof to Landlord on demand. All Alterations, whether
temporary or permanent in character, made by Landlord or Tenant in or upon the Premises shall
become Landlord’s property, and unless Landlord requests their removal, shall remain upon the
Premises at the termination of this Lease by lapse of time or otherwise or upon a termination of
Tenant’s right of possession, without compensation to Tenant, excepting, however, Tenant’s movable
office furniture, trade fixtures, office equipment and special lighting fixtures, provided that
they may be removed without permanent structural damage to the Building. If Tenant does not remove
such property upon the expiration or earlier termination of this Lease, or upon the termination of
Tenant’s right of possession, at Landlord’s election Tenant shall be conclusively presumed to have
forever abandoned such property, and without accepting title thereto, Landlord may, at Tenant’s
expense, remove, store, destroy, discard or otherwise dispose of all or any part thereof without
incurring liability to Tenant or to any other person, and Tenant shall pay Landlord upon demand the
expenses incurred in taking such actions. Tenant’s obligations under this Section 17.1
shall survive the expiration or earlier termination of the Term or a termination of Tenant’s right
of possession.
17.2 Holding Over. If Tenant retains possession of the Premises or any part thereof
after the termination of this Lease, whether by lapse of time or otherwise, or after a termination
of Tenant’s right of possession, then Landlord may, at Landlord’s sole election at any time after
the termination of this Lease or Tenant’s right of possession, serve written notice on Tenant that
such holding over constitutes either: (i) the creation of a month-to-month tenancy upon each of the
terms herein provided as may be applicable to such month-to-month tenancy, except that Tenant shall
pay to Landlord Base Rent for each month or portion thereof in the amount set forth below, plus all
Additional Rent coming due during such period, or (ii) the creation of a tenancy at sufferance upon
each of the terms herein provided as may be applicable to such tenancy at sufferance, except that
Tenant shall pay to Landlord a per diem rent equal to the per diem Base Rent set forth below, plus
the per diem amount of all Additional Rent. If no written notice is served by Landlord, then a
tenancy at sufferance with Rent as stated in (ii) above shall have been created. The provisions of
this Section shall not operate as a waiver by Landlord of any right of re-entry herein provided.
In addition to and not in limitation of all other remedies set forth in this Section, Tenant shall
be liable for all damages (consequential as well as direct) sustained by Landlord on account of
Tenant’s holding over. Base Rent payable during any holding over shall be as follows:
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(i) during the first sixty (60) days following the termination of this Lease or the
termination of Tenant’s right of possession, one hundred fifty percent (150%) of the Base
Rent for the calendar month immediately preceding the termination date of this Lease or the
termination of Tenant’s right of possession; and
(ii) from and after the sixty-first (61st) day following the termination of this Lease
or the termination of Tenant’s right of possession, two hundred percent (200%) of the Base
Rent for the calendar month immediately preceding the termination date of this Lease or the
termination of Tenant’s right of possession.
18. INSURANCE.
18.1 Liability Insurance. During the Lease Term, Tenant shall maintain a policy of
commercial general liability insurance (sometimes known as broad form comprehensive general
liability insurance) insuring Tenant against liability for bodily injury, property damage
(including loss of use of property) and personal injury arising out of the operation, use or
occupancy of the Property. Tenant shall name Landlord as an additional insured under such policy.
The initial amount of such insurance shall be ONE MILLION DOLLARS ($1,000,000.00) per occurrence /
THREE MILLION DOLLARS ($3,000,000.00) aggregate and shall be subject to periodic increases based
upon inflation, increased liability awards, recommendation of Landlord’s professional insurance
advisers and other relevant factors provided that such increases are commercially reasonable and
are approved by Tenant, which approval shall not be unreasonably withheld or delayed. The
liability insurance obtained by Tenant under this Section 18.1 shall (i) be primary and
non-contributing and (ii) contain cross-liability endorsements. The amount and coverage of such
insurance shall not limit Tenant’s liability nor relieve Tenant of any other obligations under this
Lease. Landlord may also obtain comprehensive public liability insurance in an amount and with
coverage determined by Landlord insuring Landlord against liability arising out of ownership,
operation, use or occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance.
18.2 “All Risks” Insurance. During the Term, Tenant shall maintain a policy of
insurance against “all risks” of physical loss for the full insurable replacement value of the
initial build-out of the Premises (including without limitation, the Tenant Improvements (as
defined in the Work Letter), and all Alterations, and of all furniture, trade fixtures, equipment,
merchandise and all other items of Tenant’s property on the Premises.
18.3 Worker’s Compensation Insurance. During the Term, Tenant shall maintain a policy
of Worker’s Compensation Insurance in amounts required by the State of Illinois, including
Voluntary Compensation, Broad Form All States Endorsement.
18.4 Automobile Liability Insurance. During the Term, Tenant shall maintain a policy
of Automobile Liability Insurance with limits for bodily injury or personal injury to or death of
any person, or more than one (1) person, or for damage to property in an amount of not less than
$1,000,000 combined single limit, including Employer’s Owned, Non-Owned and Hired Car coverage.
- 17 -
18.5 Property and Rental Income Insurance. During the Term, Landlord shall maintain
policies of insurance covering loss of or damage to the property in the full amount of its
replacement value. Such policy shall contain an inflation Guard Endorsement and shall provide
protection against all perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils (all risk), sprinkler leakage, boiler
coverage and any other perils which Landlord deems reasonably necessary. Landlord shall have the
right to obtain flood and earthquake insurance if required by any lender holding a security
interest in the Property. Landlord shall not obtain insurance for Tenant’s fixtures or equipment
or building improvements installed by Tenant on the Property. During the Lease Term, Landlord
shall also maintain a rental income insurance policy, with loss payable to Landlord, in an amount
equal to one (1) year’s Base Rent, plus estimated real property taxes and insurance premiums.
Tenant shall be liable for the payment of any deductible amount under Landlord’s or Tenant’s
insurance policies maintained pursuant to this Section 18 in amounts commercially
reasonable for similarly situated properties. Tenant shall not do or permit anything to be done
which invalidates any such insurance policies.
18.6 Payment of Premiums. Tenant shall pay all premiums for the insurance policies
described in Sections 18.1-18.5, inclusive, except Landlord shall pay all premiums for
non-primary comprehensive public liability insurance which Landlord elects to obtain as provided in
Section 18.1. If insurance policies maintained by Landlord cover improvements on real
property other than the Property, Landlord shall deliver to Tenant a statement of the premium
applicable to the Property showing in reasonable detail how Tenant’s share of the premium was
computed. If the Lease Term expires before the expiration of an insurance policy maintained by
Landlord, Tenant shall be liable for Tenant’s prorated share of the insurance premiums. Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of insurance which Tenant
is required to maintain under this Section 18. At least thirty (30) days prior to the
expiration of any such policy, Tenant shall deliver to Landlord a renewal of such policy as an
alternative to providing a policy of insurance. Tenant shall have the right to provide Landlord a
certificate of insurance, executed by an authorized officer of the insurance company, showing that
the insurance which Tenant is required to maintain under this Section 18 is in full force
and effect and containing such other information which Landlord reasonably requires.
18.7 General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this Lease shall include
(to the extent reasonably obtainable) a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days written notice prior to any cancellation or
modification of such coverage.
(ii) If Tenant fails to deliver a policy, certificate or renewal to Landlord required
under this Lease within the prescribed time period or if any such policy is canceled or
modified during the Lease Term without Landlord’s consent, Landlord may obtain such
insurance, in which case Tenant shall reimburse Landlord for the cost of such insurance
within fifteen (15) days after receipt of a reasonably documented statement that indicates
the cost of such insurance.
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(iii) Tenant shall maintain all insurance required under this Lease with companies
holding a “General Policy Rating” of A-12 or better, as set forth in the most current issue
of “Best Key Rating Guide”. Landlord and Tenant acknowledge the insurance markets are
rapidly changing and that insurance in the form and amounts described in this Section
18 may not be available in the future. Tenant acknowledges that the insurance described
in this Section 18 is for the primary benefit of Landlord. If at any time during
the Lease Term, Tenant is unable to maintain the insurance required under the Lease, Tenant
shall nevertheless maintain insurance coverage which is customary and commercially
reasonable in the insurance industry for Tenant’s type of business, as that coverage may
change from time to time. Landlord makes no representation as to the adequacy of such
insurance to protect Landlord’s or Tenant’s interests. Therefore, Tenant shall obtain any
such additional property or liability insurance which Tenant deems necessary to protect
Landlord and Tenant.
(iv) Unless prohibited under any applicable insurance policies maintained, Landlord and
Tenant each hereby waive any and all rights of recovery against the other, or against the
officers, employees, agents or representatives of the other, and hereby release the other
from any and all liability for loss of or damage to its property or the property of others
under its control, if such loss or damage is covered by any Insurance policy in force
(whether or not described in this Lease), or required to be maintained by the terms of this
Lease (whether or not in force), at the time of such loss or damage. Upon obtaining the
required policies of insurance, Landlord and Tenant shall give notice to the insurance
carriers of this mutual waiver of subrogation.
19. FIRE OR CASUALTY. If the Premises is hereafter damaged, destroyed or rendered
partially untenable for its accustomed use, by fire or other casualty insured or which should have
been insured under the coverage Landlord is obligated to carry pursuant to Article 18 of
this Lease, then Landlord shall commence repair or replacement of the Premises soon as reasonably
practicable thereafter, but in any event within ninety (90) days after such casualty and, as soon
as reasonably practicable after commencement of such repair, in any event within two hundred forty
(240) days after commencement of such repair or replacement, restore the Premises to substantially
the same condition in which the Premises was immediately prior to the occurrence of the casualty,
exclusive of Tenant’s Alterations, furniture, fixtures and equipment, except as otherwise provided
in this Article. From the date of such casualty until the Property is so repaired and restored,
Rent and all other charges and items payable hereunder shall equitably xxxxx based upon the
interference with Tenant’s business operations at the Property so long as damage is not caused by
the gross negligence or willful misconduct of Tenant, its agents, employees, officers, licensees or
invitees. Notwithstanding the foregoing, if fifty percent (50%) or more of the Premises (based
upon the cost to replace the Premises so damaged or destroyed as compared with the market value of
the Premises immediately prior to such fire or other casualty, as shown by a certificate of
Landlord’s architect), is destroyed or rendered untenable by fire or other casualty during the last
Lease Year of the Term or the last Lease Year of any Extension Term of this Lease, then, provided
that Tenant has not during such Lease Year exercised the option to extend the Term for an Extension
Term, Landlord or Tenant shall have the right to terminate this Lease effective as of the date of
the casualty, by giving written notice of termination to the other within thirty (30) days of such
casualty. If said notice of termination is given within this thirty (30) day period this Lease
shall terminate and Rent and all other charges
- 19 -
shall xxxxx as aforesaid from the date of such casualty, and Landlord shall promptly repay to
Tenant any Rent paid in advance which has not been earned as of the date of such casualty. If said
notice is not given Landlord shall repair and replace the Property in the manner of aforesaid.
Notwithstanding anything hereinabove contained to the contrary, the obligation to repair and
restore only applies to the Building and improvements made pursuant to the Tenant Improvement
Allowance, as referenced in the Work Letter, and shall not cover Tenant’s property.
20. CONDEMNATION. If the whole or any part of the Building or any a portion of the
parking area on the Land which would render the remaining parking area insufficient to comply with
applicable zoning shall be taken or condemned by any competent authority for any public use or
purpose the Term, at the option of either Landlord or Tenant by notice to the other within sixty
(60) days of being notified of such condemnation, shall end upon the date when the possession of
the part so taken shall be required for such use or purpose, and current Rent shall be apportioned
as of the date of such termination. Tenant shall have no right to any apportionment of or share in
any condemnation award or judgment for damages made for the taking of any part of the Premises or
the Property, but may seek its own award for loss of or damage to Tenant’s business or its property
resulting from such taking or for relocation expenses. If both Landlord and Tenant elect not to
terminate this Lease, Tenant shall remain in that portion of the Premises or Building which shall
not have been appropriated or taken, and Landlord agrees, at Landlord’s cost and expense, to, as
soon as reasonably possible, restore the remaining portion of the Premises or Building to a
complete unit of like-quality and character as existed prior to such appropriation or taking, and,
thereafter, all Rent and payment obligations of Tenant shall be adjusted on an equitable basis,
taking into account the relative value of the portion taken and the portion remaining. For
purposes hereof; a voluntary sale or conveyance in lieu of condemnation, but under threat of
condemnation, shall be covered hereby.
21. NOTICES. All notices to be given by one party to the other under this Lease shall
be in writing (except as expressly provided herein to the contrary), sent by overnight courier for
next business day delivery, hand delivered, or sent by confirmed facsimile transmission as follows:
(a)
|
To Landlord: | Panattoni Development Company, LLC | ||
| 00000 X. Xxxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxxx Xxxxxx | ||||
| Fax: (000) 000-0000 | ||||
| with a copy to: | Panattoni Law Xxxx | |||
| 0000 Xxxxxxx Xxxx, Xxxxx X | ||||
| Xxxxxxxxxx, Xxxxxxxxxx 00000 | ||||
| Attention: Xxxxxx X. Xxxx | ||||
| Fax: (000) 000-0000 |
or to such other person or at such other address or to such other facsimile
telephone number designated by notice sent to Tenant.
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(b)
|
To Tenant: | Xxxxxxx Cable, Inc. 0000 Xxxxxxxx Xxxxx |
||
| Xxxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxx Xxxxxx | ||||
| Fax: (000) 000-0000 | ||||
| with a copy to: | Xxxxxx, Xxxxx & Samotny Ltd. | |||
| 000 Xxxxx Xxxxxx Xxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxx X. Xxxxxx, Esq. | ||||
| Fax: (000) 000-0000 |
or to such other person or at such other address or to such other facsimile
telephone number designated by notice sent to Landlord.
Notices sent by overnight courier shall be deemed to have been given one (1) business day after
delivery to the overnight courier, notices which are hand delivered shall be deemed to have been
given on the day tendered for delivery if before 5:00 p.m. Chicago time on a business day, and
notices sent by facsimile transmission shall be deemed to have been given on the day of
transmission as evidenced by the confirmation slip generated by the sender’s facsimile machine if
before 5:00 p.m. Chicago time on a business day.
22. ADDITIONAL COVENANTS OF TENANT. Tenant hereby covenants and agrees to comply
with, and to cause its employees, agents, clients, customers, invitees and guests to comply with,
the following provisions:
(a) Any sign, lettering, picture, notice, or advertisement installed within the
Premises shall be installed at Tenant’s expense and in compliance with all Laws. Moreover,
any advertising or signage on any exterior portion of the Premises or otherwise on the
Property will conform with the usual and customary practice in respect of Buildings
similarly situated in Lake County, Illinois.
(b) Tenant shall not place any radio or television antenna on the roof of the Building
or on any other part of the Property other than inside the Premises without the consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or delayed;
provided, however, Tenant may install a satellite dish or dishes in a place and manner
sufficient for obtaining optimal reception, or operate or permit to be operated any musical
or sound producing instrument or device inside or outside the Premises which may be heard
outside the Premises. Tenant shall not make noises, cause disturbances or vibrations or use
or operate any electrical or electronic devices or other devices that emit sound or other
waves or disturbances, or create odors, any of which may be offensive to other tenants and
occupants of the Building or that would interfere with the operation of any device or
equipment or radio or television broadcasting or reception from or within the Building or
elsewhere.
- 21 -
(c) Tenant shall not obstruct sidewalks or entrances in and about the Property. Tenant
shall not place objects against doors or windows which would be unsightly from the exterior
of the Building, and will promptly remove same upon notice from Landlord. Tenant shall
store and dispose of refuse as directed by Landlord, including, without limitation, storing
and disposing of all refuse in a neat and clean condition so as not to be visible to members
of the public and so as not to create any health or fire hazard.
(d) Tenant shall not make any room-to-room canvass to solicit business from other
tenants in the Building.
(e) Tenant shall not waste electricity or water and agrees to cooperate fully with
Landlord to assure the most effective operation of the Premise’s heating and air
conditioning systems, and shall not adjust any controls other than room thermostats
installed for Tenant’s use or take any action which could jeopardize the warranties covering
the heating, ventilating or air conditioning systems.
(f) Ten (10) door keys for doors in the Premises will be furnished on the Commencement
Date by Landlord. Tenant shall not affix additional locks on doors and shall purchase
duplicate keys only from Landlord. At the end of the Term or upon a termination of Tenant’s
right of possession, Tenant shall return all keys to Landlord and will disclose to Landlord
the combination of any safes, cabinets or vaults left in the Premises.
(g) Tenant assumes full responsibility for physically protecting the Premises from
theft, robbery and pilferage, which includes doors locked and other means of entry to the
Premises closed and secured.
(h) Peddlers, solicitors and beggars shall be reported promptly to Landlord.
(i) Tenant shall not install and operate machinery or any mechanical devices of a
nature not directly related to Tenant’s permitted use of the Premises.
(j) Tenant shall comply with all covenants, conditions and restrictions of record
encumbering or relating to the Property or any portion of either thereof (including, without
limitation, any declaration of covenants, conditions, restrictions and easements encumbering
the business park in which the Property is located), and with all rules and regulations
issued from time to time by Landlord or the Amhurst Lake Business Park Association.
(k) Tenant will not in any manner deface or injure the Property or any part of either
thereof or overload the floors of the Premises.
(l) Tenant will not use the Premises for lodging or sleeping purposes or for any
immoral or illegal purposes.
(m) Tenant shall not at any time manufacture, sell, use or give away, and shall not at
any time permit the manufacture, sale, use or gift of any spirituous, fermented,
intoxicating or alcoholic liquors on the Premises or the Property. Except for the serving
- 22 -
of food to Tenant’s employees, customers and business invitees at holiday parties or
otherwise and periodic, business meetings, Tenant shall not at any time sell, purchase or
serve, or permit the sale, purchase or service of, food to any of Tenant’s agents or
employees or any other parties on the Premises or the Property.
(n) In no event shall Tenant permit on the Property flammables or explosives or any
other article of an intrinsically dangerous nature. If by reason of Tenant’s failure to
comply with the provisions of this Subsection, any insurance coverage is jeopardized or
insurance premiums are increased, in addition to all other rights and remedies available to
Landlord upon a default by Tenant under this Lease, Landlord shall have the right to require
Tenant to make immediate payment of the increased insurance premium, if any.
(o) Tenant shall not introduce, use, handle, generate, treat, transport, store or
dispose of, or permit the introduction, use, handling, generation, treatment,
transportation, storage or disposal of any Hazardous Materials (as defined below) in, on,
under, to, from, around or about the Premises, the Building or the Property, except for
Hazardous Materials contained in products which are reasonably and customarily used in
general office uses, such as photocopy machine solutions and cleaning solvents, as long as
such Hazardous Materials are only used in compliance with all Laws (without the need for a
special permit) and all manufacturer’s and supplier’s instructions and recommendations, and
in quantities and for purposes which are reasonably and customarily used in general office
uses. Tenant shall indemnify, defend and hold harmless the Landlord Parties from and
against all fines, penalties, liens, suits, procedures, claims, demands, liabilities,
damages (including consequential damages), actions, causes of action, costs and expenses of
every kind and nature whatsoever (including, without limitation, reasonable attorneys’,
engineers’, experts’ and consultants’ fees and costs of testing, monitoring, remediation,
removal and cleanup), contingent or otherwise, known or unknown, incurred or imposed,
arising directly or indirectly out of or in any way connected with Tenant’s breach of the
covenants set forth in this Subsection 22 (o). Tenant’s obligations under the
immediately preceding sentence shall survive the expiration or earlier termination of this
Lease and a termination of Tenant’s right of possession. For purposes hereof, “Hazardous
Materials” shall mean (i) substances defined as “hazardous substances”, “toxic substances”
or “hazardous wastes” in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C., Sec. 9061, et. seq.), the Hazardous Materials
Transportation Act (49 U.S.C., Sec. 1802), the Resource Conservation and Recovery Act (42
U.S.C., Sec. 6901 et. seq.), the Toxic Substances Control Act of 1976, as amended (15
U.S.C., Sec. 2601, et. seq.) or in any other Laws now or hereafter in effect governing
similar matters, or in any regulations adopted or publications promulgated pursuant thereto;
(ii) asbestos and asbestos containing materials; and (iii) petroleum and petroleum based
products.
23. ESTOPPEL CERTIFICATES; SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT.
23.1 Estoppel Certificates. Tenant agrees that from time to time upon not less than
ten (10) business days prior request by Landlord or any mortgagee, Tenant will deliver to Landlord
or such mortgagee an estoppel certificate substantially in the form of Exhibit E
- 23 -
attached hereto and made a part hereof as modified to reflect the accuracy thereof. In the
event Tenant falls or refuses to deliver any such certificate within said 10-business day period,
and provided that delivery does not occur within five (5) business days after notice thereof by
Landlord, such failure or refusal shall be deemed to be a default hereunder and Landlord shall be
entitled to all rights and remedies available under this Lease.
23.2 Subordination, Non-Disturbance and Attornment. Upon written request of Landlord,
or any mortgagee or beneficiary of Landlord, Tenant will, in writing, subordinate its right
hereunder to the interest of any ground lessor of the Land upon which the Premises are situated and
to the lien of any mortgage or deed of trust, now or hereafter in force, against the Land and/or
Property of which the Premises are a part and to all advances made or hereafter to be made upon the
security thereof, provided that the ground lessor, or the mortgagee or trustee, as applicable,
named in said mortgage, trust deed or lease shall agree that Tenant’s peaceable possession of the
Premises and its rights under this Lease will not be diminished on account thereof, subject to the
otherwise applicable provisions contained herein. In the event (i) any proceedings are brought for
foreclosure, or (ii) of the exercise of the power of sale under any mortgage or deeds of trust,
then, upon any such foreclosure or sale, Tenant agrees to recognize such beneficiary or purchaser
as Landlord under this Lease, provided that Tenant’s right to possession continues unabated and
Tenant’s rights under this Lease continue undiminished, subject to the otherwise applicable
provisions contained herein. Landlord agrees to obtain a Subordination, Non-Disturbance and
Attornment Agreement from its current lender(s) and the ground lessor, if any, substantially in
accordance with the form attached hereto as Exhibit F (“SNDA”), and deliver same to Tenant
prior to the execution hereof or within thirty (30) days thereafter. If said SNDA from Landlord’s
current lender(s) and the ground lessor, if any, is not so delivered, Tenant may, at its option,
terminate this Lease by written notice to Landlord. In addition, Landlord agrees to obtain a SNDA
from any future lender within thirty (30) days after Landlord obtains financing from such lender;
provided that if such SNDA is not so delivered, Tenant shall not be required to subordinate its
rights under this Lease to such future lender’s mortgage or deed of trust. In connection herewith,
Landlord represents and warrants that Landlord is the current the simple owner of the Property,
subject to no mortgage, deed of trust or similar security instrument.
23.3 Notices to Mortgagees. Provided Landlord advises Tenant of an existing mortgagee
from time-to-time, Tenant agrees to give any mortgagee, by registered mail, a copy of any notice of
default served upon Landlord. Tenant further agrees that if Landlord shall have failed to cure
such default, then such mortgagee shall have an additional thirty (30) days within which to cure
such default, or if such default cannot reasonably be cured by such mortgagee within thirty (30)
days, such mortgagee shall have such additional time as may be necessary to cure such default
(including, without limitation, time necessary to obtain possession of the Property if possession
is necessary to cure such default), but not in excess of sixty (60) days and Tenant shall not
pursue any remedies it may have for such default and this Lease shall not be terminated, while such
cure is being diligently pursued.
23.4 Covenant of Title and Quiet Possession. Landlord represents and warrants to
Tenant that (a) Landlord is the fee simple owner and record title holder of the Property, (b) to
the best of its actual knowledge Landlord has not received any notice, and does not have any
knowledge of, any eminent domain or similar proceeding which would affect all, or any portion,
- 24 -
of the Property, (c) Landlord has the full right, power and authority to make this Lease, (d)
no restrictive covenant, easement, lease or other written agreement restricts, prohibits or
otherwise affects Tenant’s rights set forth in this Lease, including without limitation, rights to
signage, construction, permitted use or ingress and egress to and from the Premises and across the
Property, and (e) Tenant or any permitted assignee or sublessee of Tenant, upon payment of the Rent
and performance of the covenants required hereunder, shall and may peaceably and quietly have, hold
and enjoy the Premises during the Term or any Renewal Term of this Lease. Additionally, Landlord
shall take no action that will interfere with Tenant’s intended use of the Premises or parking,
signage or ingress or egress to or from the Premises or across the Property except as otherwise
permitted hereunder.
24. MISCELLANEOUS.
24.1 Definition of Landlord. For purposes of this Lease, Landlord shall mean Landlord
hereinabove named, except that in the event of any sale or other transfer of the Property or the
Building, the seller or transferor (and the beneficiaries of any selling or transferring land
trust) shall be and hereby is and are entirely freed and relieved of all agreements, covenants and
obligations of the Landlord hereunder accruing from and after the effective date of such transfer,
and without further agreement between the parties and the purchaser or transferee on any sale or
transfer, such purchaser or transferee shall be deemed and held to have assumed and agreed to carry
out any and all agreements, covenants and obligations of the Landlord hereunder accruing from and
after the effective date of such sale or transfer.
24.2 Real Estate Brokers. Tenant represents that Tenant has dealt with no broker in
connection with this Lease other than Xxxxxx X. Xxxxxxx, Inc. (the “Broker”), and that insofar as
Tenant knows, no other broker or finder negotiated this Lease or is entitled to any fee or
commission in connection herewith other than Xxxxxx X. Xxxxxxx, Inc. pursuant to a separate
agreement between Landlord and Broker. Tenant agrees to indemnify, defend and hold the Landlord
Parties free and harmless from and against all claims for broker’s commissions or finder’s fees by
any person claiming to have represented or procured, or to have been engaged by, Tenant in
connection with this transaction other than the Broker. Landlord represents that Landlord has
dealt with no broker in connection with this Lease other than the Broker and that insofar as
Landlord knows, no other broker or finder negotiated this Lease or is entitled to any fee or
commission in connection herewith. Landlord agrees to indemnify, defend and hold Tenant free and
harmless from and against all claims for broker’s commissions or finder’s fees by any person
claiming to have represented or to have been engaged by Landlord in connection with this
transaction.
24.3 Cumulative Remedies. All rights and remedies of Landlord under this Lease shall
be cumulative, and none shall exclude any other rights and remedies allowed by law.
24.4 Default Interest. All payments becoming due under this Lease shall be considered
as Rent, and if any such payments remain unpaid for more than five (5) days after the date when
due, such payments shall bear interest from the date when due until the date paid at a rate of
interest equal to three percent (3%) in excess of the rate announced or published from time to time
by LaSalle Bank at its office in Chicago, Illinois as its prime or equivalent base rate of interest
adopted as a general benchmark from which LaSalle Bank determines the floating
- 25 -
interest rates chargeable on various loans to borrowers from time to time. Landlord’s right
to receive such interest shall not, in any way, limit any of Landlord’s other remedies under this
Lease or at law or equity.
24.5 Grammatical Interpretation. 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.
24.6 Successors and Assigns. Each of the provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit, not only of Landlord and of Tenant,
but also of their respective heirs, legal representatives, successors and assigns, provided this
clause shall not permit any assignment contrary to the provisions of Section 11 hereof.
24.7 No Oral Modifications. All of the representations and obligations of Landlord
are contained herein, and no modification, waiver or amendment of this Lease or of any of its
conditions or provisions shall be binding upon Landlord unless in writing signed by Landlord or by
a duly authorized agent of Landlord empowered by a written authorization signed by Landlord.
24.8 Environmental Matters. Landlord hereby represents and warrants to the best of
its actual knowledge, that except as otherwise set forth in that certain environmental report,
dated May 31, 2003, by ATC Associates Inc., no Hazardous Materials (as defined in Section
22(o)) are in under or on the Property and that the soil, groundwater and soil vapor on, in or
under the Property is free of Hazardous Materials as of the date hereof. Moreover, Landlord hereby
represents and warrants to the best of its actual knowledge, that except as otherwise set forth in
the environmental report enumerated above, no leak, spill, discharge, emission or disposal of
Hazardous Materials has occurred in, under or on the Property. Landlord hereby agrees to
indemnify, defend and hold Tenant and Tenant’s shareholders, officers, directors, employees and
agents harmless from any claims, judgments, fines, penalties, costs (including reasonable attorney,
consultant and expert fees), liabilities (including sums paid in settlement of claims), or loss
which arise during or after the Term, in connection with the presence or suspected presence of
Hazardous Materials at the Property, except to the extent such Hazardous Materials are present as
the result of the acts of Tenant, or its agents, employees, contractors or invitees as more
specifically set forth in Subsection (o) of Section 22 hereof. If, during the term of this
Lease or any renewal hereof, any governmental authority requires the investigation, remediation
and/or monitoring of Hazardous Materials at the Premises or the Property which are not present as a
result of the acts of Tenant, or its agents, employees, contractors or invitees, and such
investigation, remediation and/or monitoring materially and adversely affects business operations
or poses a safety threat to Tenant’s employees or invitees, Tenant shall (a) receive an equitable
abatement of Rent from the date such interference or safety hazard occurs to the date such
interference or safety hazard are no longer present, and (b) have the right to terminate this Lease
if Tenant is unable to operate its business in the Premises for in excess of sixty (60) days as of
the result thereof. The indemnity of Landlord herein shall survive indefinitely.
24.9 No Air Rights. No rights to light or air over any property, whether belonging to
Landlord or any other person, are granted to Tenant by this Lease.
- 26 -
24.10 Intentionally Deleted
24.11 Landlord’s Title. Landlord’s title to the Property is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower Tenant to do any act
which can, shall or may encumber the title of Landlord to the Property.
24.12 Recording. The parties hereto agree that on or about the date of the execution
of this Lease, a Memorandum hereof containing therein the identification of the parties to this
Lease, the Term, the Renewal Options as more specifically set forth in Section 27 hereof
and the Option to Purchase and Right of First Refusal as more specifically set forth in Section
28 hereof shall be executed by the parties in recordable form and shall be filed of record with
the Lake County (Illinois) Recorder’s Office.
24.13 Relationship of Parties. 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 between Landlord and Tenant, it being
expressly understood and agreed that neither the method of computation of Rent nor any other
provisions contained in this Lease nor any acts of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of lessor and lessee.
24.14 Limitation of Liability. Any claim against, or liability or obligation of,
Landlord under this Lease or relating to the Premises or the Property shall be limited solely to
and satisfied solely from the interest of Landlord in the Property, and none of the Landlord
Parties shall be individually or personally liable for any claim arising out of this Lease or
relating to the Premises or the Property. A deficit capital account of any partner in Landlord
shall not be deemed an asset or property of Landlord.
24.15 Excuse for Non-Performance. Except as expressly provided to the contrary in
this Lease and the Work Letter, this Lease and Landlord’s or Tenant’s obligations or covenants and
agreements hereunder shall not be impaired or affected, and a respective party shall not be in
default hereunder, if it is unable to fulfill any of its obligations under this Lease because of
any accident, governmental restriction, inability to obtain fuel or materials, strike or lockout
(whether legal or illegal), act of God or other event, occurrence or circumstance beyond its
reasonable control.
24.16 Late Charge. If any payment or installment of Rent owed by Tenant under this
Lease or under the Work Letter is not paid when due or within ten (10) days thereafter, in addition
to the amounts due under Section 24.4 hereof, Tenant shall pay, as a late charge, an amount
equal to the greater of $100.00 or five percent (5%) of the amount overdue for each and every
thirty (30) day period or portion thereof that said amount remains unpaid.
24.17 Exhibits and Schedules. All exhibits and Schedules attached to this Lease are
made a part hereof and are incorporated herein by reference.
24.18 Intentionally Deleted.
25. PREMISES AND PARKING. The parking area to be constructed on the Property shall
consist of no less than one hundred thirty one (131) non-handicapped parking
- 27 -
spaces and four (4) handicapped spaces (and to be located in a manner consistent with
applicable law) as more specifically shown on the site plan attached hereto as Exhibit G.
Landlord hereby represents and warrants to Tenant that the aggregate number of such parking spaces
will allow the Property to comply with applicable and zoning and other requirements and will be in
compliance with all private covenants, conditions and restrictions applicable to the Property.
Moreover, Landlord hereby represents and warrants that the Building will upon completion be in
conformity with all covenants, conditions and restrictions to which the Property is subject,
including, without limitation, any such matters imposed by applicable instrument filed of record
against the Property.
26. SIGNAGE. Prior to the Commencement Date, Landlord will approve one (1) ground
mounted sign (the “Monument Sign”) for the Building containing Tenant’s name only. The Monument
Sign shall be located on the Land in the approximate location shown on Exhibit H attached
hereto and made a part hereof. The size, color, material, content, manner of Installation and
general appearance of the Monument Sign shall comply with all covenants, conditions and
restrictions of record encumbering the Property and all reasonable rules, regulations and
guidelines imposed from time to time by the Amhurst Lake Business Park Association (or any
subdivision or committee thereof), and the City of Waukegan. Following the installation of the
Monument Sign, Tenant shall, at its sole cost, keep the Monument Sign in good condition and repair.
Tenant shall have the right of exclusive building signage, subject to Landlord’s prior written
approval as to appearance and content, which approval shall not be unreasonably withheld,
conditioned or delayed. The cost of such Building Signage shall be at Tenant’s sole cost and
expense.
27. OPTION TO RENEW TERM.
27.1 Renewal Option. Subject to the terms and conditions set forth below in this
Section 27, this Lease may be extended at Tenant’s option (the “Renewal Option”) for two
(2) periods of five (5) years each. Each period is called the “Renewal Term”. The Renewal Term
shall be upon the same terms, covenants and conditions contained in this Lease (excluding the Work
Letter), except for the amount of Base Rent payable during the Renewal Term, which shall be
determined in accordance with Section 27.2 below. Any reference in this Lease to the
“Term” shall be deemed to include the Renewal Term and apply thereto, unless it is expressly
provided otherwise. Tenant shall have no extension or renewal option other than the Renewal
Option. Any termination of this Lease or of Tenant’s right of possession shall terminate all of
Tenant’s rights under this Section. Tenant shall exercise the Renewal Option by delivering written
notice thereof to Landlord not less than nine (9) months prior to the first day of a respective
Renewal Term. If Tenant fails to deliver any such notice when due as provided in the immediately
preceding sentence, Tenant shall be deemed to have irrevocably waived its right to exercise a
Renewal Option.
27.2 Base Rent During the Renewal Terms. The Base Rent during the first (1st) Lease
Year of each Renewal Term shall be based on an annual base rental rate per square foot equal to
ninety five (95%) of the then Prevailing Market Rental Rate for the Premises. For purposes of this
Lease, “Prevailing Market Rental Rate” shall mean the then prevailing per rentable square foot
market rental rate per annum for Base Rent i.e., net of the Tax Amount and Operating Expense
Amount) for the Premises based on buildings situated in Lake County,
- 28 -
Illinois which are comparable to the Building in age and quality, (but excluding any leases
where a tenant has an equity interest in the property), for a 5-year term commencing on or about
the first day of the Renewal Term. Prevailing Market Rental Rate shall also be determined by
taking into consideration the present value of the amount of any then market brokers’ commissions
and any then market tenant improvement, free rent or other concession which would be available to a
third party tenant. Base Rent shall increase each Lease Year during the Renewal Term by the then
prevailing market escalations, if any, in Lake County, Illinois for buildings which are comparable
to the Building in age and quality, and such escalations shall be taken into account in calculating
the Prevailing Market Rental Rate. Tenant’s obligation to pay the Tax Amount the Operating Expense
Amount pursuant to the terms hereof shall continue during the Renewal Term. If the parties hereto
cannot agree on the Prevailing Market Rental Rate and escalations within thirty (30) days after
Tenant’s exercise of the Renewal Option, each party shall select an independent real estate broker
authorized to do business in the State of Illinois with substantial presence within Lake County,
Illinois. Those two brokers shall, in turn, within ten (10) days after the last is so appointed
mutually agree upon a third real estate broker licensed to do business in the State of Illinois
with a substantial presence in Lake County, Illinois (the “Arbitrating Broker”). The Arbitrating
Broker shall within thirty (30) days after his or her appointment determine the prevailing Market
Rental Rate and prevailing market escalations, if any, to be applicable during a respective Renewal
Option, and such determination by the Arbitrating Broker shall be binding on Landlord and Tenant
for all purposes hereof.
27.3 Conditions to Exercising the Renewal Option. Tenant’s right to exercise the
Renewal Option is subject to the conditions that on the date that Tenant delivers its written
notice exercising its Renewal Option: (i) Tenant is not in default under this Lease; and (ii) no
event has occurred and is continuing which with the giving of notice or the passage of time, or
both, would constitute a default under this Lease.
28. OPTION TO PURCHASE AND RIGHT OF FIRST REFUSAL.
28.1 Option to Purchase. Subject to the terms and conditions set forth below in this
Section 28 for the period commencing on the Commencement Date and ending on the last day of
the sixth (6th) full calendar month thereafter (“Option Period”) Tenant shall have a continuing
option to purchase the Property (the “Purchase Option”). The parties shall execute a Purchase and
Sale Agreement to be prepared by Landlord’s counsel as soon as and in such form as is commercially
reasonable for properties similarly situated in Lake County, Illinois containing therein such other
terms as the parties may mutually agree, which provisions shall include, but not be limited to, the
following:
(a) The Purchase Price shall be determined accordance with the provisions contained in
Section 28.2 hereof;
(b) Tenant’s shall have the right to perform all testing in respect of the Property as
it shall determine reasonable at its sole cost, provided, however, that invasive testing may
only be performed upon Landlord’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed;
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(c) A written warranty in respect of latent defects shall be included to the extent the
First Lease Year hereunder shall not have expired as of the closing; otherwise the Property
shall be sold on an “as-is where is” basis and Landlord shall assign to Tenant any
warranties from third parties in respect of the Property;
(d) The Closing Date shall be within sixty (60) days after Tenant’s exercise of the
Purchase Option; but not earlier than the first business day immediately following the last
day of the first Lease Year hereunder, and the closing shall occur through an escrow with
Xxxx Xxxxxxxxx at Chicago Title Insurance Company (which shall also be the title insurer);
(e) Purchaser shall have the right to assign the Purchase and Sale Agreement to an
Affiliate or to any one or more of its then shareholders or any entity related by him or
them for the purpose of owning the Property, provided, however, that Tenant shall advise
Landlord of the identity of the Assignee at least ten (10) business days prior to closing
and provided Tenant’s obligations are assumed by such Assignee and Tenant remains liable
thereunder; and
(f) Seller shall pay for the owner’s policy of title insurance, state and county
transfer taxes and one-half of the fees attributable to the closing escrow. Tenant shall
pay for all endorsements required in respect of its owner’s policy, any third party reports
required by it (and Landlord shall make available to Tenant its most recent ALTA Survey of
the Real Property for updating and recertification) and one-half of the fees in connection
with the closing escrow. Local transfer taxes, if any, shall be paid by the party
designated by the applicable ordinance. Any other items of proration shall be prorated in
accordance with local usage and custom.
During the Option Period, Tenant shall have the exclusive right to purchase the Property and
Landlord shall neither solicit nor accept any offers for the sale of the Property.
28.2 Purchase Price. The Option to Purchase shall be based on a Purchase Price for
the Property of Four Million Three Hundred Forty Five Thousand Two Hundred and No/100 Dollars
($4,345,200.00) subject to recalculation of the square footage of the Premises per Landlord’s
architect, which Purchase Price shall be inserted into the Purchase and Sale Agreement.
28.3 Right of First Refusal. If at any time after the expiration of the Option Period
hereunder, Landlord accepts a written proposal (the “Proposal”) from a third party for the purchase
of the Property (and Landlord hereby covenants and agrees that it shall accept no offer involving
anything other than an all cash Purchase Price), then Landlord shall give written notice thereof to
Tenant (“Landlord’s Purchase Option Notice”). Landlord’s Purchase Option notice shall contain the
material terms and provisions of the Proposal and identify the third party. Tenant shall notify
Landlord within three (3) business days after Landlord’s delivery of Landlord’s Purchase Option
Notice whether Tenant elects to exercise its right to purchase the Property on the terms set forth
in Landlord’s Purchase Option Notice. If Tenant fails to notify Landlord within said three (3)
business day period of Tenant’s election to exercise its right to purchase the Property, Tenant
shall be deemed to have waived its right to exercise its right to
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purchase the Property and Landlord shall be free to sell the Property on the terms and
conditions and to the third party and within the time period contained in Landlord’s Purchase
Option Notice. If the sale by Landlord pursuant to the Purchase Option Notice is not consummated
in accordance with the terms thereof, the Property shall again be subject to the provisions of this
Section 28.3. If Tenant exercises its right to purchase the Property, then within fifteen
(15) days after Tenant’s exercise, Landlord and Tenant shall enter into a purchase and sale
agreement for the Property on substantially all of the terms and conditions specified in Landlord’s
Purchase Option Notice.
28.4 Conditions to Exercising Purchase Option or Right of First Refusal. Tenant’s
right to exercise its right to purchase the Property pursuant to Sections 28.1 and
28.3 hereof is subject to the conditions that on the date that Tenant delivers its written
notice exercising its Purchase Option or exercising its Right of First Refusal; (i) Tenant is not
in material default under this Lease; and (ii) no event has occurred and is continuing which with
the giving of notice or the passage of time, or both, would constitute a material default under
this Lease.
29. COUNTERPARTS. This Lease may be executed in any number of counterparts all of
which taken together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
[Signatures Begin on Next Page]
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IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease as of the date
first above written.
| TENANT | ||||||
| XXXXXXX CABLE, INC., a Delaware corporation | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Its: | Executive Vice President/CFO | |||||
| LANDLORD | ||||||
| PANATTONI DEVELOPMENT COMPANY, LLC, | ||||||
| a California limited liability company | ||||||
| By: | /s/ Xxxxxxx Xxxxxx | |||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Its: | Partner | |||||
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Exhibit A
Legal Description of the Land
PARCEL 2: (XXXXXXX}
That part of Lots 139 thru 1 51, inclusive, in Amhurst Lake Business Park Phase One, being a
subdivision of parts of the Southwest Quarter of Section 31, Township 45 North, Range 12, and the
Southeast Quarter of Section 36, Township 45 North, Range 11, and the Northeast Quarter of Section
1, Township 44 North, Range 11, and the Xxxxxxxxx Xxxxxxx Xx Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx
12-;-East of the Third Principal Meridian, according to the Plat thereof recorded September 7, 1989
as Document 2828136 and according to the Certificate of Correction thereof recorded October 3,1989
as Document 2837031, described as follows: Beginning at the Southeast corner of said Lot 139;
thence South 84 degrees 28 minutes 00 seconds West along the South line of said Lot 139 a distance
of 20.85 feet thence North 26 degrees 56 minutes 00 seconds West 31.02 feet; thence North 26
degrees 04 minutes 00 seconds West 61.88 feet; thence North 21 degrees 14 minutes 00 seconds West
49.46 feet; thence North 42 degrees 06 minutes 57 seconds West 29.86 feet; thence South 65 degrees
28 minutes 00 seconds West 22.00 feet; thence South 50 degrees 06 minutes 00 seconds West 30.00
feet; thence South 27 degrees 07 minutes 00 seconds West 30.00 feet; thence South 27 degrees 50
minutes 00 seconds West 60.00 feet; thence South 68 degrees 26 minutes 00 seconds West 54.00 feet;
thence South 77 degrees 43 minutes 00 seconds West 47.00 feet; thence South 64 degrees 35 minutes
00 seconds West 28.00 feet; thence South 38 degrees 13 minutes 00 seconds West 40.00 feet to a
point on the South line of said Lot 139; thence South 84 degrees 28 minutes 00 seconds West along
the South line of said Lot 139 a distance of 16.49 feet to the Southwest corner of said Lot 139;
thence North 57 degrees 14 minutes 11 seconds West 42.65 feet to a point on a line. 33.47 feet
West of and parallel with the East line of said Xxxx 000 xxxx 000, xxxx xxxxx being also 73.00 feet
North of, as measured perpendicular to, the South line of said Lot 151; thence North 05 degrees 32
minutes 00 seconds West, along said parallel line, being 33.47 feet West of the East line of said
Lots 146 thru 151, a distance of 496.87 feet; thence North 21 degrees 22 minutes 54 seconds East,
90.1 5 feet to a point on a line 7.34 feet East of and parallel with the West line of said Lot 145;
thence North 05 degrees 32 minutes 00 seconds West along said parallel line, being 7.34 feet East
of the West line of said Lot 145 a distance of 42.89 feet to a point on a curve on the North line
of said Lot 145; thence Easterly along the arc of a curve, being the Northerly line of said Lot
145, concave to the South, having a radius of 862.73 feet, having a chord bearing of South 89
degrees 16 minutes 58 seconds East for a distance of 171.14 feet to a point of tangency; thence
South 83 degrees 36 minutes 00 seconds East 105.74 feet to a point of curvature; thence
Southeasterly along the arc of a curve concave to the Southwest, having a radius of 40.00 feet,
having a chord bearing of South 41 degrees 48 minutes 00 seconds East for a distance of 58.36 feet
to a point of tangency; thence South 00 degrees 00 minutes 00 seconds East 187.28 feet to a point
of curvature; thence Southerly along the arc of a curve, concave to the Rug 2803 12:59p Midwest
Technical Consult 6305050318 p.5 East, having a radius of 780.00 feet 7 having a chord bearing of
South 12 degrees 00 minutes 00 seconds East for a distance of 326.73 feet to a point of tangency;
thence South 24 degrees 00 minutes 00 seconds East 57.39 feet to the Place of Beginning; except
that part described as follows:
That part of Lots 146 thru 151, inclusive, in Amhurst Lake Business Park Phase One, being a
Subdivision of parts of the Southwest Quarter of Section 31, Township 45 North, Range 12, and
- 33 -
the Southeast Quarter of Section 36, Township 45 North, Range 11, and the Northeast Quarter of
Section 1, Township 44 North, Range 11, and the Northwest Quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00, Xxxx of the Third Principal Meridian, according to the Plat thereof recorded September 7,
1989 as Document 2828136 and according to the Certificate of Correction thereof recorded October 3,
1989 as Document 2837031, described as follows:
Commencing at the Northeast corner of said Lot 146; thence South 05 degrees 32 minutes 00 seconds
East along the East line of said Lot 146 a distance of 57.39 feet to the Place of Beginning; thence
continuing South 05 degrees 32 minutes 00 seconds East along the East line of said Lot 146 a
distance of 47.32 feet; thence South 21 degrees 22 minutes 54 seconds East 26.51 feet to a point on
a line 12.00 feet West of and parallel with the East line of said lots 146 through 151, inclusive;
thence South 05 degrees 32 minutes 00 seconds East along said parallel line, being 12.00 feet West
of the East line of said lots 146 through 151, inclusive, a distance of 475.00 feet; thence South
84 degrees 28 minutes 00 seconds West 21.47 feet to a point on a line 33.47 feet West of and
parallel with the East line of said Lots 146 through 151, inclusive; thence North 05 degrees 32
minutes 00 seconds West along said parallel line, being 33.47 feet West of the East line of said
Lots 146 through 151, inclusive, 480.14 feet; thence North 21 degrees 22 minutes 54 seconds East
73.94 feet to the Point of Beginning; except that part of the above described parcel, lying North
of a line 12.40 feet South of and parallel with, the North line of Lots 143 and 148 in said Amhurst
lake Business Park Phase One, in lake County, Illinois.1
233-108 XXXXXXX/1-2
| 1 | The Landlord and Tenant shall confirm in writing prior to the Commencement Date that the legal description of the land set forth in this Exhibit A is correct or if such legal description of the land requires changes for whatever reason then Landlord and Tenant shall replace Exhibit A with a revised legal description of the land. |
- 34 -
Exhibit B
Plan of the Premises
- 35 -
[SITE PLAN]
- 36 -
Exhibit C
Work Letter
All of the terms and conditions of the Lease are incorporated herein by reference and, except
as may be expressly set forth to the contrary in this Work Letter or the Lease, shall apply as
fully to this Work Letter as to the Lease. The capitalized terms used but not defined in this Work
Letter shall have the meanings ascribed to them in the Lease.
1. Construction of Tenant Improvements. Landlord shall, at its sole cost up to a
total cost of One Million Two Hundred Seven Thousand and No/100 Dollars ($1,207,000.00) ($40.00 per
rentable square foot) (“Tenant Improvement Allowance”), provide the construction material, hardware
and equipment (including HVAC and electrical material, hardware and equipment) and the labor to
construct the Tenant Improvements within the Premises. Tenant shall pay that part of the total
cost of the Tenant Improvements that exceeds One Million Two Hundred Seven Thousand and No/100
Dollars ($1,207,000.00). Not more than One Hundred Twenty Five Thousand and No/100 Dollars
($125,000.00) of the Tenant Improvement Allowance shall be used by the Tenant for Tenant’s
furniture, fixtures, and equipment. If the total cost of the Tenant Improvements exceeds One
Million Two Hundred Seven Thousand and No/100 Dollars ($1,207,000.00), Tenant shall pay to Landlord
such costs in one lump sum payment within thirty (30) days after written demand for said payment.
If the total cost of the Tenant Improvements is less than One Million Two Hundred Seven Thousand
and No/100 Dollars ($1,207,000.00), Tenant shall receive a credit against monthly Base Rent which
credit shall commence on the Rent Commencement Date and shall be utilized towards the first
installments of monthly Base Rent due under the Lease; provided, however, that for any calendar
month or part thereof during the Term, Tenant may not receive a credit against monthly Base Rent of
more than three-fourth (3/4) of the monthly Base Rent due and owing for such month. “Tenant
Improvements” means (i) the materials, hardware and equipment to be incorporated into the Premises
pursuant to the Plans (as defined below and as the same may be modified pursuant to Section
3 of this Work Letter), and the labor to construct and install such items, (ii) the other
building standard items described in the Plans, as the same may be modified pursuant to Section
3 of this Work Letter, and (iii) the preparation of the Plans by Eckenhoff Xxxxxxxx Architects
(the Architect). The Tenant Improvements shall be constructed in accordance with the General
Contractor Agreement attached hereto as Schedule 7. The parties agree to the preliminary
base building plans to include, the base building space plan attached hereto as Schedule 3,
the base building site plan attached hereto as Schedule 4, the base building outline
specifications attached hereto as Schedule 5 and the base building elevation attached
hereto as Schedule 6 (collectively, the “Base Building Plans”). The parties agree to
cooperate in good faith to approve as soon as reasonably possible in writing the final Base
Building Plans by not later than forty (40) days from the date of this Lease. At such time as the
final Base Building Plans have been approved in writing by Landlord and Tenant, Landlord will cause
the base building to be constructed or installed on the property in conformity with such final Base
Building Plans. The parties hereby acknowledge that Tenant has hired the Architect and may hire an
additional third party architect or designer to perform certain interior design services for the
Premises, and Landlord and Tenant hereby agree that the Architect’s charges as well as other third
party architect or designer charges for such interior design services shall be included in
determining the total cost of the Tenant Improvements pursuant to this Section 1, but that
any improvements, work, furnishings, furniture
- 37 -
or other matters designed by the Architect or other third party architect or designer as a
part of such interior design services shall not be part of the Tenant Improvements, and Landlord
shall have no liability or responsibility therefor. Landlord shall proceed diligently to cause the
Tenant Improvements to be substantially completed substantially in accordance with the Plans and
the terms and conditions of the Lease. All architects, engineers, contractors, subcontractors,
suppliers, manufacturers or materialmen performing services or supplying materials in connection
with the design and/or construction of the Tenant Improvements (the “Contractors”) shall be
selected by Landlord or Tenant, subject to mutual agreement, and shall enter into contracts
directly with Landlord or Tenant, subject to mutual agreement, for the provision of services and
materials. Landlord agrees that the Tenant Improvements shall be done in a first-class,
workmanlike manner using only good grades of material and shall be performed in accordance with
Laws.
2. The Plans. Landlord and Tenant shall approve, but not later than the date of this
Lease, the Base Building Plans and the preliminary description of the Tenant Improvements attached
to this Work Letter as Schedule 1 and made a part hereof. Landlord will cause to be
prepared, and Landlord and Tenant shall act in good faith and cooperate with each other to finalize
and approve as soon as reasonably possible, the plans, drawings and specifications for the Tenant
Improvements based on the description in Schedule 1. Based on the preliminary plans,
drawings and specifications for the Tenant Improvements and the Base Building Plans approved by
Landlord and Tenant, Landlord shall cause the final plans, drawings and specifications for the
Tenant Improvements and the final Base Building Plans (collectively “Working Drawings”) to be
prepared and delivered to Tenant within two (2) weeks of the date of this Lease. Within five (5)
days after Landlord’s delivery of the Working Drawings to Tenant, Tenant shall approve or
disapprove the same in writing, which approval shall not be unreasonably withheld; provided,
however, that Lessee may only disapprove the Working Drawings which are not required or approved by
any governmental agencies or authorities and to the extent such Working Drawings are materially
inconsistent with the Base Building Plans or preliminary plans, drawings and specifications for the
Tenant Improvements, or to propose modifications which are consistent with the Base Building Plans
or preliminary plans, drawings and specifications for the Tenant Improvements and only if Tenant
delivers to Landlord within such five (5) day period, specific changes proposed by Tenant which (i)
are consistent with the preliminary Base Building Plans and preliminary plans, drawings and
specifications for the Tenant Improvements and (ii) do not constitute design problems. If any such
revisions are timely and properly proposed by Tenant, Landlord shall cause the Working Drawings to
be revised to incorporate such revisions and submit the same for Tenant’s approval in accordance
with the foregoing provisions and the parties shall follow the foregoing procedures for approving
the Working Drawings until the same are finally approved by Landlord and Tenant. The Working
Drawings approved by the parties shall be referred to as the “Plans”. Landlord and Tenant shall
approve the Plans not later than forty (40) days from the date of this Lease.
3. Changes to the Plans.
3.1 Tenant Changes to the Plans. Tenant may propose one or more changes to the Plans
to Landlord at any time before the Substantial Completion Date (as defined below), and, as promptly
as reasonably practicable after the receipt and approval thereof by Landlord (which approval may be
withheld in Landlord’s sole discretion), Landlord shall provide Tenant with a
- 38 -
written estimate of the delay (if any) in the Substantial Completion Date (which delay shall
be a Tenant Delay [as defined below]) and the additional cost (if any) to complete the Tenant
Improvements which will result from such change (whether hard costs or soft costs), which costs
shall include, without limitation: (i) the actual cost of all materials, supplies, equipment and
labor used or supplied in making the proposed change, including general conditions and any
contractor’s fees; (ii) any architect and engineer fees; (iii) a contractor’s fee pursuant to the
General Contractor Agreement set forth in Schedule 7; and (iv) any other additional costs
and expenses of owning and operating the Premises during the extended construction period (if any)
resulting from such change(s). If Tenant fails to approve the estimate within five (5) business
days after delivery of same, Tenant shall be deemed to have abandoned its request for such change,
and the Tenant Improvements shall be constructed substantially in accordance with the then existing
Plans. If Tenant approves the estimate within said 5-day period by signing and returning a copy of
Landlord’s estimate, Landlord shall cause the Tenant Improvements to be constructed substantially
in accordance with the Plans as so revised. If and to the extent there are actual increased costs
due to Tenant’s changes in the Plans, such amount shall be charged as a Tenant Improvement cost per
Paragraph 1 of this Work Letter and if the total Tenant Improvement costs thereby exceed One
Million Two Hundred Seven and No/100 Dollars ($1,207,000.00), then Tenant shall pay such amount to
Landlord within thirty (30) days after Tenant’s receipt of demand therefor. Unless requested in
writing by Tenant to the contrary, Landlord shall continue with construction of the Tenant
Improvements according to the then existing Plans during the tendency of any proposed change in the
Plans until such change is approved by Landlord and Tenant as provided above. Any delay resulting
from a halt in construction requested in writing by Tenant shall constitute a Tenant Delay.
If Tenant approves Landlord’s estimate of the time and cost of a proposed change to the Plans:
(a) Tenant shall be liable for the actual cost of such change, whether or not such actual cost
exceeds Landlord’s estimate, and (b) Landlord shall not be liable for any delay in the Substantial
Completion Date resulting from the requested change, whether or not the delay exceeds Landlord’s
estimate, and any such delay shall be a Tenant Delay. Upon Tenant’s request, Landlord shall
provide Tenant with reasonable evidence of the actual cost of such change and the basis for any
delay in the Substantial Completion Date resulting from such change.
If Tenant requests a change to the Plans pursuant to this Section 3.1, and Tenant does
not ultimately approve the resulting revised Plans or estimate, Tenant shall promptly reimburse
Landlord, as Additional Rent, for any reasonable costs and expenses resulting from such requested
changes incurred by Landlord.
3.2 Landlord Changes to the Plans. Landlord may make changes to the Plans without
Tenant’s consent, provided that such changes (i) are necessary to address field conditions, (ii)
will not create any additional monetary obligation for Tenant under the Lease, (iii) are in
material conformity with the Plans (as they may have been previously revised by permissible Tenant
and/or Landlord changes thereto), and (iv) will not result in the use of materials or equipment
which are of a materially lesser quality than those specified in the Plans.
4. Punchlist Items. Before Tenant takes occupancy of the Premises, but no later than
fifteen (15) days after the Substantial Completion Date, Landlord, Landlord’s architect,
- 39 -
Tenant and at Tenant’s election, Tenant’s consulting architect or other construction
consultants shall conduct an inspection of the Premises, and work in good faith to jointly prepare
a punchlist for the Tenant Improvements. Subject to Landlord’s obligations for latent defects
under Section 8 of the Lease, any items not on such punchlist shall be deemed accepted by
Tenant. Landlord shall complete all punchlist items within thirty (30) days after such punchlist
items are finally determined, subject to extension due to any Tenant Delay or Force Majeure Delay
(as hereinafter defined), it being expressly understood and agreed that to the extent any punchlist
items are not, with due diligence, susceptible of being completed within said thirty (30) day
period, then provided that Landlord has promptly commenced and thereafter prosecutes the completion
of such punchlist with due diligence to the extent within its reasonable control, then such thirty
(30) day period shall be extended for any additional reasonable period following the removal of the
condition preventing Landlord from the completion thereof, and Landlord shall not be deemed in
default hereunder on account of such delay.
5. Representatives of Landlord and Tenant. Landlord designates Xxxxxxx Xxxxxx as its
representative(s) for all purposes of this Work Letter. Tenant designates Xxxxxxx Xxxx as its
representative for all purposes of this Work Letter. Wherever this Work Letter requires any notice
to be given to or by a party, or any determination or action to be made or taken by a party, the
representative(s) of each party shall act for and on behalf of such party, and the other party
shall be entitled to rely thereon. Either party may designate one or more additional or substitute
representatives for all or a specified portion of the provisions of this Work Letter, subject to
notice to the other party of the identity of such additional or substitute representative(s).
6. Delay in the Commencement Date.
6.1 The Substantial Completion Date. If the base building and Tenant Improvements
have not been substantially completed on or before June 1, 2004, then the Commencement Date shall
be the Substantial Completion Date. The “Substantial Completion Date” shall mean the earliest to
occur of: (i) the date on which Landlord receives the approval from the City of Waukegan
authorizing occupancy of the Premises by Tenant, which approval may take the form of a conditional
certificate of occupancy so long as Tenant may occupy the Premises, or (ii) the date on which
Landlord’s architect issues a certificate to Landlord and Tenant stating that the Tenant
Improvements have been substantially completed substantially in accordance with the Plans, or (iii)
if the substantial completion of the Tenant Improvements has been delayed as a result of one or
more Tenant Delays (as defined below), the date on which Landlord would have substantially
completed the Tenant Improvements but for such Tenant Delays, as so certified by the Landlord’s
architect. In no event shall the Commencement Date be earlier than June 1, 2004.
6.2 Tenant Delays. “Tenant Delay” shall mean any interruption or delay at any time in
the progress of the construction of the base building and the Tenant Improvements which is the
result of: (i) Tenant changes to the Plans, including, in addition to delays resulting from the
actual execution of such changes to the Plans, any delay occurring because the change to the Plans
requested by Tenant expressly requires the design or construction of the Premises to be halted or
delayed pending resolution of any request by Tenant for a change to the Plans, whether or not the
requested change is ultimately approved by Landlord and/or Tenant; (ii) the
- 40 -
performance or non-performance of any work at the Premises by Tenant or any person, firm or
corporation employed by Tenant; or (iii) any other act or omission of Tenant (for example, but not
by way of limitation, failure to timely respond to requests for information or approval of
construction related matters submitted by Landlord and failure to act in good faith and to
cooperate with Landlord in finalizing and approving the Plans pursuant to Section 2 of this
Work Letter).
6.3 Force Majeure Delays. “Force Majeure Delay” shall mean any interruption or delay
at any time in the progress of the construction of the base building and the Tenant Improvements
which is not a Tenant Delay and is the result of any Events of Force Majeure. Any delay shall be
deemed to be a Force Majeure Delay notwithstanding that Landlord or its agent or Contractor with
respect to which the time period for the Force Majeure Delay is being claimed is concurrently
delayed by events within its control. For purposes hereof, Events of Force Majeure shall mean any
accident, governmental restriction, inability to obtain fuel or materials, strike or lockout
(whether legal or illegal), act of God, war, acts of terrorism, any delay by governmental
authorities in issuance of permits or approvals, or other event, occurrence or circumstance beyond
Landlord’s reasonable control.
6.4 Notice of Tenant Delays and Force Majeure Delays. Landlord agrees that it shall
exercise reasonable efforts to provide Tenant with written notice of any Tenant Delay or Force
Majeure Delay (and the expected length of the applicable delay) as soon as reasonably practicable
following the date Landlord has been notified of any such delay; provided, however, that Landlord’s
failure to furnish such notice shall in no event be deemed to a waiver by Landlord of the Tenant
Delay or Force Majeure Delay or otherwise affect the operation of this Section 6. Landlord
shall be deemed to have notified Tenant of a Tenant Delay or a Force Majeure Delay if the
applicable delay is noted in the written job meeting minutes, if any, prepared by Landlord or any
Contractor and furnished to Tenant.
7. Governmental Approvals. Landlord shall use reasonable and diligent, continuous
efforts to obtain all governmental licenses, permits and approvals necessary for the construction
of the Tenant Improvements. If Landlord is unable to obtain any permit, license or approval from
any governmental authority necessary for the construction of the Tenant Improvements, Landlord may
elect to terminate the Lease upon written notice to Tenant delivered within thirty (30) days after
agreement upon the final Plans, upon which termination Landlord shall return to Tenant any Security
Deposit and Base Rent in Landlord’s possession, and thereafter Landlord shall have no further
liability to Tenant hereunder or under the Lease.
8. Access by Tenant Prior to Commencement Date. Landlord will permit Tenant and
Tenant’s agents, suppliers, contractors and workmen to enter the Premises prior to the completion
of the Tenant Improvements to enable Tenant to do such other things as may be required by Tenant to
make the Premises ready for Tenant’s occupancy, provided that Tenant shall fully perform and comply
with each of the following covenants, conditions and requirements:
(a) Tenant and Tenant’s agents, contractors, workmen, mechanics, suppliers and
invitees, shall work in harmony and not interfere with Landlord and Landlord’s agents in
performing the Tenant Improvements or work for other tenants and occupants
- 41 -
of the Building, and if at any time such entry shall in the judgment of Landlord cause
or threaten to cause disharmony or interference, Landlord shall have the right to withdraw
such permission upon one (1) day written notice.
(b) Tenant agrees that any such entry into the Premises shall be deemed to be under all
of the terms, covenants, conditions, and provisions of the Lease except the covenant to pay
Rent, and further agrees that in connection therewith 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 prior to the Commencement Date, the same
being at Tenant’s sole risk. In addition, Tenant shall require all entities performing work
on behalf of Tenant to provide protection for existing improvements to an extent that is
satisfactory to Landlord and shall allow Landlord access to the Premises, for inspection
purposes, at all times during the period when Tenant is undertaking construction activities
therein. In the event any entity performing work on behalf of Tenant causes any damage to
the Tenant Improvements or the property of Landlord or others, Tenant shall cause such
damage to be repaired at Tenant’s expense, and if Tenant fails to cause such damage to be
repaired immediately upon Landlord’s demand therefor, Landlord may in addition to any other
rights or remedies available to Landlord under the Lease or at law or equity cause such
damage to be repaired, in which event Tenant shall immediately upon Landlord’s demand pay to
Landlord the cost of such repairs as Additional Rent.
(c) All contractors and subcontractors shall use only those entrances designated by
Landlord for ingress and egress of personnel, and the delivery and removal of equipment and
material through or across any common areas of the Building or parking areas on the Property
shall only be permitted with the written approval of Landlord and during hours determined by
Landlord. Landlord shall have the right to order Tenant or any contractor or subcontractor
who violates the above requirements to cease work and remove it, its equipment, and its
employees from the Building or the Property.
(d) During the performance of Tenant’s work and Tenant’s fixturing, Landlord may
provide trash removal service from a location designated by Landlord. Tenant shall be
responsible for breaking down boxes and placing trash in Landlord’s containers at such
designated location. Tenant shall accumulate its trash in containers supplied by Tenant and
Tenant shall not permit trash to accumulate within the Premises or in the corridors or
public areas adjacent to the Premises. Tenant shall cause each entity employed by it to
perform work on the Premises to abide by the provisions of this Work Letter as to the
storage of trash and shall require each such entity to perform its work in a way that dust
and dirt is contained entirely within the Premises and not within any other portion of the
Building or the Property and shall cause Tenant’s contractors to leave the Premises broom
clean at the end of each day. Should Landlord deem it necessary to remove Tenant’s trash
because of accumulation, an additional charge to Tenant will be on a time and material
basis.
(e) Tenant agrees that all services and work performed on the Premises by, on behalf
of, or for the account of Tenant, including installation of materials and personal
- 42 -
property delivered to the Premises shall be done in a first-class workmanlike manner
using only good grades of material, shall be performed in accordance with Laws, and shall be
performed only by persons covered by a collective bargaining agreement with the appropriate
trade union.
(f) Tenant agrees to protect, indemnify, defend and hold harmless the Landlord Parties
from and against any and all losses, damages, liabilities, claims, liens, costs and
expenses, including reasonable attorneys’ fees, of whatever nature, including those to the
person and property of Tenant, its employees, agents, invitees, licensees and others arising
out of or in connection with the activities of Tenant or Tenant’s contractors in or about
the Premises and the Property, and the cost of any repairs to the Premises and the Property
necessitated by activities of Tenant or Tenant’s contractors.
(g) Tenant shall secure, pay for, and maintain during the continuance of its work
within the Premises, policies of insurance with such coverages and such amounts as Landlord
may reasonably require, which policies shall be endorsed to include Landlord and its
contractors and their respective employees and agents and any Mortgagee as additional
insured parties, and which shall provide thirty (30) days prior written notice of any
alteration or termination of coverage. Tenant shall not permit Tenant’s contractors to
commence any work until all required insurance has been obtained by Tenant and certificates
evidencing such coverage have been delivered to and approved by Landlord in writing.
9. Termination of Work Letter; Survival of Terms. Landlord and Tenant acknowledge and
agree that the provisions of this Work Letter are intended and designed to govern certain rights
and obligations of the parties relating to the construction of the Tenant Improvements and other
matters prior to the Commencement Date. In the event that Tenant elects that Landlord not
construct the Tenant Improvements this Work Letter shall be null and void and be of no force or
effect. Accordingly, except as hereinafter set forth in this Section 9, from and after the
Commencement Date, the terms and provisions of this Work Letter shall become null and void and of
no further force or effect, Notwithstanding anything to the contrary in this Section 9,
however, the following provisions shall not terminate and shall continue in full force and effect
after the Commencement Date, and shall survive the Commencement Date: Sections 1 and 4
(both of which shall terminate at such time as all punchlist items have been completed and all
claims in connection therewith have been satisfied in full); Sections 8(b), 8(e), 8(f), 9 and
10 (which shall remain in effect for the duration of the Term); and Section 11 (which
shall terminate at such time as the parties have executed the Confirmatory Memorandum).
10. Application of Work Letter. This Work Letter shall not be applicable to any space
added to the Premises or in the event of a renewal or extension of the Term of the Lease or the
exercise of any expansion option granted to Tenant pursuant to the Lease.
11. Confirmatory Memorandum. At the request of either party, at such time as the
Substantial Completion Date has been finally determined, the parties shall jointly execute a
written memorandum in the form attached to this Work Letter as Schedule 2, and such
memorandum shall be attached to and become a part of the Lease.
- 43 -
SCHEDULE 1
DESCRIPTION OF TENANT IMPROVEMENTS
- 44 -
[FLOOR PLAN]
- 45 -
SCHEDULE 2
Form of Confirmatory Memorandum
PANATTONI DEVELOPMENT COMPANY, LLC, a California limited liability company (“Landlord”) and
XXXXXXX CABLE SYSTEMS, INC. (“Tenant”) hereby execute and deliver this Confirmatory Memorandum
pursuant to Section 11 of the Work Letter attached as Exhibit C to that certain Lease
between Landlord and Tenant dated August ___, 2003.
1. This Confirmatory Memorandum is for the convenience and reference of the parties. The
provisions of the Lease and the Work Letter shall be valid and given their full force and effect
with respect to the terms contained in this Confirmatory Memorandum, notwithstanding the failure or
refusal of either party to execute this document.
2. Landlord and Tenant further agree and acknowledge as follows:
(a) the Substantial Completion Date occurred on
2004 and
(b) the Commencement Date occurred on 2004.
Executed and delivered as of , 2004.
| XXXXXXX CABLE, INC., | ||||
| a Delaware corporation | ||||
By: |
||||
Name:
|
||||
Its:
|
||||
| LANDLORD | ||||
| PANATTONI DEVELOPMENT COMPANY, LLC, | ||||
| a California limited liability company | ||||
By: |
||||
Name:
|
||||
Its:
|
||||
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SCHEDULE 3
BASE BUILDING SPACE PLAN
- 47 -
[FLOOR PLAN]
- 48 -
SCHEDULE 4
BASE BUILDING SITE PLAN
- 49 -
[SITE PLAN]
- 50 -
SCHEDULE 5
BASE BUILDING OUTLINE SPECIFICATIONS
Client:
|
Xxxxxxx Cable | |||
| Office Building | ||||
Location:
|
Waukegan, IL | |||
Date:
|
May 9, 2003 |
The Project
This outline specification prepared by Panattoni Construction Incorporated (Contractor),
defines the scope of work for the design and construction of a 30,175 gross square foot
single floor office building on a site of approximately 2.3 acres located on the corner of
Xxxxxxxx Xxxxx xxx Xxxxxxx Xxxxx, Xxxxxxxx, XX.
The facility consists of the following areas:
Office Area |
30,175 rsf | |||
Total |
30,175 rsf | |||
The work will be in general accordance with Contractor’s conceptual site plan sheet dated
April 11, 2003.
The Contractor shall have a complete set of certified, final working drawings and
specifications prepared in conformance with these outline documents and shall furnish all
labor, materials, equipment and supervision necessary for the execution and completion of
the work.
DIVISION 1: GENERAL REQUIREMENTS
01-100 LAWS, ORDINANCES, RULES AND REGULATIONS
The Contractor shall be responsible for complying with all building codes and dimensional
requirements of zoning ordinances applicable to the building including local city
ordinances, Americans with Disabilities Act, and the Occupational Safety and Health Act
Provisions applicable to construction sites.
01-200 IMPACT, PERMITS AND CONNECTION FEES:
This proposal includes giving to the proper authorities all notices as required by law
relative to the work of this project; apply and pay for all building permits (other than
environmental permits if required for Client’s operation) and Contractor’s licenses as are
required for construction.
- 00 -
00-000 XXXXX ADMINISTRATION PERSONNEL
The field administration personnel shall consist of a project manager, project
superintendent. Sub-contractors to provide adequate manpower to maintain the project
schedule.
01-400 TESTING
The Contractor shall develop and employ a field testing program for quality control during
the course of the project. The Contractor’s testing program shall include soils,
cast-in-place concrete, bituminous pavements and structural steel. The Client shall have
the right to perform additional independent tests on all materials and equipment furnished
for the project at any time.
01-500 QUALITY/TRAINING/SAFETY/PROGRAMS
Quality assurance shall be met through direct supervision, specialized testing and
certification by an independent laboratory. Panattoni Construction will maintain safety
standards in accordance with state, local safety and insurance standards.
01-510 MOBILIZATION/DEMOLIZATION
As work is commenced, temporary utilities and facilities will be procured as required.
Panattoni Construction will be responsible for providing and/or coordinating equipment and
materials.
01-520 TEMPORARY CONSTRUCTION FACILITIES
Temporary restrooms, staging and yard area and job-site trailer will be provided by
Panattoni Construction. Temporary facilities will be removed and/or relocated as the job
progresses.
01-740 CLEANUP AND PUNCH LIST
The Contractor shall be responsible at all times to keep the premises free from excessive
accumulations of waste materials and/or rubbish. Periodically, the Contractor shall remove
all rubbish and waste materials from the building and the construction site, and at the
completion of the project, all debris, tools, scaffolding and surplus materials shall be
removed and the project shall be left in “broom-clean” condition.
At time of substantial completion contractor and owner will compile a “punch list” of work
to be finished, repaired or touched-up.
DIVISION 2: SITE WORK
02-230 CLEAR AND GRUB
Clear site of trees, stumps, debris, surface vegetation and soil of organic materials.
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02-310 GRADING AND EXCAVATION
Grading and earthwork will include the necessary excavation, backfill and rough and fine
grading necessary to accomplish the building construction. Topsoil will be respread as
necessary to provide 6” of topsoil in landscaped areas. Contractor assumes the site
topography is relatively flat and the site contours can be altered to achieve a balanced
site and provide adequate storm water drainage away from the building. A final grading plan
will be included in the final working drawing set.
Areas to receive bituminous and concrete paving outside the areas of the building structure
shall be cut and filled to the grades designed by our Civil Engineer. Fill work in these
areas will be with on-site material, compacted to 95% Xxxxxxx density.
02-500 UNDERGROUND UTILITIES
All items shall be designed to meet state and local requirements
Sanitary Sewer — A 4” gravity sanitary sewer line will be installed from a main sewer line
with sufficient depth located at the property line.
Water — An 8” fire protection and 3” domestic water service will be brought to the building
from the water main service located at the property line. Contractor assumes the water main
at the property line will have adequate water flow and pressure to supply the needs of the
fire sprinkler system.
Storm Sewer — Storm water drainage will be by means of surface runoff to an offsite storm
sewer system. Drainage systems, to the maximum extent possible, will utilize surface
drainage.
Telephone — An empty conduit stub will be installed through the exterior wall to provide
access into the building. Cost of the telephone service will be borne by the Client.
Natural Gas — Natural gas will be brought to the building by the natural gas utility.
02-740 ASPHALT PAVING
The Contractor shall furnish and install all bituminous paved parking lots and driveways.
Parking for approximately 131 cars shall be provided.
Light duty paving at parking stalls shall consist of an 8” stone base and 3” asphalt wearing
surface. Auto stall striping and handicap signs are included.
02-775 SITE CONCRETE
This proposal includes B6.12 curb and gutter located at the parking area, the entrance
drives, and around the truck apron. Curb and gutter is not included at the fire lane. A
broom- finished concrete sidewalk is included at the main office entrance.
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DIVISION 3: CONCRETE
03-300 BUILDING FOUNDATIONS
Concrete trench footings will be provided for all load bearing precast walls and exterior
walls.
03-310 FLOOR SLABS
4” thick reinforced concrete floor slab on 4” thick compacted granular fill, all concrete to
be 4,000 psi compressive strength in 28 days.
The floor slab concrete will be placed with a laser screed, finished with a hard machine
trowel finish and installed to floor flatness and floor levelness 1/2’ in 10 ft non
cumulative. A 10-foot by 10-foot survey will be completed prior to acceptance to determine
levelness. The floor will be measured in accordance with Random Access floor tolerances
utilizing Xxxxx Face & Associates’ testing standards. Contractor will provide an
independent testing laboratory report stating that the floor slab has been installed in
accordance with this outline specification and floor finish tolerances.
The floor slab will be cured with a quality membrane-curing compound. The floor slab will
have control joint spacing not to exceed approximately 12’-6” x 12’-6” and control joints
will be sawn with soft cut blade method.
The first floor slab of the building shall be constructed to pre-plan in-floor electrical,
telephone and data distribution based on a mutually agreeable distribution system.
Live Load — (50) fifty lbs./sf. in accordance with the current Building Code.
03-473 PRECAST
The building exterior shall consist of smooth precast concrete panels finished with accent
reveals at the office and packaging and distribution area walls.
The exterior walls of the office and warehouse areas will be approximately 10” insulated
load bearing precast concrete wall panels.
Precast panels will be of sufficient height to allow for an average interior clear height of
9’-6” from finish floor to underside of office ceiling.
Insulation for exterior walls will be fiberglass xxxxx or rock wool with a vapor barrier in
conjunction with foil faced thermax board to achieve a minimum R-value of ___. Cost for
insulation shall be part of the tenant improvement allowance. All exterior soffits and
window overhangs will be insulated in a similar manner. Rigid perimeter insulation will be
provided to a depth of 2’ below finished grade at all exterior wall.
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DIVISION 5: STRUCTURAL STEEL AND METALS
05-120 STRUCTURAL STEEL
The building system will conform to the standards of ACI, ASTM, SJI, and applicable building
regulations. The general construction will be steel columns, beams, and steel bar joists
carrying metal deck. The finish on all steel will be xxxx primer paint. Bay size will be
approximately 40’-0” x 40’-0”.
05-510 METAL STAIRS, LADDERS AND MISCELLANEOUS
One (1) steel vertical ladder is included inside the building to provide access to the roof
through one (1) 2’-6” x 3’-0” roof hatch.
DIVISION 6: CARPENTRY
06-190 MISCELLANEOUS CARPENTRY
All miscellaneous carpentry shall be performed, where applicable, to provide the client with
a professional finish.
DIVISION 7: THERMAL AND MOISTURE PROTECTION
07-220 INSULATION
Roof Structure to receive 2.0” isocyanurate rigid insulation with an average R-value of 12.0
located above the roof deck.
07-240 EXTERIOR INSULATION AND FINISHING SYSTEM
Underside of entrances to receive EIFS system.
07-530 EDPM ROOFING
Single ply 45 mil EDPM roofing system with a ten year warranty.
Ballast to be washed, rounded riverbed gravel sized 1”-2” in diameter standard size #3
stone. Stone shall be loose laid over the complete roof at a minimum of 10 psf, 12 psf on a
continuous 20 foot wide area along the perimeter and 15 psf over the corner areas (20ft x
20ft)
Minimum R= 12 insulating value. All roof areas will slope to roof drains with interior
downspout
- 55 -
SOUND CONTROL
| (a) | Adjacent to roof penetrations and HVAC supply | ||
| (b) | Sound control will be installed as part of the Tenant Improvement allowance |
COMMON AREAS, COLUMNS, PERIMETER CONDITIONS AND BUILDING CORE
| 1. | As to initial Premises only: the inside face perimeters, interior columns, and Tenant side of core wails shall be drywalled, insulated, spackled, finished, taped and sanded from slab to finish ceiling, ready to accept eggshell paint. All work to be part of the Xxxxxxx Improvement Allowance. | ||
| 2. | All core columns, core side of core walls and base building partitions shall be framed, drywalled, insulated, spackled, finished, taped and sanded from slab to finish ceiling, ready to accept eggshell paint. In addition they shall be fully compliant with appropriate fire-ratings. All work to be part of the Xxxxxxx Improvement Allowance. | ||
| 3. | Code compliant architectural grade wood finished doors, complete with metal frame, trim and hardware, installed at, toilet rooms |
PERIMETER WINDOW COVERINGS
| 1. | Tenant and Landlord shall select a mutually acceptable window blind that shall become the Building standard and Landlord shall supply and install the system for all exterior windows. |
TOILET ROOMS
| 1. | Women’s and men’s toilet rooms, on the floor(s) occupied by Tenant, shall be designed and constructed in compliance with current code requirements, laws and recommendations for size and quantity, including the Americans with Disabilities Act. In addition, toilet rooms shall be consistent with details of design and finish developed by landlord’s architect and mutually approved by Tenant and Landlord including details and methods of installation. The minimum level of design and finish shall not be less than the following: |
| (a) | Water (hot at 110 degrees and cold) shall be provided for all toilet rooms. | ||
| (b) | Lavatory counters shall have p-xxx surface tops with bull nose leading edges and splashes with surface mounted lavatories. |
- 56 -
| (c) | All vertical wet walls shall be finished with five foot height ceramic tile. | ||
| (d) | Floors shall be finished with ceramic tile and include recessed floor drains. | ||
| (e) | The ceilings shall be ceiling tile. | ||
| (f) | Metal toilet partitions shall be ceiling mounted with concealed latch and coat hooks. | ||
| (g) | Urinal partitions shall be wall mounted with screens. | ||
| (h) | Toilets and urinals shall be floor mounted in all rest rooms. | ||
| (i) | All accessories shall be stainless steel and meet the Americans with Disabilities Act and shall include but not be limited to: |
| (1) | Recessed seat cover dispenser. | ||
| (2) | Recessed paper towel dispenser/waste receptacles. | ||
| (3) | Recessed feminine napkin vendor. | ||
| (4) | Partition mounted roll toilet tissue dispensers. | ||
| (5) | Handicap grab bar as required by code. | ||
| (6) | Lavatory soap dispensers. |
| (j) | Toilet room finishes and colors to be consistent with Tenant’s office finishes, as long as cost is not greater than building standard. Electric water coolers will be installed near toilet room entrance. |
| 2. | The layout of each rest room facility within the building shall be per code |
07-600 ARCHITECTURAL SHEET METAL
24 gal. Prefinished metal coping.
07-700 ROOF SPECIALTIES AND ACCESSORIES
Provide roof access via interior steel ladder and roof hatch. Ladder to meet all applicable
codes.
07-920 MISCELLANEOUS CAULKING
Provide all caulking required to establish a watertight seal between building components.
- 57 -
DIVISION 8: OPENINGS
08-110 EXTERIOR DOORS
Furnish and install Nine (9) exterior exit personnel doors in the precast panels. Doors are
to be 1-3/4” hollow metal doors, set in hollow metal door frames, and exterior painted to
match the wall.
All door hardware shall be as manufactured by Schlage, Yale, Xxxxxxx or an equal commercial
grade with its function appropriate for its intended usage.
Weather-stripping and door closers will be provided at all exterior doors.
08-410 GLASS AND GLAZING
Office windows shall be 1” thick thermopane set in anodized black aluminum frames with a
thermo-break design. All exterior glass shall be insulated units with the exterior glass
tinted xxxx and the interior light clear.
All window units shall be fixed sash, punched openings. The main exterior entrance door
shall be 3’ x 7’ anodized aluminum and glass to match windows. Exterior glass occurring in
doors and sidelights shall be tinted, all interior glass shall be clear. Aluminum
thresholds shall be provided for all exterior doors. Exterior glass doors shall have 1”
insulated glass.
DIVISION 9: FINISHES
09-110 METAL FRAMING AND SHEETROCK
Metal stud framing and sheet rock to be located at the fire pump room only. Tenant
improvement framing and drywall is part of T.I. allowance.
09-510 CEILINGS
The building is to be left open to roof deck.
09-600 FLOOR COVERINGS
The warehouse concrete floor slab will receive an application of quality curing and sealing
compound.
09-910 WALL PAINTING
All exterior walls will receive a base stained color finish with accent stripe.
- 58 -
DIVISION 13: SPECIAL CONSTRUCTION
13-930 FIRE PROTECTION
A complete fire protection sprinkler system is provided throughout the facility. The system
is designed in accordance with NFPA Standards, and applicable local codes. Base building
system will have brass upright heads installed.
The office area fire sprinkler system will be designed and constructed via the office
build-out allowance. Anticipated work to be turning of the heads down, installing them to
proper height, changing of head type and location.
Sprinkler riser, fire department valves, flow switches, and alarms will be installed as
required by code.
Sprinkler risers shall be fed from landlord room inside the building.
It shall be the Client’s responsibility to verify with his insurance underwriter that the
above coverage will satisfy his specific needs.
DIVISION 15: MECHANICAL
15-100 PLUMBING:
Provide domestic water service from the property line to the building pump room. Provide
PVC sanitary sewer pipe from the property line to the interior office.
Roof drains will be piped to a storm drain system. All work to be per local code.
Additional plumbing is to be a tenant improvement item.
The building will have a 3” water service.
A minimum of two points of access to domestic cold and hot water, sanitary
waste for Tenant’s distribution shall be provided along the main lines to
allow for the efficient and economic service of Tenant’s coffee bars and
service kitchens.
A minimum of one installed Americans with Disabilities Act accessible
drinking water refrigerated fountain per floor, or as per code, whichever is
greater.
15-700 HVAC
Gas and electric rooftop air handler units will be installed. Barometric exhaust,
economizer, all safeties, hi static motors, all belt drive, anti cycle timers, smoke
detectors, adjustable roof curbs with vibration isolation and basic thermostats are all
included.
- 59 -
System will be supply and return air drops included, all other runs outs etc. will be part
of the office T.I. allowance.
Landlord shall provide and operate a first class quality heating,
ventilating and air conditioning (HVAC) System with service available on a
year round basis in all occupied areas of the building Tenant shall be
permitted to use after-hours HVAC service.
| (a) | Indoor winter and summer conditions: |
| (1) | Indoor winter: 72 dg. F. Dry bulb; Indoor summer. 75 xx X. Dry bulb; with 50% Maximum Relative Humidity. |
| (b) | Outdoor summer and winter design conditions in accordance with ASHRAE publication #SPCDX, Climatic Data for Xxxxxx Xxx, 0xx Edition, May 1982 | ||
| (c) | Summer Design Condition — 0.5% Column, Winter Design Condition — Median of Extremes. | ||
| (d) | Population Density — 1/150 usf. | ||
| (e) | Cooling Load: |
| (1) | 4 xxxxx/rsf dissipated heat for lighting and equipment (not including rooms with supplemental cooling such as computer and print rooms or base building equipment). |
Outside air requirements consistent with ASHRAE Standard 62-1989.
Maximum sound levels within the space shall not exceed national standards
without vibration.
DIVISION 16: ELECTRICAL
| 16-000 ELECTRICAL |
| I Electrical Distribution Equipment: |
| - | 1 — 800 amp 480 volt three phase service. |
Electrical services shall be in accordance with serving utility requirements
including but not limited to all substructures, backboards, switchgear,
etc., for complete operating systems. The Landlord shall pay all
governmental and utility fees as required for completion of the base
building.
Landlord shall provide the main power service from utility provider to the
entry point of the Building
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Landlord shall furnish on the floor(s) occupied by Tenant all electrical
feeders, transformers, distribution panels and branch circuit breaker panels
to support the following load requirements: as part of the tenant
improvement allowance.
| (a) | Connecter Load / 208V/120V Utility Power: |
| (1) | 3 xxxxx/rsf with the number of branch circuits provided on the basis of one (1) 20 ampere, single pole, 120-volt circuit breaker per 100 rsf. |
| (b) | 227V/480V Lighting Power: |
| (1) | 2 xxxxx/rsf with the number of branch circuits based on a load of 3000 xxxxx per 20 ampere, 277 volt branch circuit. |
| (c) | Power or HVAC: |
| (1) | As required by Building to support stated electrical demand load. |
Demand Load (Consumed).
| (a) | 5 xxxxx/RSF consumed power on an annualized: basis (excluding power for HVAC) (“Electricity Usage Standard”). |
Landlord shall furnish, maintain, and install any separate metering or
measuring devices at Landlord’s sole cost.
Emergency Power.
| (a) | Landlord shall provide emergency power to operate all essential building services per codes including but not limited to: |
| (1) | Egress lighting. | ||
| (2) | Fire life safety systems. |
| II Site Lighting: |
| - | 8 — 400 watt Metal Halide wall packs. |
| III Miscellaneous: |
| - | 9 — Exit/EM combo units with battery back up. | ||
| - | Connections to HVAC units. | ||
| - | 1 — Connection to electric heater in landlord room. | ||
| - | 1 — GFI in pump room. | ||
| - | 1 8 foot strip light in pump room. |
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| - | 1 — Dedicated outlet for irrigation controller. |
| IV Site Utility: |
| - | 1 — Transformer Pad. | ||
| - | 2 — 4” PVC sleeves for ComEd electrical service. | ||
| - | 1 — 4” PVC sleeve for telephone service. | ||
| - | 1 — 4” PVC sleeves for Gas service. |
| V EMERGENCY & EGRESS LIGHTING: |
| - | Emergency and exit lighting fixtures will be provided to meet all code requirements. |
| VI LIGHTING CONTROLS: |
| - | Warehouse area lighting to be circuit breaker switched at electrical distribution panels. |
| VII FIRE ALARM EQUIPMENT: |
| - | One (1) fire alarm control panel with area annunciation, emergency standby battery powered, and provisions for central tie-in. | ||
| - | Manual pull stations at all exit doors. | ||
| - | Rooftop-mounted HVAC unit smoke detector tie-in. | ||
| - | Tie to sprinkler flow and tamper switches. | ||
| - | ADA approved horn strobe signal devices. | ||
| - | Fire pump monitoring. |
The electrical installation for the warehouse area will be complete from the utility company
supplied transformers to power and lighting panels, switches, and/or circuit breakers
throughout the building to supply heating, lighting, convenience outlets, and other items of
this specification. Office area electrical work shall be designed and constructed via the
office build-out allowance. Any costs associated with extending separate electrical
services from two separate electrical grid systems to the building lines is the
responsibility of the Client.
BASE BUILDING DOCUMENTATION
| 1. | Upon execution of Lease or prior to the commencement of the preparation of construction documents for the initial improvements of the Premises, whichever is earlier, Landlord shall notify Tenant of any variances or grandfather code items of which it is aware might affect the design or occupancy of the Premises. In addition, at Tenant s request, Landlord shall deliver to Tenant, (and warrant the accuracy of), the following Base Building drawing/documents. |
| (a) | A dimensional outline floor plan at a minimum scale of 1/8” = 1’ |
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| (b) | Structural drawings showing the size and layout of the framing members and any embedded steel for the floor, the floor(s) immediately above and below the premises, and the floor loading information. | ||
| (c) | Glass performance information, i e. shading coefficient and U value. | ||
| (d) | Mechanical documents/drawings which provide the following information: |
| (1) | Base Building heating and cooling loads and insulation information as reasonably required for load calculations of Tenant’s HVAC system. | ||
| (2) | Ductwork and piping as built documents for Base Building. | ||
| (3) | Base Building automation and controls. | ||
| (4) | Primary air distribution ductwork | ||
| (5) | Sprinkler system for an open floor plan. | ||
| (6) | Base Building heating, cooling and ventilation systems details. | ||
| (7) | Base Building water supply, drainage systems and access for Tenant construction. | ||
| (8) | Plumbing waste, vent and water connection with invert elevation. | ||
| (9) | Fire hose cabinets. | ||
| (10) | Building standards for Tenant HVAC systems (VAV boxes, thermostats, etc.). |
| (e) | Electrical As-Built Drawings/Documents showing that the following: |
| (1) | Building single line diagram, panel schedules and fire alarm riser diagram. | ||
| (2) | Fire detection and a fire warning systems drawing for Base Building and tenant areas. | ||
| (3) | Electrical panels as existing schedules and telephone backboard locations. |
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| (4) | Embedded conduit in slab on Tenant floor. | ||
| (5) | Lighting and power for the Premises and core areas. | ||
| (6) | Load calculations showing 120V and 277V capacity available for Premises. | ||
| (7) | Emergency and security systems details. | ||
| (8) | Lighting controls. | ||
| (9) | Building standards for light fixtures and general use receptacles. |
| (f) | All documents shall be provided to Tenant on CADD. |
MISCELLANEOUS
| 1. | Landlord shall not impose any management fees in connection with the design and construction of the tenant improvements. | ||
| 2. | Landlord shall not impose any fee or cost upon Tenant for pre-installed items, systems or improvements. | ||
| 3. | Landlord, at Landlord’s sole cost, shall provide on-site parking, electricity, toilet facilities, loading docks and/or the freight elevator, water, conditioned air and a dumpster location at anytime during the construction of the Tenant Improvements, Tenant’s installation and Tenants move into the Premises. | ||
| 4. | Landlord, at Landlord’s sole cost shall clean the Promises as follows: |
| (a) | Prior to Tenant’s move into the Premises, including removal of all rubbish and debris. |
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SCHEDULE 6
BASE BUILDING ELEVATION
- 65 -
[SITE PLAN]
- 66 -
SCHEDULE 7
GENERAL CONTRACTOR AGREEMENT
Xxxxxxx Cable Interior Construction Build Out
The Contractor represents that, prior to signing this agreement he has carefully reviewed the
enclosed documents and has personally inspected the site of the proposed work and is fully informed
of the conditions under which the work is to be performed. The Contractor further represents that
he has satisfied himself as to the actual conditions of the premises, existing construction, actual
elevations, site logistics including loading dock and hoisting requirements, local code
restrictions, and any other conditions affecting the completion of the intended work, it being
hereby understood and agreed that no considerations will be allowed subsequently to the
Contractor’s signing of this agreement.
The contractor is entering into this agreement with a percentage of 8%. This percentage
covers all General Conditions and Overhead/Fee for the direct construction costs of the interior
build out of Xxxxxxx Cable’s new office in Waukegan, Illinois.
Note: This document will become part of the contract between Owner and Contractor. (“Owner” as
stated in this document refers to Xxxxxxx Cable or Xxxxxxx Cable’s representative Xxxxxxx).
SCOPE OF SERVICES
PRE-CONSTRUCTION
PHASE
|
• Review project requirements with
Owner, Architect, Engineers and other consultants. |
|
• Advise Owner and Architect of
material availability and construction process
feasibility. |
||
• Review drawings throughout the
schematic and design development period for
conformance with the schedule and develop a
preliminary budget for owner’s review. Identify
long lead items and material to be pre-purchased. |
||
• Assist Owner and Architect in
reviewing the requirements of governmental agencies
having jurisdiction. Advise on the cost impact of
these requirements and suggest possible
alternatives. Include code and safety requirements. |
||
• Prepare a trade-by-trade cost
estimate based on scope documents and update the
estimate as the plans develop. Re-budget throughout
the design development and working |
- 67 -
drawing preparation periods.
• Prepare a schedule for the entire
project, analyze and update the schedule as required
and as reasonably requested by the Project Manager
and Owner. |
||
• Conduct a value engineering
analysis including cost, construction feasibility,
considerations relative to labor and material
availability and extend of off-site prefabrication. |
||
• Attend meetings as reasonably
necessary to explain cost determinations and respond
to questions that may be raised by project
consultants. |
||
• Meet with the building owner and
or his agent to ascertain regulations, procedures,
constructions standards, approval processes,
approved construction lists and procedures for
coordinating the construction work with the building
staff. |
||
• Assist Owner and Architect in the
preparation of Panattoni documents including general
and special conditions, contract formats, etc.
Documents are subject to owner’s reasonable review
and approval. |
||
• Recommend to Owner the most cost
effective subcontractor bidding procedures with
consideration for schedule and cost. Develop bid
packages, unit pricing, and alternatives for
inclusion in trade contractors’ bid proposals. |
||
• Develop a recommended bidders list
for each component of the work and submit to Project
Manager, Owner, and the Architect for review and
approval (three business day approval period). |
||
• Solicit trade bids, (3-5 in each
category) qualify, analyze and report in bid
tabulation form the results of the bidding process.
Bid packages should include unit prices and hourly
rates for all trades. Make recommendations for each
award. Upon receipt of Owner’s approval (three
business day approval period), award such work. |
||
• Assist in the procurement,
scheduling, storage, and installation of
pre-purchased and long lead times. |
||
CONSTRUCTION PHASE
|
• General Management and Coordination |
|
• Coordinate and supervise the work
being performed by trade contractors, outside
suppliers and vendors for the project’s |
- 68 -
duration. Assure that all work and furnished materials comply
with the contract documents
• The General Contractor shall
coordinate the efforts of all trade contractors to
insure that the project is on schedule and is well
constructed in accordance with the documents. |
||
• Maintain a full-time
superintendent at the job site with support staff(s)
required for the coordination and inspection of
work. |
||
• Establish on-site organization and
lines of authority in order to carry out the overall
plans of the Owner and Architect in all phases of
the project. |
||
• Establish and implement procedures
for, opening and maintaining a clear line of
communication among Owner, Architect, Consultants,
and Project Manager for all the phases of the
project. |
||
• Prepare and develop an on-site
record-keeping system to be kept on site, which will
be of sufficient detail to satisfy an audit by
Owner. Such records shall include, but shall not be
limited to, daily logs, progress schedules, manpower
breakdowns (daily by trade), financial reports,
quantities, material lists, shop drawing logs, and
the like. |
||
• Obtain the general building
permits and certificates of occupancy required by
authorities having jurisdiction over the project. |
||
• Expedite and coordinate the
procurement of all legally required permits,
licenses, and certificates associated with Panattoni
work. Assemble these documents for the trade
contractor and deliver to Owner at the completion of
the project. |
||
• Coordinate the aspects of the work
with local municipal authorities, governmental
agencies, utility companies, etc., who may be
involved in the project. |
||
• Coordinate the work of trade
contractors providing concurrent services, i.e.
furniture, security, audio visual, through final
completion and the Owner’s acceptance. A
comprehensive final inspection to insure that the
quality of labor and materials are in accordance
with the contract documents will be performed,
recorded and all deficient items are to be |
- 69 -
satisfied in a timely fashion.
• Conduct regularly scheduled job
meetings through the construction process. These
meetings should be attended by all affected parties,
who will discuss procedures, progress, problems,
scheduling and open items. Minutes to be prepared
and issued for each meeting. |
||
• Review the adequacy of the trade
contractor’s supervision, personnel and equipment
and the availability of necessary materials and
supplies. Where inadequate, direct that the trade
contractors involved take the necessary action. |
||
• Establish and provide an
inspection system for safety programs and procedures
to be followed by all trade contractors. |
||
Coordinate Testing
and Controlled
Inspection
|
• Develop and establish for Owner’s
benefit and use a quality inspection control system
as required for typical tenant construction to
ensure that the standards of construction called for
are met. |
|
• Develop a checking and testing
procedure, which will ensure that all systems are
adequately tested and balanced prior to their
acceptance. |
||
• Coordinate all testing provided by
others as required by the technical sections of the
specifications, building ownership, and as required
by the building code. Keep an accurate record of
all tests, inspections conducted, findings and test
reports. Submit final test reports to Owner and
Architect. Services of professional engineers and
Architect as required by the building code would be
performed and compensated by Owner directly. |
||
• The entire above test reports,
records and results shall be turned over to building
management upon receipt. |
||
Coordinate Shop
Drawing Submissions
|
• Prepare a detailed submittal
listing at the start of the project for approval and
use by the Architect. |
|
• Receive and review concurrent with
architect and engineer all shop drawings, cuts,
samples, delivery schedules, materials lists, etc.
for compliance with the contract documents. |
||
• Oversee the submission of all shop
drawings, composite shop and coordination drawings,
brochures and material samples. Monitor and
implement the follow of all documents and |
- 70 -
materials
to insure the proper sequence of approvals by the
Architect so as not to delay the progress of the
work. Architect and engineer review time not to
exceed five business days. Contractor shall
prioritize submittals for review.
• Establish and maintain on-site, a
complete library of all current contract documents,
approved shop drawings and approved material
samples. |
||
Review all Payment
Requests
|
• Before the first partial payment
becomes due, the General Contractor will provide a
detailed breakdown for each trade and a schedule of
values for the component of the total contract
amount consistent with the guaranteed maximum
proposal. A “pencil draw” shall be submitted to the
owner’s representative 5 days before the deadline
for each pay application. |
|
• All applications for payment will
be submitted through the General Contractor in
accordance with established procedures. Trade
contract applications for payment along with
trailing waivers of lien and an affidavit of payment
made by each trade contractor must accompany each
application. |
||
• Recommend to Owner the institution
of any partial or complete default action against
any contractor(s). Where deemed necessary,
determine amounts due under default settlement and
prepare budget estimated for completion of work. |
||
Review and
Coordinate All
Change Order
Requests
|
• Contractor will notify owner of
any change items with order of magnitude cost
foreseen by general contractor within five (5)
business days of correspondence and/or discovery of
latent conditions indicating probable change order. |
|
• Receive and review all change
order requests from the subcontractors. Review unit
prices, time and material charges and similar items.
Consult with Project Manager, Architect, and after
mutual agreement, submit recommendations to Owner. |
||
• Review all changes proposed by
Owner and/or Architect and make recommendations
regarding the impact with respect to cost and/or
schedule. |
||
• Ensure that all approved change
orders are satisfactorily carried out in the
construction process. |
- 71 -
• Implement the specification and
Owner’s procedures for the processing of change
orders, including applications for extensions of
time. |
||
• With respect to portions of the
work performed by change orders, or otherwise, on a
time-and-material, unit cost, or similar basis,
which requires the keeping of records and
computations, maintain adequate cost accounting
records to satisfy the specifications and Owner’s
procedures, if any. |
||
Provide and
Supervise General
Conditions Items
|
• The General Contractor will
provide and supervise general condition items.
[General condition items will be clearly stated and
itemized by the General Contractor in this
proposal]. All items purchased specifically to
satisfy general conditions for this project will be
turned over to the Owner in good conditions, or be
properly disposed of, at the conclusion of the
project. |
|
Provide Scheduling
Administration
|
• During the course of construction,
the General Contractor will make an analysis of the
materials and equipment that will be required on the
job. He will prioritize shop drawing submission and
approval, off site fabrication and manufacturing,
and delivery dates required to meet with job
progress. He will expedite material and equipment
deliveries through the course of construction. |
|
POST CONSTRUCTION
|
• At the proper time, coordinate the
completion of punch lists, together with the
Architect and Owner, indicating the items or work
remaining to be accomplished, and insure that these
items are completed in an expeditious manner.
Prepare certificates of substantial and final
completion, if required by local jurisdiction. |
|
• Assemble all guarantees,
warranties, etc., as required by the contract
documents and forward two copies to Project Manager,
and one copy to the Architect, certifying that they
are complete and cover all work as required. |
||
• Coordinate and expedite the
submission of operating manuals and similar
instruction; insure that they are complete and cover
all items as required by the contract documents. |
||
• Receive, check and forward to
Project Manager all releases of claims required
prior to issuance of final certificate of completion
and final payments to subcontractors. Make
recommendations on the withholding of payments to
subcontractors where deemed necessary to protect
client. |
- 72 -
Determine value of uncorrected work.
• Expedite the contractor’s
preparation of record drawings of the entire project
in accordance with the terms of the specifications.
The complete record drawings shall be subject to the
reasonable approval of the Architect and submitted
to Owner for its records upon final completion of
the project. |
||
• After completion of project,
General Contractor will be responsible for
expeditious follow-up and correction of all punch
list items. |
- 73 -
General Conditions
The undersigned, declares that they have carefully reviewed and examined the information contained
in this agreement and hereby proposes to complete the services requested including labor, material,
equipment, supervision, insurance, freight, taxes, overhead and profit for the above mentioned
project. All items as listed below are included in the general condition costs.
Plans, Surveys, Permits
Blueprints
Blueprints
Field Office Expense
Misc. supplies
Postage/shipping/messenger
Computers
Computer service/internet
Office fax machine
Office printer
Office copier
Telephones
Miscellaneous equipment/tools
Misc. supplies
Postage/shipping/messenger
Computers
Computer service/internet
Office fax machine
Office printer
Office copier
Telephones
Miscellaneous equipment/tools
Temporary Facilities
First Aid Safety
Field office
Telephone service
Temporary lighting
Temporary electric service
Protection (Existing Conditions)
Temporary signage
Temporary toilets
First Aid Safety
Field office
Telephone service
Temporary lighting
Temporary electric service
Protection (Existing Conditions)
Temporary signage
Temporary toilets
Supervision
(Shared) Project Manager
Full Time Project Superintendent
(Shared) Project Manager
Full Time Project Superintendent
Incidental Construction
Construction security
Communications (radios/cell phone)
Miscellaneous
Construction security
Communications (radios/cell phone)
Miscellaneous
Clean-Up
Final clean
Dumpster/rubbish removal
Final clean
Dumpster/rubbish removal
- 74 -
The contractor is entering into this agreement with a percentage of 8% to cover all General
condition cost and Overhead/Fee for the direct construction costs.
Cost and/or schedule changes to the GMP consisting of additions, deletions or modifications
shall be authorized by a written scope change signed by Project Manager and/or Owner. Contractor
shall provide detailed back up and pricing so that the cost claim can be properly evaluated.
shall be authorized by a written scope change signed by Project Manager and/or Owner. Contractor
shall provide detailed back up and pricing so that the cost claim can be properly evaluated.
Changes in the work (deducts or additions)
(As percentage of the direct cost change)
| Deducts | Deducts | |||||||||||
| Adds | (Pre-construction) | (During Construction) | ||||||||||
General Conditions |
4.0 | % | 4.0 | % | 4.0 | % | ||||||
Overhead and Profit |
4.0 | % | 4.0 | % | 0 | % | ||||||
Xxxxxxx Cable reserves the right to terminate the Contractor’s agreement, without cause, upon five
(5)-business days written notice to the Contractor. After such termination, Owner shall reimburse
Contractor for that portion of the work in place, or services rendered, on the date of termination
and for justifiable losses arising from Contractor’s advanced commitments, which cannot be
canceled.
Signature Of Contractor
| Signed By: | ||||
| Title: | ||||
| Dated: | ||||
| Company Name: | ||||
| Business Address: | ||||
| Telephone: | ||||
CONTRACT AGREEMENT
| • | Contract Format is an AIA Document A111, Standard Form Of Agreement Between Owner And Contractor, 1997 Edition And The General Conditions Of Contract For Construction, AIA A201, 1997 Edition. |
- 75 -
| • | Attachments to the contract will include of this General Contractor Agreement |
- 76 -
Exhibit D
Schedule of Base Rent
| Base Rental Rate | ||||||||||||
| Lease Year | Per Square Foot | Annual Base Rent | Monthly Base Rent | |||||||||
| Base Rent abated for first six (6) months of Term | ||||||||||||
1 |
$ | 11.50 | $ | 347,012.50 | $ | 28,917.71 | ||||||
2 |
$ | 11.79 | $ | 355,687.81 | $ | 29,640.65 | ||||||
3 |
$ | 12.08 | $ | 364,580.01 | $ | 30,381.67 | ||||||
4 |
$ | 12.38 | $ | 373,694.51 | $ | 31,141.21 | ||||||
5 |
$ | 12.69 | $ | 383,036.87 | $ | 31,919.74 | ||||||
6 |
$ | 13.01 | $ | 392,612.79 | $ | 32,717.73 | ||||||
7 |
$ | 13.34 | $ | 402,428.11 | $ | 33,535.68 | ||||||
8 |
$ | 13.67 | $ | 412,488.82 | $ | 34,374.07 | ||||||
9 |
$ | 14.01 | $ | 422,801.04 | $ | 35,233.42 | ||||||
10 |
$ | 14.36 | $ | 433,371.06 | $ | 36,114.26 | ||||||
- 77 -
Exhibit E
Form of Tenant Estoppel Certificate
Lease Date:
|
, 20 | |||
Landlord: |
||||
Tenant: |
||||
Premises:
|
Unit No. | |||
Rentable Area:
|
square feet. |
The undersigned, being the Tenant under the above-described Lease hereby certifies to
(“Lender” or “Purchaser”) as follows:
1. The Lease requires monthly base rent installments of $ each, commencing on
, 20 .
2. No advance rental or other payment has been made in connection with the Lease.
3. A security deposit in the amount of $ is being held by Landlord, which amount
is not subject to any setoff or reduction or to any increase for interest or other credit due to
Tenant. The Lease
is or is not (check applicable provision) guaranteed by a third
party. If the Lease is guaranteed by a third party, the name of the guarantor is .
4. The Lease is a valid lease and is in full force and effect. Attached hereto is a true and
complete copy of the Lease and all amendments thereto and other agreements relating to the Lease
and the rent payable thereunder, which documents represent the entire agreement between the
parties.
5. There is no existing default by Landlord, or to Tenant’s knowledge, by Tenant under the Lease,
and to Tenant’s knowledge, no event has occurred which, with the giving of notice or the passage of
time, or both, would constitute an event of default by Landlord or by Tenant under the Lease.
6. The
Lease provides for a primary term of
months, commencing on , 20
and ending on , 20 . The Lease contains an option
for
) additional terms of
years each upon the terms
and conditions as set forth in the Lease.
7. There are no actions, voluntary or involuntary, pending against Tenant under the bankruptcy laws
of the United States or any state thereof.
8. Tenant is entitled to no rent concessions under the Lease other than the following:
9. All construction work to be completed to date by Landlord in the Premises has been
- 78 -
completed.
10. Tenant has obtained or will obtain all necessary licenses and permits to carry on its business
at the Premises prior to opening for business.
11. Tenant has received no notice of any claim, litigation or proceeding, pending or threatened,
against or relating to Tenant that would adversely affect Tenant’s ability to fulfill its
obligations under the Lease or with respect to the Premises. Tenant has received no notice of, and
has no knowledge of, any violations of any federal, state, county or municipal statutes, laws,
codes, ordinances, rules, regulations, orders, decrees or directives relating to the use or
condition of the Premises or Tenant’s operation thereon. Tenant has received no notice from any
governmental body or agency or from any person or entity with respect to any actual or threatened
taking of the Property or any portion thereof for any public or quasi-public purpose by the
exercise of condemnation or eminent domain.
This certification is made knowing that [Lender] [Purchaser] is relying upon the
representations herein made.
| TENANT: | ||||||
| By: | ||||||
| Name: | ||||||
| Its: | ||||||
- 79 -
Exhibit F
Subordination, Non-Disturbance and Attornment Agreement
This document was prepared by, and
|
|||||
after recording, return to: |
|||||
Xxxx X. Xxxxxxx, Esq. |
|||||
ABN AMRO North America, Inc. |
|||||
000 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 000 |
|||||
Xxxxxxx, Xxxxxxxx 00000
|
This space reserved for Recorders use only. | ||||
Permanent Tax Index Number:
Property Address:
Xxxxxx xx Xxxxxxxx xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxxxx 00000
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT dated as of ___,
2003 (the “Agreement”), is executed by and among PANATTONI DEVELOPMENT COMPANY, LLC, a California
limited liability company (the “Landlord”), XXXXXXX CABLE, INC., a Delaware corporation
(the “Tenant”), and LASALLE BANK NATIONAL ASSOCIATION, a national banking association (the
“Lender”).
R
E C I T A L S:
A. The Lender is the mortgagee under that certain Construction Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing dated as of , 2003, to be
recorded concurrently herewith (the “Mortgage”), which Mortgage encumbers the Real Estate
(as hereinafter defined) and secures a principal indebtedness in the maximum amount of
00/100 Dollars ($ ).
B. The Tenant has entered into that certain Lease dated as of August 27, 2003 with the
Landlord (the “Lease Agreement”; the Lease Agreement, together with all amendments and
modifications thereof, being collectively referred to herein as the “Lease”), pursuant to
which the Tenant has leased certain premises (the “Leased Premises”) consisting of the
parcel of land (the
- 80 -
“Land”) legally described on Exhibit “A” attached hereto and made a part
hereof, and the improvements thereon, consisting of approximately Thirty Thousand One Hundred
Seventy Five (30,175) rentable square feet of space in the building (the “Building”; the
Land and Building being collectively referred to herein as the “Real Estate”) to be
constructed on the Land.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
A
G R E E M E N
T S:
1. The Tenant represents and warrants to the Lender that the Lease constitutes the entire
agreement between the Tenant and the Landlord with respect to the Leased Premises and there are no
other agreements, written or verbal, governing the tenancy of the Tenant with respect to the Leased
Premises.
2. The Tenant has executed and delivered to the Lender that certain Tenant Estoppel
Certificate dated on or about the date hereof (the “Estoppel Certificate”). The provisions of the
Estoppel Certificate are hereby incorporated into this Agreement as if fully set forth in this
Agreement in their entirety, and the Tenant acknowledges that the Lender will be relying on the
statements made in the Estoppel Certificate in determining whether to disburse the proceeds of the
loan secured by the Mortgage and whether to enter into this Agreement.
3. Prior to pursuing any remedy available to the Tenant under the Lease, at law or in equity
as a result of any failure of the Landlord to perform or observe any covenant, condition, provision
or obligation to be performed or observed by the Landlord under the Lease (any such failure being
hereinafter referred to as a “Landlord’s Default”), the Tenant shall: (a) provide the
Lender with a notice of the Landlord’s Default, specifying the nature thereof, the section of the
Lease under which such Landlord’s Default arose, and the remedy which the Tenant will elect under
the terms of the Lease or otherwise, and (b) allow the Lender not less than thirty (30) days
following receipt of notice of the Landlord’s Default to cure the same; provided, however, that, if
such Landlord’s Default is capable of being cured but is not readily curable within such thirty
(30) day period, the Tenant shall give the Lender such additional time as the Lender may reasonably
need to obtain possession and control of the Real Estate and to cure such the Landlord’s Default so
long as the Lender is diligently pursuing a cure. The Tenant shall not pursue any remedy available
to it as a result of any the Landlord’s Default unless the Lender fails to cure same within the
time period specified above. For purposes of this Section 3, a the Landlord’s Default shall not be
deemed to have occurred until all grace and/or cure periods applicable thereto under the Lease have
lapsed without the Landlord having effectuated a cure thereof.
4. Subject to the provisions contained in Section 6 hereof, the Tenant covenants with the
Lender that the Lease shall be subject and subordinate to the lien and all other provisions of the
Mortgage and to all modifications and extensions thereof, to the full extent of all principal,
interest and all other amounts now or hereafter secured thereby and with the same force and effect
as if the Mortgage had been executed and delivered prior to the execution and delivery of the
Lease. Without limiting the generality of the foregoing subordination provision, the Tenant
- 81 -
hereby agrees that any of its right, title and interest in and to insurance proceeds and
condemnation awards (or other similar awards arising from eminent domain proceedings) with respect
to damage to or the condemnation (or similar taking) of any of the Real Estate, shall be subject
and subordinate to the Lender’s right, title and interest in and to such proceeds and awards.
5. The Tenant acknowledges that the Landlord has collaterally assigned to the Lender all
leases affecting the Real Estate, including the Lease, and the rents and other amounts, including,
without limitation, lease termination fees, if any, due and payable under such leases. In
connection therewith, the Tenant agrees that, upon receipt of a notice of a default by the Landlord
under such assignment and a demand by the Lender for direct payment to the Lender of the rents due
under the Lease, the Tenant will honor such demand and make all subsequent rent payments directly
to the Lender. The Tenant further agrees that any Lease termination fees payable under the Lease
shall be paid jointly to the Landlord and the Lender.
6. The Lender agrees that so long as the Tenant is not in default under the Lease:
(a) The Tenant shall not be named or joined as a party in any suit, action or
proceeding for the foreclosure of the Mortgage or the enforcement of any rights under the
Mortgage (unless the Tenant is a necessary party under applicable law); and
(b) The possession by the Tenant of the Leased Premises and the Tenant’s rights thereto
shall not be disturbed, affected or impaired by, nor will the Lease or the term thereof
(including any extended term or renewal term) be terminated or otherwise materially
adversely affected by (i) any suit, action or proceeding for the foreclosure of the Mortgage
or the enforcement of any rights under the Mortgage, or by any judicial sale or execution or
other sale of the Leased Premises, or any deed given in lieu of foreclosure, or (ii) any
default under the Mortgage.
7. If the Lender or any future holder of the Mortgage shall become the owner of the Real
Estate by reason of foreclosure of the Mortgage or otherwise, or if the Real Estate shall be sold
as a result of any action or proceeding to foreclose the Mortgage or transfer of ownership by deed
given in lieu of foreclosure, the Lease shall continue in full force and effect, without necessity
for executing any new lease, as a direct lease between the Tenant and the new owner of the Real
Estate as “landlord” upon all the same terms, covenants and provisions contained in the Lease
(subject to the exclusions set forth in subsection (b) below), and in such event:
(a) The Tenant shall be bound to such new owner under all of the terms, covenants and
provisions of the Lease for the remainder of the term thereof (including the extension
periods, if the Tenant elects or has elected to exercise its options to extend the term),
and the Tenant hereby agrees to attorn to such new owner and to recognize such new owner as
“landlord” under the Lease without any additional documentation to effect such attornment
(provided, however, if applicable law shall require additional documentation at the time the
Lender exercises its remedies then the Tenant shall execute such additional documents
evidencing such attornment as may be required by applicable law);
- 82 -
(b) Such new owner shall be bound to the Tenant under all of the terms, covenants and
provisions of the Lease for the remainder of the term thereof (including the extension
periods, if the Tenant elects or has elected to exercise its options to extend the term);
provided, however, that such new owner shall not be:
(i) liable for any act or omission of any prior landlord (including the
Landlord) that is not then continuing under the Lease;
(ii) subject to any offsets or defenses which the Tenant has against any prior
landlord (including the Landlord) unless the Tenant shall have provided the Lender
with (A) notice of the Landlord’s Default that gave rise to such offset or defense,
and (B) the opportunity to cure the same, all in accordance with the terms of
Section 3 above;
(iii) bound by any base rent, percentage rent, additional rent or any other
amounts payable under the Lease which the Tenant might have paid in advance for more
than the current month to any prior landlord (including the Landlord);
(iv) liable to refund or otherwise account to the Tenant for any security
deposit not actually paid over to such new owner by the Landlord;
(v) bound by any amendment or modification of the Lease made without the
Lender’s consent;
(vi) bound by, or liable for any breach of, any representation or warranty or
indemnity agreement contained in the Lease or otherwise made by any prior landlord
(including the Landlord); or
(vii) personally liable or obligated to perform any such term, covenant or
provision, such new owner’s liability being limited in all cases to its interest in
the Real Estate, provided, however, that nothing contained in this section shall
preclude the Tenant from naming such new owner as a party defendant in any action
brought under the Lease, so long as execution on any judgment against such new owner
is limited in all cases to such new owner’s interest in the Real Estate.
8. Any notices, communications and waivers under this Agreement shall be in writing and shall
be (i) delivered in person, (ii) mailed, postage prepaid, either by registered or certified mail,
return receipt requested, or (iii) by overnight express carrier, addressed in each case as follows:
If to the Lender:
|
LaSalle Bank National Association | |
| 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Commercial Real Estate C | ||
| Fax: (000) 000-0000 |
- 83 -
If to the Landlord:
|
Panattoni Development Company, LLC | |
| 00000 Xxxx Xxxxxxx, Xxxxx 000 | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Mr. Xxxxxxx Xxxxxx | ||
| Fax: (000) 000-0000 | ||
with a copy to:
|
Panattoni Law Firm | |
| 0000 Xxxxxxx Xxxx, Xxxxx X | ||
| Xxxxxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxxx X. Xxxx, Esq. | ||
| Fax: (000) 000-0000 | ||
If to the Tenant:
|
Xxxxxxx Cable, Inc. | |
| 0000 Xxxxxxxx Xxxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Xx. Xxxx Xxxxxx | ||
| Fax: (000) 000-0000 | ||
with a copy to:
|
Xxxxxx, Xxxxx & Samotny Ltd. | |
| 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Xxxx X. Xxxxxx, Esq. | ||
| Fax: (000) 000-0000 |
or to any other address as to any of the parties hereto, as such party shall designate in a written
notice to the other party hereto. All notices sent pursuant to the terms of this section shall be
deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by
overnight, express carrier, then on the next federal banking day immediately following the day
sent, or (iii) if sent by registered or certified mail, then on the earlier of the third federal
banking day following the day sent or when actually received.
9. The Tenant acknowledges and agrees that the Lender will be relying on the representations,
warranties, covenants and agreements of the Tenant contained herein and that any default by the
Tenant hereunder which, if capable of being cured, continues uncured for a period of twenty one
(21) days after the Tenant receives notice from the Mortgagee of such default, shall permit the
Lender, at its option, to exercise any and all of its rights and remedies at law and in equity
against the Tenant and to join the Tenant in a foreclosure action thereby terminating the Tenant’s
right, title and interest in and to the Leased Premises.
10. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto,
their respective successors and assigns and any nominees of the Lender, all of whom are entitled to
rely upon the provisions hereof. This Agreement shall be governed by the laws of the State of
Illinois.
11. This Agreement may be executed in multiple counterparts and all of such counterparts
together shall constitute one and the same Agreement.
- 84 -
IN WITNESS WHEREOF, the parties hereto have executed this Subordination, Non-Disturbance and
Attornment Agreement the day and year first above written.
| LANDLORD: | |||||
| PANATTONI DEVELOPMENT COMPANY, LLC, a California limited liability company |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| TENANT: | |||||
| XXXXXXX CABLE, INC., a Delaware corporation | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
| LENDER: | |||||
| LASALLE BANK NATIONAL ASSOCIATION, a national banking association |
|||||
| By: | |||||
| Name: | |||||
| Title: | |||||
- 85 -
GKF:me
|
||||||||
September 10, 2003 |
||||||||
(96912262) |
||||||||
STATE OF ILLINOIS
|
) | |||||||
| ) | SS. | |||||||
COUNTY OF
|
) |
The undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby
certify that
the
of PANATTONI
DEVELOPMENT COMPANY, LLC, a California limited liability company, who is personally known to me to
be the same person whose name is subscribed to the foregoing instrument as such ,
appeared before me this day in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary act of said limited
liability company, for the uses and purposes therein set forth.
GIVEN
under my hand and notarial seal, this day of
, 2003.
| Notary Public | ||
| My Commission expires: | ||
STATE OF ILLINOIS
|
) | |||||||
| ) | SS. | |||||||
COUNTY OF
|
) |
The undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby
certify that , the , of XXXXXXX CABLE, INC.,
a Delaware corporation, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that
as such , he/she signed and delivered the said instrument as
his/her own free and voluntary act and as the free and voluntary act of said corporation, for the
uses and purposes therein set forth.
- 86 -
GIVEN
under my hand and notarial seal,
this day of , 2003.
| Notary Public | ||
| My Commission expires: | ||
STATE OF ILLINOIS
|
) | |||||||
| ) | SS. | |||||||
COUNTY OF XXXX
|
) |
The undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby
certify that , the
, of LASALLE BANK NATIONAL
ASSOCIATION, a national banking association, who is personally known to me to be the same person
whose name is subscribed to the foregoing instrument as such ,
appeared before me this day in person and acknowledged that he/she signed and delivered the said
instrument as his/her own free and voluntary act and as the free and voluntary act of said banking
association, for the uses and purposes therein set forth.
GIVEN
under my hand and notarial seal, this
day of , 2003.
| Notary Public | ||
| My Commission expires: | ||
GKF:me
September 10, 2003
(96912262)
September 10, 2003
(96912262)
- 87 -
EXHIBIT “A”
LEGAL DESCRIPTION OF PREMISES
[See next page]
Property Address of Premises
Xxxxxx xx Xxxxxxxx xxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxxxx, Xxxxxxxx 00000
Permanent Tax Identification Number of Premises:
GKF:me
September 10, 2003
(96912262)
September 10, 2003
(96912262)
- 88 -
PARCEL 2:
(XXXXXXX}
That part of Lots 139 thru 1 51, inclusive, in Amhurst Lake Business Park Phase One, being a
subdivision of parts of the Southwest Quarter of Section 31, Township 45 North, Range 12, and the
Southeast Quarter of Section 36, Township 45 North, Range 11, and the Northeast Quarter of Section
1, Township 44 North, Range 11, and the Xxxxxxxxx Xxxxxxx Xx Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx
12-;-East of the Third Principal Meridian, according to the Plat thereof recorded September 7, 1989
as Document 2828136 and according to the Certificate of Correction thereof recorded October 3,1989
as Document 2837031, described as follows: Beginning at the Southeast corner of said Lot 139;
thence South 84 degrees 28 minutes 00 seconds West along the South line of said Lot 139 a distance
of 20.85 feet thence North 26 degrees 56 minutes 00 seconds West 31.02 feet; thence North 26
degrees 04 minutes 00 seconds West 61.88 feet; thence North 21 degrees 14 minutes 00 seconds West
49.46 feet; thence North 42 degrees 06 minutes 57 seconds West 29.86 feet; thence South 65 degrees
28 minutes 00 seconds West 22.00 feet; thence South 50 degrees 06 minutes 00 seconds West 30.00
feet; thence South 27 degrees 07 minutes 00 seconds West 30.00 feet; thence South 27 degrees 50
minutes 00 seconds West 60.00 feet; thence South 68 degrees 26 minutes 00 seconds West 54.00 feet;
thence South 77 degrees 43 minutes 00 seconds West 47.00 feet; thence South 64 degrees 35 minutes
00 seconds West 28.00 feet; thence South 38 degrees 13 minutes 00 seconds West 40.00 feet to a
point on the South line of said Lot 139; thence South 84 degrees 28 minutes 00 seconds West along
the South line of said Lot 139 a distance of 16.49 feet to the Southwest corner of said Lot 139;
thence North 57 degrees 14 minutes 11 seconds West 42.65 feet to a point on a line. 33.47 feet West
of and parallel with the East line of said Xxxx 000 xxxx 000, xxxx xxxxx being also 73.00 feet
North of, as measured perpendicular to, the South line of said Lot 151; thence North 05 degrees 32
minutes 00 seconds West, along said parallel line, being 33.47 feet West of the East line of said
Lots 146 thru 151, a distance of 496.87 feet; thence North 21 degrees 22 minutes 54 seconds East,
90.1 5 feet to a point on a line 7.34 feet East of and parallel with the West line of said Lot 145;
thence North 05 degrees 32 minutes 00 seconds West along said parallel line, being 7.34 feet East
of the West line of said Lot 145 a distance of 42.89 feet to a point on a curve on the North line
of said Lot 145; thence Easterly along the arc of a curve, being the Northerly line of said Lot
145, concave to the South, having a radius of 862.73 feet, having a chord bearing of South 89
degrees 16 minutes 58 seconds East for a distance of 171.14 feet to a point of tangency; thence
South 83 degrees 36 minutes 00 seconds East 105.74 feet to a point of curvature; thence
Southeasterly along the arc of a curve concave to the Southwest, having a radius of 40.00 feet,
having a chord bearing of South 41 degrees 48 minutes 00 seconds East for a distance of 58.36 feet
to a point of tangency; thence South 00 degrees 00 minutes 00 seconds East 187.28 feet to a point
of curvature; thence Southerly along the arc of a curve, concave to the Rug 2803 12:59p Midwest
Technical Consult 6305050318 p.5 East, having a radius of 780.00 feet7 having a chord bearing of
South 12 degrees 00 minutes 00 seconds East for a distance of 326.73 feet to a point of tangency;
thence South 24 degrees 00 minutes 00 seconds East 57.39 feet to the Place of Beginning; except
that part described as follows:
That part of Lots 146 thru 151, inclusive, in Amhurst Lake Business Park Phase One, being a
Subdivision of parts of the Southwest Quarter of Section 31, Township 45 North, Range 12, and the
Southeast Quarter of Section 36, Township 45 North, Range 11, and the Northeast Quarter of Section
1, Township 44 North, Range 11,
and the Northwest Quarter of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx
00, Xxxx of the Third Principal Meridian, according to the Plat thereof recorded
- 89 -
September 7, 1989 as Document 2828136 and according to the Certificate of Correction thereof
recorded October 3, 1989 as Document 2837031, described as follows:
Commencing at the Northeast corner of said Lot 146; thence South 05 degrees 32 minutes 00 seconds
East along the East line of said Lot 146 a distance of 57.39 feet to the Place of Beginning; thence
continuing South 05 degrees 32 minutes 00 seconds East along the East line of said Lot 146 a
distance of 47.32 feet; thence South 21 degrees 22 minutes 54 seconds East 26.51 feet to a point on
a line 12.00 feet West of and parallel with the East line of said lots 146 through 151, inclusive;
thence South 05 degrees 32 minutes 00 seconds East along said parallel line, being 12.00 feet West
of the East line of said lots 146 through 151, inclusive, a distance of 475.00 feet; thence South
84 degrees 28 minutes 00 seconds West 21.47 feet to a point on a line 33.47 feet West of and
parallel with the East line of said Lots 146 through 151, inclusive; thence North 05 degrees 32
minutes 00 seconds West along said parallel line, being 33.47 feet West of the East line of said
Lots 146 through 151, inclusive, 480.14 feet; thence North 21 degrees 22 minutes 54 seconds East
73.94 feet to the Point of Beginning; except that part of the above described parcel, lying North
of a line 12.40 feet South of and parallel with, the North line of Lots 143 and 148 in said Amhurst
lake Business Park Phase One, in lake County, Illinois.
233-108:
XXXXXXX/1-2
- 90 -
Exhibit G
Site Plan
[See next page]
- 91 -
[SITE PLAN]
- 92 -
Exhibit H
Location of the Monument Sign
[See next page]
- 93 -
[SITE PLAN]
- 94 -
FIRST AMENDMENT
TO LEASE
TO LEASE
FIRST AMENDMENT TO LEASE, dated as the 15th day of August, 2005 (the “Effective Date”), by and
between HQ2 PROPERTIES, LLC, an Illinois limited liability company (“Landlord”), and XXXXXXX CABLE,
INC., a Delaware corporation (“Tenant”).
WITNESSETH:
WHEREAS, Landlord (through its predecessors in interest) and Tenant have heretofore entered
into that certain Lease, dated September 11, 2003, with a Commencement Date of July 20, 2004 (the
“Lease”), in respect of that certain improved real estate commonly known as 0000 X. Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxx 00000 (the “Property”); and
WHEREAS, in connection with Landlord’s purchase of the Property, as of the Effective Date the
parties hereto desire to amend the Lease as hereinafter more specifically set forth.
NOW, THEREFORE, IT IS AGREED:
1. The “Term” of the Lease as referenced in Section 2 thereof shall mean the period of time
commencing on July 20, 2004 and ending on September 30, 2015.
2. With reference to Section 4 thereof and Exhibit D attached thereto, the
Commencement Date of the Lease shall be deemed to have occurred on July 20, 2004 and the first
Lease Year shall be deemed to have ended on July 31, 2005, and each Lease Year thereafter shall be
the twelve (12) month period ending on July 31. For the period commencing on August 1, 2014 and
ending on September 30, 2015, the Base Rental Rate Per Square Foot shall be $14.72, the Annual Base
Rent shall be $444,176.00 and the Monthly Base Rent shall be $37,014.67.
3. Section 18.5 thereof shall be amended to provide that Tenant shall maintain the
policies of insurance as more specifically referenced therein.
4. Section 21 thereof shall be amended to provide that any notice to Landlord shall be
sent c/o the following address:
| 0000 X. Xxxxxxx Xxxxx | ||
| Xxxxxxxx, Xxxxxxxx 00000, | ||
| Attention: Xxxx Xxxxxx, President | ||
| Fax No.: (000) 000-0000 |
- 95 -
| With a copy to: | ||
| Xxxxxx Xxxxx & Samotny Ltd. | ||
| 000 Xxxxx Xxxxxx Xxxxx | ||
| Xxxxx 000 | ||
| Xxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Xxxx X. Xxxxxx | ||
| Fax No.: (000) 000-0000, |
and the street address of Tenant shall be changed to 0000 X. Xxxxxxx Xxxxx.
5. Section 28 thereof shall be amended by deleting Subsections 28.1 and
28.2, redesignating current Subsection 28.3 as 28.1 and redesignating current
Subsection 28.4 as Subsection 28.2, and with respect to the latter deleting any
reference therein to the Option to Purchase deleted hereby.
6. All terms used herein shall have the meanings ascribed to them in the Lease.
7. By their execution hereof, each of Landlord and Tenant hereby represents that
notwithstanding any assignments of the landlord’s interest between the date of the Lease and the
date hereof, the provisions of the Lease have not changed from the date of the Lease except as
amended by this First Amendment, and each of Landlord and Tenant hereby ratify and affirm the
provisions of the Lease as amended hereby.
[REMAINDER OF PAGE LEFT BLANK]
- 96 -
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease as of the
Effective Date.
| TENANT | LANDLORD | ||||||||
| XXXXXXX CABLE, INC., a Delaware | HQ2 PROPERTIES, LLC, an Illinois | ||||||||
| Corporation | limited liability company | ||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx | ||||||
| Name: Xxxxxxx X. Xxxxxx | Name: Xxxxxxx X. Xxxxxx | ||||||||
Its:
|
Executive Vice President | Its: | Executive Vice President | ||||||
- 97 -
Assignment and Assumption of Lease
This Assignment and Assumption of Lease (the “Assignment”) is made this 15th day of August, 2005
(the “Effective Date”) by and between PANATTONI PROPERTIES DE, LLC, a Delaware limited liability
company, JP PORTFOLIO, LLC, an Illinois limited liability company and CARMEL RIVER, LLC, a Delaware
limited liability company (collectively, the “Assignor”), and HQ2 PROPERTIES, LLC, a Delaware
limited liability company or its assignees (the “Assignee”).
RECITALS
A. This Assignment relates to that certain building which consists of approximately thirty
thousand one hundred seventy-five (30,175) rentable square feet (“Premises”), located at 0000
Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (“Property”).
B. Assignor’s predecessor in interest, Panattoni Development Company, LLC, a California
limited liability company, as Landlord, entered into and executed that certain Lease dated
September 11, 2003 with Xxxxxxx Cable Inc., a Delaware corporation, as Tenant (the “Lease”), a copy
of which is more particularly set forth in Exhibit “A”, attached hereto and made a part
hereof.
C. For good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, Assignor intends to assign and transfer, as of the Effective Date, to Assignee any
and all right, title, and interest of Assignor in the Lease, and Assignee intends to accept such
assignment and transfer and to assume any and all right, title, and interest of Assignor in the
Lease, subject to the terms and conditions of this Assignment and to assume, fulfill, perform, and
observe each and every condition, covenant, and obligation of Assignor under the Lease as of the
Effective Date.
D. The parties agree that this Assignment is intended to be an absolute and present assignment
from Assignor to Assignee relating to the Lease as of the Effective Date. The assumption is
intended to be an absolute and present assumption by Assignee from Assignor of the Lease as of the
Effective Date.
AGREEMENT
| 1. | Assignment. Assignor hereby assigns and transfers to Assignee any and all right, title, interest and benefits in the Lease as of the Effective Date and Assignee accepts from Assignor such right, title and interest, subject to the terms and conditions set forth in this Assignment, in and to the Lease as of the Effective Date. |
- 98 -
| 2. | Assumption. Assignee assumes and agrees to perform, observe, and fulfill, all the terms, covenants, conditions, and obligations required to be performed and fulfilled by Assignor under the Lease on or after the Effective Date. |
| 3. | Warranties and Covenants. |
| a. | Warranties of Assignor. |
i. Assignor hereby warrants and represents to Assignee that as of the Effective Date
Assignor is the holder of all the rights, title and interest as Landlord under the
Lease.
ii. Other than as required by the terms and conditions in the Lease, Assignor has
neither made, nor permitted to be made, any Assignment other than this Assignment of
any of its rights relating to the Lease to any other person or entity.
iii. No action has been brought or threatened which in any way would interfere with
the right of Assignor to execute this Assignment and perform all of Assignor’s
obligations contained herein.
iv. In the event of any claims against Assignee arising under the Lease from acts
occurring prior to the Effective Date, Assignor agrees to indemnify, defend, and
hold Assignee harmless against any such claims, liabilities, damages or losses to
include payment of any reasonable attorneys’ fees and costs.
| b. | Covenants of Assignee and Limitation on Assignee’s Liability. Assignee hereby covenants and agrees with Assignor as follows: |
i. Assignee shall assume, fulfill, perform, and observe each and every material
condition and obligation of Assignor contained in the Lease on or after the
Effective Date.
ii. In the event of any claims against Assignor arising under the Lease from acts
occurring after the Effective Date, Assignee agrees to indemnify, defend, and hold
Assignor harmless against any such claims, liabilities, damages or losses to include
payment of any reasonable attorneys’ fees and costs.
| c. | Prorations Under the Lease. The parties agree that all items subject to proration in the Lease shall be prorated between Assignor and Assignee as of the Effective Date. |
| 4. | General Provisions. |
| a. | Successors and Assigns. This Assignment shall inure to the benefit of and be binding upon Assignor and Assignee and their respective heirs, executors, legal representatives, successors and assigns. Whenever a reference is made to |
- 99 -
| Assignor or Assignee, such reference shall be deemed to include a reference to the heirs, executors, legal representatives, successors and assigns of Assignor or Assignee. |
| b. | Notices. All notices, demands, requests, exercises, and other communications under this Lease by either party shall be in writing and: |
i. sent by United States Certified Mail, return receipt requested, in which case
notice shall be deemed delivered five (5) business days after deposit, postage
prepaid in the United States mail, or
ii. sent by a nationally recognized overnight courier, in which case notice shall be
deemed delivered one (1) business day after deposit with that courier, or
iii. sent by fax; in which case notice shall be deemed delivered on transmittal by
fax or other similar means, provided that a transmission report is generated that
reflects the accurate transmission of the notice, as follows:
ASSIGNOR:
Panattoni Properties DE, LLC
JP Portfolio, LLC
Carmel River, LLC
c/o Panattoni Development Company, LLC
00000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
JP Portfolio, LLC
Carmel River, LLC
c/o Panattoni Development Company, LLC
00000 X. Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Panattoni Law Firm
0000 Xxxxxxx Xxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
0000 Xxxxxxx Xxxx, Xxxxx X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
ASSIGNEE:
HQ2 Properties, LLC
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
0000 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
- 100 -
With a copy to:
Xxxxxx, Xxxxx & Samotny LTD.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
| c. | Terminology in Capitalized Terms. All personal pronouns used in this Assignment, whether used in the masculine, feminine, or neutral gender, should include all other genders, and the singular shall include the plural, and vice versa. Titles of Sections are for convenience only and neither limit nor amplify the provisions of this Assignment. | ||
| d. | Severability. If any provision of this Assignment or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Assignment and the application of such provisions to other persons or circumstances shall not be affected and shall be enforced to the greatest extent by law. | ||
| e. | Applicable Law. This Assignment shall be interpreted, construed, and enforced according to the laws of the State of Illinois, exclusive of its laws regarding conflicts of law. | ||
| f. | No Oral Modifications. Neither this Assignment nor any provisions hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. | ||
| g. | Counterparts. This Assignment may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument. |
[Remainder of Page Intentionally Left Blank
[Signatures begin on next page]
- 101 -
SIGNATURE PAGE
IN WITNESS WHEREOF, this Assignment has been executed as of the day and year first above
written to be effective as of the Effective Date.
| ASSIGNOR: | ||||
| PANATTONI PROPERTIES, DE, LLC, | ||||
| a Delaware limited liability company | ||||
By:
|
/s/ Xxxx Xxxxxxxx as Authorized Representative For | |||
| JP PORTFOLIO, LLC | ||||
| an Illinois limited liability company | ||||
By:
|
/s/ Xxxx Xxxxxxxx | |||
| CARMEL RIVER, LLC, | ||||
| a Delaware limited liability company | ||||
By:
|
/s/ Xxxx Xxxxxxxx as Authorized Representative For | |||
| Panattoni Living Trust, Dated April 8, 1998, | ||||
| Sole Member | ||||
| ASSIGNEE: | ||||
| HQ2 PROPERTIES, LLC, | ||||
| a Delaware limited liability company | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Name:
|
||||
Its:
|
||||
- 102 -
EXHIBIT “A”
Copy of Lease
- 103 -
