EXHIBIT 10.34
FIRST LEASE AMENDMENT
This instrument dated as of the 1st day of March, 2001, by and between 000
XXXXX XXXXXX XXXXX, L.L.C., an Illinois limited liability company ("Landlord")
and ORBITZ, LLC, a Delaware limited liability company ("Tenant").
R E C I T A L S:
A. By instrument dated as of October 1, 2000 (the "Lease"), Landlord
demised and leased to Tenant certain premises comprising the entirety of the
eighteenth (l8th) and nineteenth (19th) floors and containing approximately
44,766 rentable square feet in the aggregate (the "Premises") in the Building
known as 000 Xxxxx Xxxxxx Xxxxx (the "Building") in Chicago, Illinois, on the
terms and conditions set forth therein.
B. In lieu of Landlord performing the Work described in the Work Letter
attached to the Lease as Exhibit C, Tenant has elected to retain its own general
contractor to perform the Work and accordingly, Landlord and Tenant desire to
make certain modifications to the Lease.
C. Landlord and Tenant desire to amend the Lease as hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and for other good and valuable consideration, receipt whereof
is hereby acknowledged, Landlord and Tenant covenant and agree as follows:
1. Effective as of the date hereof, Section 1 (Term) of the Lease is
revised by deleting it in its entirety and by substituting in lieu thereof the
following:
"The term of this Lease (hereinafter referred to as the
"Term") shall commence on the 1st day of March, 2001 (hereinafter
referred to as the "Commencement Date") and shall end on the 29th
day of February, 2008 (hereinafter referred to as the
"Termination Date"), unless sooner terminated (or extended) as
provided herein."
2. Effective as of the date hereof, Section 2.B (Partial Abatement of
Base Rent and Additional Rent) of the Lease is revised by deleting it in its
entirety and by substituting in lieu thereof the following:
"If Tenant is not in "default" hereunder (as described in
Section 22 hereof) on the date any such installment is due, Base
Rent and Additional Rent due hereunder commencing on the
Commencement Date with respect to the portion of the Premises
comprising the entirety of the nineteenth (19th) floor shall be
abated in full through the period ending May 31, 2001."
3. Effective as of the date hereof, Section 5 (Possession) of the Lease
is revised as follows
(a) By deleting therefrom Paragraph A in its entirety and by
substituting in lieu thereof the following:
"A. Tenant agrees to accept the Premises in its "as
is" condition as of the date of this Lease, subject,
however, to Landlord's agreement to demolish the existing
improvements on the nineteenth (19th) floor. Possession of
the Premises shall be tendered to Tenant by Landlord upon
full execution and delivery of this Lease for purposes of
permitting Tenant to commence the performance of the Work
therein as described in the Work Letter attached hereto as
Exhibit C and made a part hereof. In no event shall the
Commencement Date or the Termination Date be deferred on
account of Tenant's failure to substantially complete the
Work by the Commencement Date."
(b) By deleting from Paragraph B thereof the first full
grammatical sentence in its entirety.
4. Effective as of the date hereof, Section 19 (Obligations to
Mortgagees) of the Lease is revised by deleting from Paragraph C thereof
(Non-Disturbance Agreement) the first full grammatical sentence and by
substituting in lieu thereof the following:
"Promptly following the Commencement Date, Landlord shall
provide Tenant with a Non-Disturbance Agreement from Landlord's
current mortgage lender substantially in the form attached hereto
as Exhibit I, and the obligations of
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Tenant under this Paragraph 19 are contingent upon Tenant's receipt of such
Non-Disturbance Agreement."
5. Effective as of the date hereof, Exhibit C (the Work Letter) to the
Lease is revised such that all references therein to the performance of the Work
by the Landlord or by a general contractor retained or controlled by Landlord
are deleted; it is understood and agreed that Tenant shall retain Xxxxxx
Construction (Special Projects) as the general contractor to perform the Work,
that Tenant shall sign the construction contract with the general contractor and
that the general contractor shall perform all aspects of the Work under the
direction and control of Tenant, subject to Landlord's approval (which approval
shall not unreasonably be withheld) of the Final Plans therefor and any material
changes to the Final Plans (so long as such changes do not impact the systems or
structure of the Building), and further subject to Landlord's supervision of
such Work. Landlord acknowledges that the Final Plans with respect to the Work
on the eighteenth (18) floor have been approved by Landlord as of the date of
this Amendment (except with respect to the balancing of the HVAC system), and
Landlord further agrees that with respect to the Final Plans for the Work on the
nineteenth (19th) floor, Landlord shall respond to Tenant's requests for
approval in a timely manner. Exhibit C to the Lease is further revised by
deleting Paragraph 4 in its entirety. Exhibit C to the Lease is further revised
by deleting Paragraph 3 in its entirety and by substituting the following in
lieu thereof:
"3. PAYMENT OF COSTS OF THE WORK.
(a) Subject to the provisions of Paragraph 3(b) below and
Landlord's obligation to demolish at Landlord's sole cost the
improvements currently located on the eighteenth (18th) and
nineteenth (19th) floors as described in Section 30 of the Lease,
the Work shall be installed at Tenant's sole cost and expense.
The cost of the Work shall include, and Tenant agrees to pay
Landlord for, the following costs ("Landlord's Costs"): (i) the
reasonable and actual cost of all work, if any, performed by
Landlord on behalf of Tenant and for all materials and labor
furnished on Tenant's behalf (which work Landlord shall be
authorized to perform
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only upon written request of Tenant); (ii) the reasonable and
actual cost of any services provided to Tenant or its contractors
including but not limited to the cost for rubbish removal,
hoisting, and utilities to the extent not included in any other
fees paid by Tenant; and (iii) a supervision fee equal to
Landlord's direct out-of-pocket costs not to exceed $0.25 per
rentable square foot of the Premises (which shall reimburse
Landlord for the costs of providing employees of Landlord for
supervising such work and reviewing the Final Plans and costs for
rubbish removal and cleanup prior to substantial completion of
the Work). Landlord may render bills to Tenant monthly for
Landlord's Costs (provided that the supervision fee shall be
billed proportionately based on the costs of the Work performed
during the period in question). All bills shall be paid from the
construction escrow as set forth in subparagraphs (b) and (c)
below.
(b) Pursuant to Section 30 of the Lease, Landlord has
agreed to provide Tenant with an allowance of $1,342,980.00
("Tenant Improvement Allowance") to be used toward payment of
certain costs incurred by Tenant in connection with the Work.
Funds may be drawn against the Tenant Improvement Allowance at
any time and from time to time commencing upon full execution of
the Lease, but not after the date which is twelve (12) months
following the Commencement Date (subject, however, to the
provisions of Section 30.C of the Lease providing for the credit
of a portion of any unused Tenant Improvement Allowance to the
payment of Base Rent), subject to the following:
(i) Tenant may not make more than one draw in any
calendar month;
(ii) The minimum amount which may be drawn at any one
time (except in case of the final draw) is One Hundred Thousand
Dollars ($100,000);
(iii) Except for the final draw, the maximum amount of any
draw shall not exceed an amount which bears the same ratio to the
total Tenant Improvement Allowance as the cost of the Work paid
by Tenant and covered by the lien waivers submitted by Tenant in
connection with the draw request bears to the total cost of the
Work;
(iv) With each draw request, Tenant shall submit to
Landlord the following documents:
(A) A true and correct copy of the application for
payment by Tenant's Contractors for the Work completed to date,
including contractor's affidavits and sworn statements evidencing
the cost of the Work performed to date (or in the case of
subcontractors and materialmen, affidavits and sworn statements
for the last preceding draw request);
(B) Partial or final lien waivers with respect to the
Work performed to date (or in the case of subcontractors and
materialmen and except for the final
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disbursement of the Tenant Improvement Allowance, partial lien
waivers for the last preceding draw request);
(C) Tenant's certification to Landlord that the amounts
set forth in all contractor's sworn statements are owed to
Tenant's Contractors for the Work performed to date;
(D) The total cost of the Work based on the Final Plans,
as such cost may change from time to time;
(E) With the final draw request, Tenant shall submit to
Landlord a certificate from Tenant's Architect stating that the
Work has been completed in accordance with the Final Plans and
applicable zoning, building, environmental and other laws.
(v) Landlord will disburse the portion of the Tenant
Improvement Allowance allocable to each draw request to Tenant or
Tenant's Contractors (at Landlord's option) within thirty (30)
days after Tenant has submitted the required information for such
draw and has otherwise complied with the requirements hereof.
(c) Prior to commencement of any construction by Tenant
or payment of any of Tenant's Contractors, Landlord shall
establish a construction escrow in the form attached hereto as
Exhibit A providing for payment of Tenant's Contractors as the
Work progresses upon satisfactory review of lien waivers and
sworn statements from Tenant's Contractors and if requested by
Landlord, Landlord's title insurance company's willingness to
issue title insurance over mechanic's liens relating to the Work
to the date of each draw. Landlord and Tenant shall each fund
their respective shares of the construction escrow as the Work
progresses and within ten (10) days of processing each draw
request. Tenant shall pay for the Work out of the construction
escrow. The provisions of Section 9 of the Lease shall apply to
Tenant's performance of and payment for the Work. The cost of the
construction escrow shall be borne by Tenant, except that Tenant
shall not be required to pay for any title insurance costs in
connection therewith, if required by Landlord, other than any
title indemnities which the title company may require in
connection with possible mechanics' lien claims."
6. Landlord and Tenant each represents and warrants to the other that
neither it nor any of its officers or agents nor anyone acting on its behalf has
dealt with any real estate broker other than The Xxxx Xxxx Company in the
negotiation or making of this First Lease Amendment, and Landlord and Tenant
each agrees to indemnify and hold harmless the other from the claim or
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claims of any other broker or brokers claiming to have caused such party to
enter into this First Lease Amendment.
7. Except as expressly modified and amended hereby, all of the terms,
covenants and conditions of the Lease are hereby ratified and confirmed.
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of
the day and year first above written.
LANDLORD:
000 XXXXX XXXXXX XXXXX, X.X.X.
By: The Equitable Life Assurance
Society of the United States, a
New York corporation, solely on
behalf and for the benefit of its
Separate Account 8, known as the
"Prime Property Fund"
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Its: Investment Officer
TENANT:
ORBITZ, LLC,
ATTEST: a Delaware limited liability company
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxx
By: XXXX X. XXXXXX By: XXXXXXX X. XXXX
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Its: VICE PRESIDENT, H.R. Its: PRESIDENT & CEO
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EXHIBIT A
FORM OF CONSTRUCTION ESCROW
A-1
NEAR NORTH NATIONAL TITLE CORPORATION
A MEMBER OF THE NEAR NORTH NATIONAL GROUP
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OWNER'S AND TENANT'S CONSTRUCTION ESCROW
DATE MARCH 12, 2001
CONSTRUCTION ESCROW NUMBER C070l0008
NEAR NORTH NATIONAL TITLE CORPORATION
000 X. XXXXXX XXXXX LLC (hereinafter described as "Owner) will deposit
approximately $ and ORBITZ, LLC (hereinafter described as "Tenant") will
deposit $ and cause to be deposited General Contractor's Sworn Statement
together with partial or final waivers of lien from contractors,
sub-contractors, and suppliers in connection with construction work in process
at,
000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx Suite or Floor Number 1800/1900
ADDRESS CITY STATE
Tenant Improvements
TYPE OF IMPROVEMENT
The general contractor is Xxxxxx Construction Company
THE ARCHITECT IS GENSLER ARCHITECT.
WHEN YOU RECEIVE:
1. A sworn Tenant's statement and approval to make payment
2. Landlord's approval to make payment which may be incorporated on
the sworn Tenant's statement.
3. Certification from the architect that the labor and material for
which payment is requested has been property performed or is in
place on the premises in question.
4. Sufficient funds (if not previously deposited)
5. Personal undertaking from the general contractor for submission
of waivers from the subcontractors on a delayed basis. (First
draw only)
YOU ARE AUTHORIZED TO PROCEED AS FOLLOWS:
That payment should be directly made to the General Contractor and
although Near North National Title corporation shall have no liability
hereunder regarding lien rights which may be asserted by any
sub-contractor or supplier, it shall examine lien waivers from
subcontractors submitted by General Contractor in order to
substantiate payment to the General Contractor.
You are hereby directed to examine the general contractor's sworn
statement, together with supporting affidavits and waivers of lien of
subcontractors and materialmen in accordance with the following procedure:
1. At the time of the initial draw; the general contractor will deposit
or cause to be deposited with you the general contractor's sworn statement and
his own waiver in the amount of the draw.
2. At the time of each subsequent disbursement, the general contractor
will deposit or cause to be deposited with you the general contractor's sworn
statement and his own waiver of lien for the current draw and all supporting
documentation such as affidavits and waivers of lien from subcontractors and
materialmen for the previous draw.
3. At the time of the final disbursement the general contractor will
deposit or cause to be deposited his general contractor's sworn statement and
all remaining affidavits and waivers of lien from subcontractors and materialmen
for the previous draw. In addition, at the time of the final disbursement, all
of the final supporting documentation should be deposited with you.
PRIOR TO EACH AND EVERY DISBURSEMENT YOU SHALL PERFORM A COMPUTER
CHECK FOR MECHANIC LIEN CLAIMS COVERING THE MOST CURRENT DATE
POSSIBLE. IN THE EVENT A MECHANIC'S LIEN CLAIM APPEARS RELATING TO THE
SPACE REFERENCED IN THIS ESCROW NO DISBURSEMENT WILL BE MADE WITHOUT
THE TENANT'S AND OWNER'S APPROVAL TO PROCEED WITH THE CURRENT DRAW
REQUEST.
THE PERMANENT TAX NUMBERS ARE 17-16-214-002-0000
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It is understood that your undertakings, and any liability arising
therefrom regarding the release of lien rights shall extend only to the Owner
and Tenant and shall be limited to those persons to whom you are making payments
and only for those amounts being paid. Any lien rights associated with work
previously completed, or completed by persons not receiving payments from you,
are specifically excluded.
It is further understood that you make no representation that a title
insurance policy insuring over mechanics' lien claims will necessarily issue
without additional requirements being met.
It is further understood that no responsibility is assumed by you
concerning the sufficiency of funds deposited herein to complete the
contemplated construction satisfactorily.
If conflicting demands are made upon Escrowee or legal action is taken in
connection with the Escrow, Escrowee may withhold and stop all further
proceedings without liability therefor, or Escrowee may file suit in
interpleader or for declaratory relief. If Escrowee is required to respond to
any legal summons or proceedings, or if any action of interpleader or
declaratory relief is brought by Escrowee, or if conflicting demands or notice
by parties to this Escrow or by any other party or parties are served upon
Escrowee, the undersigned jointly and severally agree to pay reasonable escrow
fees and all costs, expenses, and reasonable attorney's fee expended or incurred
by Escrowee as a result of any of the above described events. The undersigned
further agree to save Escrowee harmless as escrow holder under the Escrow from
all losses and expenses, including reasonable attorney's fee and court cost
incurred by reason of any claim, demand, or action filed with respect to the
Escrow. The undersigned jointly and severally agree to pay fees of Escrowee and
reimburse Escrowee for al1 expenses incurred in connection herewith and direct
that all sums due to Escrowee pursuant hereto be deducted from the sums held in
the Escrow prior to disbursement of said sums, to the extent said sums are
sufficient to pay all sums due Escrowee. The undersigned hereby grant Escrowee a
lien against the deposits held in the Escrow to secure all sums due Escrowee.
Deposits made pursuant to these instructions may be invested on behalf of
any party or parties hereto: Provided, that any direction to Escrowee for such
investment shall be expressed in writing and contain the consent of all other
parties to this escrow, and also provided that you are in receipt of the
taxpayer's identification number and investment forms as required. Escrowee
will, upon request, furnish information concerning its procedures and fee
schedules for investment.
Except as to deposits of funds for which Escrowee has received express
written direction concerning investment or other handling, the parties hereto
agree that the Escrowee shall be under no duty to invest or reinvest any
deposits at any time held by it hereunder; and, further, that Escrowee may
commingle such deposits with other deposits or with its own funds in the manner
provided for the administration of funds under Section 2-8 of the Illinois
Corporate Fiduciary Act, 205 ILCS 620/2-8 (1992) and may use any part or all of
such funds for its own benefit without obligation to any party for interest or
earnings
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derived thereby, if any. Provided, however, nothing herein shall diminish
Escrowee's obligation to apply the full amount of the deposits in accordance
with the terms of this Agreement.
In the event the Escrowee is requested to invest deposits hereunder, Near
North National Title Corporation is not to be held responsible for any loss of
principal or interest which may be incurred as result of making the investments
of redeeming said investment for the purpose of this escrow. Your charges
hereunder are to be billed to owner. Escrow fees are payable when billed.
OWNER
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000 XXXXX XXXXXX XXXXX LLC
Print Name/Tit1e
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Address
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Phone #
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TENANT /s/ Xxxxxxx X. Xxxx
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ORBITZ LLC
Print Name/Title XXXXXXX X. XXXX, PRESIDENT & CEO
Address 000 X. XXXXXX XX. XXX 0000, XXXXXXX, XX
Phone # 000-000-0000
GENERAL CONTRACTOR
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XXXXXX CONSTRUCTION
Print Name/Title
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Address
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Phone #
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ACCEPTED: NEAR NORTH NATIONAL TITLE CORPORATION
Print Name/Title
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NEAR NORTH NATIONAL TITLE CORPORATION
A MEMBER OF THE NEAR NORTH NATIONAL GROUP
PERSONAL UNDERTAKING
(AFTER THE ACT)
WHEREAS, Near North National Title Corporation, as agent for the Title
Insurance Company, hereinafter collectively referred to as "The Company,"
is about to issue or may issue in the future its title insurance policy or
policies or commitments or date down endorsements therefor, all hereinafter
referred to as "The Title Insurance Policy, in respect to the land therein
described, and commonly known as 000 Xxxxx Xxxxxx for the space or floors
occupied by Orbitz LLC for tenant improvement work.
AND, WHEREAS, the company has raised as title exceptions on the Title
Insurance Policy or will raise in the future the following mentioned actual
or supposed rights, interests, liens, encumbrances, adverse claims or
defects in title, which now exist or may at any time be claimed to exist,
all hereinafter referred to as "Exceptions to Title," to wit:
Mechanic's lien claims and future mechanic's lien claims which may
arise as a result of the construction of improvements on the land emanating
from contracts negotiated by the undersigned and pursuant to work performed
by or for the undersigned for which it has previously received
disbursements under any existing construction contracts.
AND, WHEREAS, the Company has been or will be requested to issue the
Title Insurance Policy, and may hereafter in the ordinary course of its
business issue title insurance policy or policies or commitments or date
down endorsements therefor in the form or forms now or then commonly used
by the Company in respect to the land or to some part or parts thereof, of
interest therein, either free and clear of all mention of aforesaid
exceptions to title or insuring against loss or damage by reason thereof:
NOW, THEREFORE, in consideration of the issuance of said title insurance
policies as aforesaid and of the sum of One Dollar ($1.00) in hand paid to
the undersigned by the Company, the receipt whereof is hereby acknowledged,
the undersigned, XXXXXX CONSTRUCTION COMPANY does hereby for itself, its
successors and assigns, covenant and agree with the Company: (1) to fully
protect, defend and save harmless the Company from and against the above
mentioned rights and liens, and each and every one of them; (2) to fully
protect, defend and save harmless the Company from any and all loss, costs,
damages, attorney's and solicitor's, fees and expenses of every kind and
nature which it may suffer, expend or incur under or by reason or in
consequence of said title insurance policies, on account of, in consequence
of or growing out of the above mentioned rights and liens, or any of them,
or on account of the assertion of enforcement or attempted assertion or
enforcement thereof, or of any right existing or hereafter arising, or
which at any time be claimed to exist under or by reason, or in consequence
of or growing out of the said rights and liens or any of them; (3) as
against the assertion or attempted assertion of any such rights and liens
to defend at itS own costs and charges in behalf of and for the protection
of the Company and of the parties insured, or who may be insured, against
loss by it under said title insurance policies (but without prejudice to
the right of the Company to defend if it so elects) any and every suit,
action or proceedings in which any such rights and liens may be asserted or
attempted to be asserted, established or enforced in, to, upon, against or
in respect to said real estate, or any part thereof, or interest therein;
(4) that each and every provision hereof shall extend to and be in force
concerning any and every other title insurance policy or policies which the
Company may at any time or times hereafter issue insuring against loss by
reason of the "Exceptions to Title" noted above with respect to the real
estate hereinbefore described, or any part or parts thereof, or interest
therein.
Anything herein to the contrary, notwithstanding, the undersigned in
consideration of the premises agrees as follows:
1. That the undersigned shall document each and every draw with
contractor's and subcontractor's sworn statements together with
supporting waivers therefor. The supporting documents for each draw
shall be furnished within 30 days after the date of the particular draw
and all said documentation for a particular draw shall be acceptable to
the Company and be deposited prior to the next draw or payout request.
In the event that the documentation is not produced as herein above
provided, then and in that event the Company shall have the option to
terminate this agreement and the same shall thereafter become null and
void and of no further force and effect reserving unto the Company,
however, all rights that may have accrued to the Company prior to the
date of such termination.
2. That the total aggregate amount of documentation which may be submitted
on after-the-fact basis relating to policies to be covered by this
undertaking will not at any one time exceed the sum of $700,000.00.
3. At the time the payments as disclosed on the general contractor's sworn
statement reach 90% of the total contract amount, supporting waivers
from subcontractors and or materialmen will have to be provided on a
current basis.
4. That at the time of the final draw or at such time as issuance of the
policy endorsement required, the undersigned shall have documented all
prior draws; and the undersigned shall document the final draw with
contractor's and subcontractor's sworn statements together with all
supporting waiver's therefore, or in lieu thereof shall enter into a
Title Indemnity Agreement with Near North National Title Corporation
covering missing documentation.
If any of the terms or conditions of this undertaking are not kept or
performed by the undersigned then in that event the Company sha1l have the
option, upon thirty (30) day's written notice by registered mail to the
undersigned to terminate this agreement and the same sha1l become null and
void and of no further force or effect, reserving unto the Company,
however, all rights hereunder that may have accrued to the Company prior to
the date of such termination.
THE UNDERSIGNED HEREBY AGREES THAT IN LIEU OF AN ORIGINAL WRITTEN SIGNATURE THE
FACSIMILE SIGNATURE ON THIS DOCUMENT WILL CONSTITUTE A VALID ORIGINAL SIGNATURE
TO THIS DOCUMENT AND CAN BE RELIED UPON FOR ENFORCEMENT PURPOSES.
IN WITNESS, WHEREOF, said ______________________ has caused these presents
to be signed this _______ day of _______________, 19__.
by:
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XXXXXX CONSTRUCTION COMPANY
ATTEST:
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by:
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ATTEST:
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ADDRESS
