AGREEMENT OF SUBLEASE
AGREEMENT OF SUBLEASE
THIS AGREEMENT OF SUBLEASE (hereinafter called the "Sublease") is made as of the 24"' day of January, 2007, (hereinafter referred to as the "Effective Date"), by and between FCL FOUNDERS DRIVE, LLC, an Illinois limited liability company (hereinafter called the "Sublandlord"), and NORTHBROOK HOTEL GROUP L.P., an Illinois limited partnership (hereinafter called the "Subtenant").
W I T N E S S E T H:
WHEREAS, Sublandlord is presently the lessee of approximately 12.l 9 I3 acres of land, located in the Village of Northbrook, Cook County, Illinois (said land is hereinafter referred to as the "Project''), pursuant to (i) that certain retail Ground Lease dated as of May 31, 2006, by and between Chicago Title Land Trust Company, as Trustee under a Trust Agreement dated May 31, 2006 and known as Trust No. I 114333, as lessor, and Sublandlord, as lessee, pertaining to approximately 7.1733 acres of the Project,
and (ii) that certain hotel Ground Lease dated as of May 31, 2006, by and between Chicago Title Land Trust Company, as Trustee under a Trust Agreement dated May 31, 2006 and known as Trust No.
1114332 (hereinafter referred to as "Overlandlord"), as lessor, and Sublandlord, as lessee, pertaining to approximately 5.0180 acres of the Project (said hotel Ground Lease is hereinafter referred to as the "Primary Lease"; a copy of the Primary Lease, with financial terms deleted, is attached hereto as Exhibit A and incorporated by reference);
WHEREAS, Sublandlord desires to sublet to Subtenant and Subtenant desires to sublet from Sublandlord that portion of the Project which is demised under the Primary Lease, and legally described on Exhibit B attached hereto and by this reference incorporated herein and described as the "Hotel" on the site plan attached hereto as Exhibit C and by this reference incorporated herein (said"site plan is hereinafter referred to the "Site Plan", and the portion of the Project described on Exhibits Band C is hereinafter referred to as the "Premises");
WHEREAS, the Premises are subject to the terms and conditions set forth in that certain Declaration Establishing Covenants, Conditions, Restrictions and Easements, dated August 3, 2006, a copy of which is attached hereto as Exhibit D and incorporated by reference (hereinafter referred to as the "Declaration"), which Declaration has been recorded with the Cook County Recorder of Deeds as Document No. 0625045122 (the "Recorder").
NOW, THEREFORE, for and in consideration of TEN AND NO/100 ($10.00) DOLLARS and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto do hereby agree as follows:
I.Incorporation. The Recitals to this Sublease are fully incorporated herein by this reference thereto with the same force and effect as though restated herein.
open for business operations, in either case irrespective of whether any minor or weather-dependent portions or so-called "punch list items" remain unfinished or subject to correction.
Provided that no Event of Default (as said term is hereinafter defined) then exists on the part of Subtenant under this Sublease, and provided that Sublandlord is entitled to renew the term of the Primary Lease pursuant to the terms of the Primary Lease, Subtenant shall have the right to renew the Term for one (I) additional sixty (60) year term expiring December 30, 2127 ("Renewal Term") by serving Sublandlord with written notice ofits election to renew on or before November 30, 2065 (the "Renewal Notice"). In the event that Subtenant serves the Renewal Notice on Sublandlord on or before November 30, 2065, Sublandlord covenants and agrees that it shall notify Overlandlord of its election to renew the term of the Primary Lease for a term expiring December 31, 2127. Subject to the terms of Section 7(b) of
this Sublease, if the Renewal Notice is given, this Sublease shall automatically be renewed for the Renewal Tenn without any further act on the part of either party. If the Renewal Notice is not given on or before November 30, 2065, the Sublease shall expire on its own terms automatically and without any further action on the part of either party on the last day of the Term. Except for the Base Rent payable during the Renewal Tenn, which shall be determined in accordance with Section 7 below, and the option to renew for an additional sixty (60) year term, which shall not apply to the Renewal Term, all of the other terms and conditions that are provided in this Sublease (including, without limitation, the applicable provisions for Base Rent increases, all of which shall continue during the Renewal Term), shall remain in full force and effect during the Renewal Term.
Amount shall be paid from time to time on a monthly basis, commencing on the 10th day of the calendar month following the month in which the lnitial Incurred Work Amount Payment occurs, and continuing on the l om day of each month thereafter, until the Work has been completed. The amount of each
monthly component of the Subtenant Work Amount shall be equal to the product of(i) the Subtenant Pro Rata Share, times (ii) the costs incurred during the prior calendar month in connection with constructing the Work. Notwithstanding the foregoing, no monthly component of the Subtenant Work Amount shall be due until the 5ili day after receipt of an invoice from Sublandlord setting forth the total cost incurred during the prior calendar month in connection with constructing the Work. In the event that Subtenant fails to pay any portion of the Subtenant Work Amount at the times set forth above, and said failure continues for five (5) days after written notice thereof, such occurrence shall constitute an event of default under this Sublease. Promptly after its receipt of the applicable Subtenant Work Amount, Sublandlord shall promptly (subject to reasonable retainage to insure complete performance of such work) pay all contractors, subcontractors and suppliers to whose work the Subtenant Work Amount relates and shall obtain appropriate partial and final lien waivers in connection with each such payment and shall provide copies of same to Subtenant upon request. In the event that any such contractors, subcontractors or suppliers lien Subtenant's interest in the Premises arising out of or related to non-payment of the Work by Sub landlord, then Sublandlord shall cause such liens to be released or bonded over to the reasonable satisfaction of the Subtenant within thirty (30) days thereof, said failure shall constitute an event of default under this Sublease. Sublandlord hereby warrants that the Work shall be free from defects in materials and workmanship for a period of one (I) year from the date of completion of the Work. If Subtenant provides notice to Sublandlord of any such defect during said one (I) year period, Sublandlord shall promptly cause the same to be corrected at Sublandlord' s sole cost and expense. Subtenant acknowledges and agrees that the warranty herein stated is in lieu of all other remedies for construction defects, and all other implied or expressed warranties with respect to the Work are hereby excluded.
Subtenant shall construct the improvements on the Building Pad (the "Building Improvements") in
accordance with the terms and conditions set forth in that certain Agreement dated June 13, 2006, by and between Subtenant and FCL Builders, Inc. and shall Substantially Complete the Building Improvements on or before August I, 2008, which date shall be subject to extension for customary "force majeure" conditions. In connection with such construction, Subtenant shall cause FCL Builders, Inc. to procure and maintain in full force and effect until Substantial Completion of the Building Improvements a payment and performance bond in the AJA Form A312 1984 but containing a "Replacement Obligee Rider" thereto in a form acceptable to Sublandlord and Lessor ("Bond"), which Bond and Rider permit the Subleasehold Mortgagee and Lessor's Beneficiary to assume and have the benefit of all of the rights and obligations of Subtenant under the Bond in the event FCL Builders, Inc. or Subtenant fails to complete the Building Improvements in accordance with this Sublease and the plans for such Building Improvements previously approved by Sublandlord and Lessor. Subtenant shall give notice to Sublandlord, Subleasehold Mortgagee and Lessor concurrently with any notice given by Subtenant to the surety under the Bond, and shall perform all obligations required of Subtenant as "Owner" under the Bond. If Subtenant fails to do so, Subleasehold Mortgagee and Xxxxxx's Beneficiary shall have the rights afforded them under the Bond, which shall be exercisable by either of them pursuant to the Bond and the terms and provisions of that certain Subleasehold Mortgagee Recognition Agreement entered into between Subleasehold Mortgagee, Lessor's Beneficiary and Subtenant. Sublandlord and Subtenant agree that the Building Improvements and all alterations thereto shall be owned by Subtenant at all times during the Term. At the expiration or earlier termination of this Sublease, the Building Improvements and, subject to the provisions of Section I 7(b) below, the Alterations, shall become the property of Sublandlord and shall remain upon and be surrendered with the Premises as a part thereof at the termination of this Sublease.
Parking Lot costs described in Section 6 above, the following rental and other payments at the following times:
Notwithstanding the foregoing, Overlandlord shall not be bound by Subtenant's exercise of its option to renew unless and until the following procedures have been followed:
THIS IS A RENEWAL NOTICE FROM SUBTENANT PURSUANT TO SECTION 7(b) OF THE AGREEMENT OF SUBLEASE DATED AS OF JANUARY 24, 2007 BETWEEN FCL FOUNDERS DRIVE, LLC AND NORTHBROOK HOTEL GROUP L.P. PURSUANT TO SAID SECTION
7(b), XXXXXX.."IDLORD HAS SIXTY DAYS FROM THE DATE OF THIS NOTICE TO RESPOND AS PROVIDED IN SECTION 7(b), FAILING WIDCH, THE SUBLEASE SHALL BE RENEWED FOR THE RENEWAL TERM AND FOR THE [BASE RENT OR APPRAISED NEW BASE RENT
- choose appropriate term] STATED IN THIS NOTICE.
| ii. | Upon receipt of such notice, Overlandlord shall have a period of sixty |
(60) days to give Subtenant and Sublandlord notice that there exists at that time an uncured Default or Event of Default on the part of Sublandlord under the Primary Lease and, as a result, Sublandlord is not permitted to renew the term of the Primary Lease (the "60-Day Notice"). If the nature of the Default or Event of Default is a failure on the part of Sublandlord to pay Base Rent (as such term is defined in the Primary Lease) to Overlandlord, then in such 60-Day Notice, Overlandlord shall have the right to demand that Subtenant immediately commence making payments of Base Rent under this Sublease directly to Overlandlord, and Sublandlord hereby agrees Subtenant shall honor such demand, and Sublandlord and Overlandlord hereby agree that all such payments so made by Subtenant to Overlandlord shall be credited toward Base Rent payable by Subtenant under the Primary Lease and any excess shall be applied by Overlandlord in such order and to such amounts as are due and payable under the Primary Lease as provided in the Primary Lease until such time (if at all) that all Defaults or Events of Default under the Primary Lease are cured. If Overlandlord fails to give the 60-Day Notice to Subtenant, then Overlandlord shall be deemed to have approved the renewal of the Sublease and such Sublease as so renewed for the Proposed New Sublease Base Rent and otherwise on the terms specified in this Sublease, and the Sublease as so renewed shall thereafter be deemed the Sublease for all purposes of the Non-Disturbance Agreement and this Sublease.
In the event the Primary Lease is not renewed or is terminated in accordance with its terms by reason of a Default or Event of Default (as such terms are defined in the Primary Lease) on the part ofSublandlord or another Termination Event (as defined in and specified in the Non Disturbance Agreement), whether before or after the completion of the process described in clauses (i) through (v) of this Section 7(b), then the provisions of the Non-Disturbance Agreement shall control with respect to the rights ofOverlandlord and Subtenant.
As used herein, "Appraised New Base Rent" shall mean the fair market value of the Premises, but specifically not including the Building Improvements, based upon generally accepted appraisal methods (the "Appraised Value"), multiplied by an appraised annual rate of return on a real estate investment similar in kind to the Premises based upon generally accepted appraisal methods (the "Appraised Rate of Return"). Absent an agreement between Sublandlord and Subtenant, the Appraised Value and the Appraised Rate of Return shall be determined in accordance with the provisions of Article XIX of the Primary Lease, except that all references therein to Lessor shall mean Sublandlord, and all references therein to Lessee, shall mean Subtenant. Examples illustrating the determination of the Appraised New Base Rent, applying the principles set forth in Article XIX of the Primary Lease, are set forth on Exhibit J attached hereto.
$317,647 per year ($3.5294 x 90,000).
The provisions of this Section 7 shall apply regardless of whether Subtenant obtains Sublandlord's prior approval to such Added Components, but nothing contained in this Section 7 shall be deemed or construed to permit Subtenant to construct any Added Components without Sublandlord's approval as provided elsewhere in this Sublease.
charges, penalties, late fees, interest, fines, attorneys' fees or costs or other such charges pursuant to this subsection (e) which arise out or relate to any acts or omissions of Sublandlord. The payment obligations described in this Section 7(e) are hereinafter collectively referred to as the "Payment Obligations". Notwithstanding anything to the contrary contained in this Sublease, Subtenant's obligations to pay the Payment Obligations shall commence on the Effective Date, and not the Commencement Date. Provided Subtenant is not in default hereunder, Xxxxxxxxxxx agrees to pay all Payment Obligations as and when they become due. For the purposes of this Sublease, "Subtenant's Proportion" shall mean one hundred percent (100%). In addition to the Payment Obligations, Subtenant acknowledges that it shall be responsible for its Member's Proportionate Share of the Association Costs (as said terms are defined in the Declaration). For the purposes of this Sublease, Subtenant's Member's Proportionate Share shall be forty-one percent (41%). Sub landlord shall apply for a separate tax parcel for the Premises promptly after the execution of the Sublease. Until such time as a separate tax parcel is issued, Subtenant shall pay its Member's Proportionate Share of real estate taxes based upon Subtenant's Proportion.
Subtenant's obligation to-pay the Payment Obligations and its Member's Proportionate Share of the Association Costs shall commence on the Effective Date, and not the Commencement Date.
All rental and other payments to be made by Subtenant to Sublandlord shall be made without setoff, deduction or reductions of any kind in any amount for any reason whatsoever. All rental payments shall be made to Sublandlord at 0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000 or such other place as Sublandlord may from time to time designate in writing by notice to Subtenant. All sums payable by Subtenant under this Sublease shall be deemed to be "Rent."
Sub landlord at any time or from time to time, Subtenant shall promptly, in each such instance, within five days of written demand therefor by Sublandlord, pay to Sub landlord such additional sums as may be necessary to restore the Security Deposit to the original amount set forth above. If Subtenant shall fully and faithfully comply with all the terms, provisions, covenants and conditions of this Sublease, the Security Deposit, or the balance thereof, shall be returned to Subtenant after all of the following: (a) the time fixed as the expiration of the Term of this Sublease; (b) the removal of Subtenant from the Premises;
absence of evidence satisfactory to Sublandlord of an assignment of the right to receive the Security Deposit or the remaining balance thereof, Sublandlord may return the Security Deposit to the original Subtenant, regardless of one or more assignments of this Sublease.
| 9. | Intentionally Deleted. |
IO.Representations.
| 11. | Primary Lease. |
(ii) develop all Submittals required in connection with the Building Improvements for approval by Overlandlord pursuant to Article 5 of the Primary Lease; (iii) upon approval of the Final Plans and Specifications for the Building Improvements, to construct the Building Improvements in accordance with such Final Plans and Specifications and the other applicable provisions of Article 5 of the Primary Lease; (iv) maintain insurance in accordance with Article 7 of the Primary Lease; (v) allow the use of insurance proceeds in accordance with the provisions of Article 11 of the Primary Lease; and (vi) approvals with respect to changes or alterations to the Building Improvements in accordance with Article 12 of the Primary Lease, are hereby conferred and imposed upon Subtenant (collectively, the "Sublandlord's Primary Leasehold Obligations"). Subtenant agrees to be bound by all of the Sublandlord's Primary Leasehold Obligations, and agrees, for the benefit ofOverlandlord and Sublandlord, to perform all of the Sublandlord's Primary Leasehold Obligations. Any rights granted to Sublandlord (as tenant under the Primary Lease) are hereby granted to Subtenant, as they relate to the Premises, which rights shall include, without limitation, the right to receive all of the services and benefits to be provided to Sublandlord with respect to the Premises under the Primary Lease. Subtenant covenants and agrees to fully and faithfully perform the terms and conditions of the Primary Lease and the Sublease on its part to be performed. In connection herewith and for purposes of this Sublease, the Primary Lease is made a part of this Sublease. Neither Sublandlord nor Subtenant
shall do or cause to be done or suffer or permit any act to be done which would or might cause the Primary Lease, or the rights of Sublandlord, as tenant, under the Primary Lease, to be endangered,
cancelled, terminated, forfeited or surrendered, or which would or might cause Sublandlord to be in default thereunder or liable for any damage, claim or penalty. Subtenant agrees, as an express inducement for Sublandlord's execution of this Sublease, that if there is any conflict between the provisions of this Sublease and the provisions of the Primary Lease which would permit Subtenant to do or cause to be done or suffer or permit any act or thing to be done which is prohibited by the Primary Lease, then, the provisions of the Primary Lease shall prevail. If the Primary Lease terminates or is terminated for any reason whatsoever, then this Sublease shall terminate simultaneously therewith. If Subtenant is not in default under the terms and conditions hereof, any such termination shall be without liability to Subtenant, except such liability theretofore accruing; however, if Subtenant is in default, the default provisions hereof shall control as to Subtenant's liability.
10
Primary Lease, to be endangered, cancelled, terminated, forfeited or surrendered, or which would or might cause Sublandlord to be in default thereunder.
111.Amend or modify the Primary Lease or the Declaration in a manner that would materially and adversely affect any of the rights, duties or obligations of Subtenant hereunder, without first obtaining the prior written approval of Subtenant and its Subleasehold Mortgagee, it being understood, however, that Sublandlord shall have the right to amend or modify the Primary Lease and/or the Declaration without the consent of the Subtenant and/or its Subleasehold Mortgagee in the event that said amendment or modification would not materially and adversely affect any of the rights, duties or obligations of the Subtenant hereunder.
1v.Terminate the Declaration.
v.Assign or transfer any interest of Sublandlord in, to or under the Declaration (including, without limitation, its interest as the "Declarant" and "Class A Member" thereunder) to any party other than to a successor or assign of Sublandlord under this Sublease.
| 13. | Indemnity. |
expenses, including, without limitation, engineers', architects' and reasonable attorneys' fees, court costs and disbursements, which may be imposed upon or incurred by or asserted against any Indemnified Party by reason of any one or more of the following occurring during or after (but attributable to a period of time falling within) the Term: (i) any use, nonuse, possession, occupation, alteration, repair, condition, operation, maintenance or management of the Premises or any part thereof by Subtenant or any member of the Subtenant Group (as defined in Section Hf.fil); (ii) any act or failure to act on the part of Subtenant or any member of the Subtenant Group; (iii) any accident, injury (including death) or damage to any person or property occurring in, on or about the Project or any part thereof as a result of the act or neglect of Subtenant or any member of the Subtenant Group; (iv) any failure to perform or comply with any of the covenants, agreements, terms or conditions in this Sublease on Subtenant's part to be performed or complied with, provided, however, that in no event shall Subtenant be obligated to indemnify, defend or save harmless Sublandlord or any other Indemnified Party from and against any of the foregoing which arises out of or relates to the negligent acts or intentional misconduct of said Indemnified Party.
Notwithstanding the foregoing, the foregoing release and waiver of claims shall not be operative, nor shall the foregoing endorsements be required, in any case in which the effect of such release or waiver is to invalidate insurance coverage or the right of the insured to recover thereunder or increase the cost thereof (provided that in the case of increased cost the other party shall have the right, within ten ( I 0) Days following notice from the party procuring such
insurance, to pay such increased cost, thereby keeping such release or waiver in full force and effect), nor shall it be construed as waiving any rights for claims of indemnification or reimbursement against third parties or for deductible amounts where the damage or loss is caused by the act or negligence of Xx xxxxx lord or its agents, servants or employees.
| 14. | Environmental Matters. |
| (a) | Defined Terms. |
Overlandlord to liability for any Environmental Claim or which must be remediated to prevent Sublandlord or Overland lord from incurring loss of any kind.
| (iii) | not exacerbate a Pre Existing Condition; |
| (iv) | upon the discovery ofan Environmental Condition: |
| a. | promptly, but not later than three (3) business days after the discovery of the Environmental Condition, notify Sublandlord of the Environmental Condition; |
| b. | furnish a letter of credit, personal guaranty, escrow of funds, or other security reasonably acceptable to Sublandlord to secure performance of Environmental Remediation and to assure Sublandlord that all necessary funds are readily available to Sublandlord to pay the costs and expenses of Environmental Remediation; |
| c. | prior to commencement of any Environmental Remediation, |
| submit a proposed scope of work for the Environmental Remediation, together with a timetable and a cost estimate, to Sublandlord for review and approval; |
| d. | after obtaining Sublandlord's approval, which approval shall not be unreasonably withheld or delayed, diligently perform the approved Environmental Remediation; |
| f. | comply with applicable release reporting requirements and provide Sublandlord with any information necessary for Sublandlord to comply with Environmental Law; and |
| g. | obtain a so called "no further remediation letter" or other acknowledgment from the federal, state, or local governmental agency with jurisdiction over the Environmental Condition that the Premises have been fully remediated without reliance on institutional controls (including but not limited to deed restrictions) or engineered barriers; |
(i) inspecting the documentation relating to Hazardous Materials or environmental matters maintained by Subtenant or any occupant of the Premises; (ii) ascertaining the nature of the activities being conducted on the Premises and investigating whether Subtenant is in compliance with its obligations under this Section 14 of this Sublease; (iii) determining the type, kind, and quantity of all products, materials, and substances brought onto the Premises, or made or
produced thereon, solely for the purpose of determining compliance with this Section 14, and
(iv) performing such environmental investigations and assessments as Sublandlord may desire to perform at Sublandlord's sole cost and expense, provided that such investigations and assessments shall not unreasonably interfere with the operation of Subtenant's business or Subtenant's use and enjoyment of the Premises. The investigation and assessments may also include reasonable subsurface or other invasive investigation of the Premises, including, but not limited to, soil borings and sampling of site soil and ground or surface water for laboratory analysis, as may be recommended by the Sublandlord's consultant as part of its inspection of the Premises or based upon such other reasonable evidence of Environmental Conditions warranting such subsurface or other invasive investigation. Subtenant will cooperate with Xxxxxxxxxxx and Xxxxxxxxxxx's consultants and will supply, promptly upon request, any information reasonably requested to facilitate the completion of the environmental assessments and investigations. Sublandlord and its agents and representatives shall have the right to take samples in quantities sufficient for analysis of all products, materials, and substances present on the Premises and shall also have the right to conduct other tests and studies as may be reasonably determined by Sublandlord to be appropriate in order to investigate whether Subtenant is in compliance with its obligations under this Section 14.
(I)Tests and Reports. Upon written request by Sub landlord, Subtenant shall provide Sublandlord, at Subtenant's expense, with (i) copies of all environmental reports and tests prepared or obtained by or for Subtenant or any occupant of the Premises; (ii) copies of transportation and disposal contracts (and related manifests, schedules, reports, and other information) entered into or obtained by Subtenant with respect to any Hazardous Material;
(iii) copies of any permits issued to Subtenant under Environmental Laws with respect to the Premises; (iv) prior to filing, copies of any and all reports, notifications, and other filings to be made by Subtenant or any occupant of the Premises to any federal, state, or local environmental authorities or agencies, and after filing, copies of such filings; and (v) any other relevant documents and information with respect to environmental matters relating to the Premises. Subtenant shall be obligated to provide such documentation only to the extent that the documentation is within Subtenant's possession or control.
provided, however, that in no event shall Subtenant be obligated to indemnify, defend or save harmless Sublandlord or any other Indemnified Party from and against any of the foregoing which arises out of or relates to the negligent acts or intentional misconduct of the Sublandlord or any other Indemnified Party. The obligations of Subtenant under this Section 14 shall survive any termination or expiration of this Sublease.
| (h) | No Liability of Sublandlord. |
(ii)Subtenant hereby waives and releases Sublandlord from all Environmental Claims arising from or relating to Pre Existing Conditions.
| 15. | Insurance/Right to Terminate Sublease/Use oflnsurance Proceeds and Condemnation Awards. |
If at any time "actual loss sustained" limits for the foregoing coverages are not available, the limits of such coverages shall be at the maximum percentage of the amount paid for direct "loss" to all covered property under said policy then permitted by the underwriter. Subtenant will name the Overlandlord under the Primary Lease, the Overlandlord' s mortgagee and Sublandlord or additional insureds under such policy.
determination must be made by Subtenant within ninety (90) days following the date of such damage (the "Termination Notice"). In addition, in the event that the Building Improvements shall be damaged or destroyed during the last three (3) years of the Term, Subtenant shall have the right to terminate this Sublease by giving written notice to such effect to Sublandlord and Overlandlord within fifteen (15) days after Subtenant makes its determination not to restore the Building Improvements, which determination must be made by Subtenant within ninety (90) days following the date of such damage (the "Three Year Termination Notice"). Notwithstanding the foregoing, the Termination Notice or the Three Year Termination Notice, as the case may be, shall not be effective unless, within seventy-five (75) days of the termination date set forth in the Termination Notice or the Three Year Termination Notice, as the case may be, (i) Subtenant clears the Premises and removes all debris and (ii) cures all monetary defaults under this Sublease. The duty to clear the Premises and remove all debris includes, but is not limited to, the duties to demolish and remove the Building Improvements and other improvements on the Building Pad, including all basements and foundations, to fill all excavations, to return the surface to grade, and to leave the Building Pad safe and free from debris and hazards, unless a lesser degree of removal is approved by Overlandlord in its sole discretion (said procedures are hereinafter collectively referred to as the "Premises Clearing Procedures").
defaults under this Sublease. The insurance proceeds shall be held and disbursed in accordance with the provisions of the Primary Lease. Notwithstanding anything to the contrary contained in this subsection (g), if at the time of the casualty there exists a Subleasehold Mortgage and provided that the Subleasehold Mortgagee agrees that the insurance proceeds shall first be used to clear the Premises and remove all debris in accordance with the Premises Clearing Procedures and to cure all monetary defaults under this Sublease, all insurance proceeds shall be held and applied in accordance with the conditions of the Subleasehold Mortgage.
(ii) less than the entire Premises or Building Improvements shall be taken in any Condemnation Proceeding, but it shall have been agreed between Sublandlord and Subtenant that in any such case the Building Improvements cannot be repaired, restored or replaced in a manner that permits the remaining portions thereof to be operated as an economically useful and architecturally complete unit, or (iii) all or any portion of the Common Areas (as defined in the Declaration) shall be taken in any Condemnation Proceeding, and it shall have been agreed between Sublandlord and Subtenant that the Building Improvements cannot be operated for the uses permitted herein, then this Sublease shall, or may at Subtenant's election, in the case of a taking under clause (ii) or (iii) above, terminate on the earlier of (x) the date possession is transferred to the condemning governmental authority under such Condemnation Proceeding, or (y) the date title is vested in the condemning governmental authority under such Condemnation Proceeding. In the event of termination as set forth above on account ofa complete taking pursuant to clause (i), all Rent and other amounts payable by Subtenant hereunder shall be prorated to the date on which this Sublease so terminates. Notwithstanding any judicial allocation of any award made in the Condemnation Proceeding on account of a complete taking pursuant to clause (i), in the event that, at the time of the Condemnation Proceeding, there exists a Subleasehold Mortgage, such award shall be distributed first to pay the indebtedness secured by the Subleasehold Mortgage, and the balance, if any, of any such award (or all if there is then no Subleasehold Mortgagee) to be divided between Subtenant, Sublandlord and Overlandlord, in accordance with any judicial allocation of such award made in the Condemnation Proceedings, or in the absence of any judicial attached allocation, in proportion to the respective Appraised Values of the Overlandlord's estate, the remaining estate of the Sub]andlord and the remaining estate of the Subtenant. In the event of termination following a partial taking pursuant to clauses (ii) or (iii) above, Rent and other amounts payable by Subtenant shall be prorated as provided in the case of a complete taking, but any award in the Condemnation Proceeding shall first (before either a distribution to a Subleasehold Mortgagee or a division between the parties as provided above) be used to clear the Premises and remove all debris, including, but not limited to, the demolition and removal of the Building Improvements on the Premises, including all basements and foundations, filling all excavations, returning the surface to grade, and leaving the Premises safe and free from debris and hazards unless a lesser degree of removal is approved by Sublandlord and Overland lord (upon the request of Subtenant) in their sole discretion. If this Sublease is not terminated by reason of a partial taking pursuant to clauses (ii) or (iii) above, Rent and other amounts payable by Subtenant shall be abated equitably in proportion to the percentage of the Premises and the Building Improvements so taken as of the date title is vested in the condemning governmental authority, and any award in the Condemnation Proceeding shall first (before either a distribution to a Subleasehold Mortgagee or a division between the parties as provided above) be used for Restoration (as defined in the Primary Lease) of the Premises and the Building Improvements,
but the degree of Restoration required of the Building Improvements shall be determined by
agreement between Subtenant and Sublandlord, with the consent and approval of Overlandlord and the then Subleasehold Mortgagee, if any.
J 6.Lien Claims. Subtenant shall not do any act which shall in any way encumber the title of Sub landlord in and to the Premises or the Project, nor shall any interest or estate of Sublandlord in the Premises or the Project be in any way subject to any claim by way of lien or encumbrance, whether by operation of law or by virtue of any express or implied contract by Subtenant, and any claim to or lien upon the Premises or the Project arising from any act or omission of Subtenant shall accrue only against the leasehold estate of Subtenant and shall in all respects be subject and subordinate to the paramount title and rights of Sublandlord in and to the Premises or the Project. Subtenant will not permit the Premises or the Project to become subject to any mechanics', laborers' or materialmen's lien on account of labor or material furnished to Subtenant or claimed to have been furnished to Subtenant in connection with work of any character performed or claimed to have been performed on the Premises by or at the direction or sufferance of Subtenant, provided, however, if any such lien is filed against the Premises or Project without Subtenant's consent, Subtenant shall have thirty (30) days to have such lien released or bonded over. Notwithstanding the foregoing, Sublandlord acknowledges that Subtenant or Guarantor will be entering into the Construction Contract and obtaining a construction loan to construct the Building Improvements, and that obtaining such construction loan shall not be a violation of this Section 16.
| 17. | Subtenant Alterations. |
(e) Subtenant shall either furnish to Sub landlord a bond or letter of credit in form and substance satisfactory to Sublandlord, or such other security reasonably satisfactory to Sublandlord to insure payment for the completion of all work free and clear of liens. Upon completion of any Alteration by Subtenant hereunder, Subtenant shall furnish Sublandlord with a copy of the "as built" plans covering such construction.
(b)Ownership of Alterations. At the expiration or earlier termination of this Sublease, all Alterations shall become the property of Sublandlord and shall remain upon and be surrendered with the Premises and the Building Improvements as a part thereof at the termination of this Sublease, provided that any Alterations which were not approved by the Overlandlord and the Sublandlord in accordance with the provisions of the Sublease shall, at the election of Sublandlord, and subject to the approval of the Overlandlord, be removed by the Subtenant.
shall also comply with all of the provisions of the Primary Lease with respect to the installation of signs, and Subtenant shall comply with all laws, ordinances, rules and regulations of all public authorities applicable to such signs. Subtenant shall have the right to seek approval from the Village of Northbrook by means of a special use permit for a monument type or other allowable signage for Willow Road exposure, subject to the prior written approval of Overlandlord of the size, location and materials to be used.
| 19. | Assignment and Subletting. |
| 20. | Surrender. |
Improvements which may result from such removal. If Subtenant does not remove Subtenant's personal property or such Alterations from the Premises and the Building Improvements prior to the end of the Term, however ended, Sublandlord may, at its option, remove the same and deliver the same to any other place of business of Subtenant or warehouse the same, and Subtenant shall pay the cost of such removal (including the repair of any injury or damage to the Premises and the Building Improvements resulting from such removal), delivery and warehousing to Sublandlord on demand, or Subland lord may treat Subtenant's personal property and Alterations as having been conveyed to Xx xxxxx lord with this Sublease as a Bill of Sale, without further payment or credit by Sublandlord to Subtenant.
| 22. | Default. |
Upon the occurrence of any one or more of such Events of Default, other than an Event of Default referred to in subparagraph (vii) above, or an Event of Default referred to in subparagraph (vi) above (provided that not more than two such Events of Defaults referred to in subparagraph (vi) have occurred in the preceding twelve{l2) calendar months), Sublandlord may, at its election, terminate this Sublease or terminate Subtenant's right to possession only, without terminating this Sublease. Upon the occurrence of an Event of Default referred to in subparagraph (vii) above, or an Event of Default referred to in subparagraph (vi) above (provided that not more than two such Events of Defaults referred to in subparagraph (vi) have occurred in the preceding twelve (12) calendar months), Sublandlord may, at its election, provide written notice to Subtenant of Sublandlord's election to terminate this Sublease or terminate Subtenant's right to possession only, without terminating this Sublease. From delivery of such notice, Subtenant shall have five (5) days to cure the Event of Default referred to in subparagraph (vii) above. Upon Subtenant's failure to cure said Event of Default within such five (5) day period, Sublandlord may, at its election, terminate this Sublease or terminate Subtenant's right to possession only, without terminating this Sublease. Upon termination of this Sublease or of Subtenant's right to possession, Subtenant shall immediately surrender possession and vacate the Premises and the Building Improvements, and deliver possession thereof to Sublandlord, and Sublandlord or Sublandlord's agents may immediately or any time thereafter without notice, re enter the Premises and the Building Improvements and remove all persons and all or any property therefrom, either by any suitable action or proceeding at law or equity or otherwise, without being liable in indictment, prosecution or damages, therefore, and repossess and enjoy the Premises and the Building Improvements.
apply received and collected rents from any such reletting as follows: (i) first, to the payment of any costs and expenses (including reasonable attorneys' fees) Sublandlord may incur in recovering possession of the Premises and in putting the same into good order or condition or preparing or altering the same for reletting; (ii) next, to the costs and expenses (including reasonable attorneys' fees), commissions and charges paid, assumed or incurred by Sublandlord
in and about the reletting of the Premises or any part thereof; and (iii) last, to the fulfillment of the terms, covenants, conditions, agreements and obligations of Subtenant to be met or performed under this Sublease. Any such reletting may be for the remainder of the Term of this Sublease or for such longer or shorter period of time as Sublandlord shall, in its sole discretion, determine..
subsection (b) above, if any, and the amount of the deficiency then existing shall be due and payable by Subtenant to Sublandlord on each of the days set for payment of Base Rent throughout the remaining Term of this Sublease (or which would have been the date for payment had this Sublease not been terminated). In any of the circumstances hereinabove mentioned under which, and on any of the days so specified on which, Sublandlord shall have the right to hold Subtenant
I iable to pay Sublandlord the equivalent of the amount of all the Base Rent and Additional Rent and all other amounts required to be paid by Subtenant, less the excess of the rent collected by Sublandlord, if any, from reletting the Premises over the amounts described in clauses (i) and (ii) of subsection (b), if any, Sublandlord shall have the right to elect in place and instead of holding Subtenant so liable, to recover against Subtenant as damages for loss of the bargain and not as a penalty an aggregate sum which, at the date on which Sublandlord elects to exercise such right, represents the then commuted value (i.e., the present worth) of the excess, if any, of the aggregate of the Base Rent and Additional Rent and all other amounts payable by Subtenant under this Sublease that would have accrued for the balance of the Term over the aggregate rental value of the Premises for the balance of such Term, discounted at a rate of eight and one-half percent (8.5%) per annum.
the due date until paid at a fluctuating rate equal to two percent (2%) in excess of the publicly announced prime rate of interest in effect from time to time by LaSalle Bank (the "Default Interest Rate"). Any change in such rate shall take effect on the date of such change.
(20) day period, Xxxxxxxxxxx fails to proceed within said twenty (20) day period to cure the same and thereafter to prosecute the curing of such default with due diligence (it being intended in connection with a default not susceptible of being cured with due diligence within said twenty
(20) day period that the time of Sublandlord within which to cure the same shall be extended for such periods as may be necessary to complete the same with all due diligence), then Subtenant may, at its option (but shall not be required to) do the same or cause the same to be done and, in such event, the amounts paid and expenses incurred by Subtenant in connection therewith shall be due and payable by Sublandlord to Subtenant within twenty (20) days after demand therefor from Subtenant. Any amounts not paid within said twenty (20) day period shall accrue interest at the Default Interest Rate.
lfto Sublandlord:
With a copy to:
If to Subtenant:
FCL Founders Drive, LLC c/o Four Columns, Ltd.
0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxx Xxxxxxx
Richmond Xxxxxxx LLP Sears Tower, Suite 5775 000 Xxxxx Xxxxxx Xxxxx Chicago, !llinois 60606
Attention: Xxxxx X. Xxxxx, Esq.
Northbrook Hotel Group LP.
c/o Salita Development, LLC
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Chicago, Illinois 60622 Attention: Xxxx Xxxxxxxx
With a copy to:Xxxxxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Chicago, Illinois 60603
Attention: Xxxx X. Xxx Xxxxx, Esq.
Any notice, request, demand, service or process or other communication shall be deemed given (i) on the date of delivery if delivered in person, (ii) on the next business day after being sent if sent by overnight delivery service, or (iii) on the third (3rd) business day after being mailed by registered or certified mail.
emergencies) for the purpose of inspecting the same. Any such inspections shall be solely for Sublandlord' s purposes and may not be relied upon by Subtenant or any other person.
| 32. | Applicable Law. This Sublease shall be governed by the laws of the State of Illinois. |
| 46. | Rights of Subleasehold Mortgagees. |
Sublandlord shall accept such performance on the part of such Subleasehold Mortgagee as though the same had been done or performed by Subtenant. Notwithstanding the foregoing, if any such Default is incapable of being cured by such Subleasehold Mortgagee by the payment of money, such Subleasehold Mortgagee's rights shall be governed by subsection (c) and subsection (d).
| (d) | Rights Upon Termination of Sublease by Sublandlord. |
of being cured by the payment of money and that is incapable of being or is not cured by any Subleasehold Mortgagee pursuant to the provisions of subsection (c), Sublandlord agrees to give prompt notice of such election to any Subleasehold Mortgagee (such notice being herein called a "Sublandlord's Termination Notice") specifying the nature of the
Default and the date of termination of this Sublease (said date is hereinafter referred to as the "Termination Date"). In addition, at the request of any Subleasehold Mortgagee made within the time period provided in clause (i) of subsection (ii) below and subject to the provisions of this subsection (d), Sublandlord shall enter into a new sublease of the Premises ("New Sublease") with such Subleasehold Mortgagee or, at the request of such Subleasehold Mortgagee, with any purchaser at a foreclosure sale or assignee or transferee pursuant to an assignment or other transfer in lieu of foreclosure. Any such
Subleasehold Mortgagee, purchaser, assignee or transferee with whom Xxxxxxxxxxx enters into a New Sublease is referred to herein as a "New Subtenant." Any such New Sublease shall commence as of the Termination Date, shall expire on the last day of the Term (as in effect without regard to the termination of the Sublease as to Subtenant), and shall require the New Subtenant to pay rent equal to the Base Rent and all other types of Rent and other charges required to be paid by Subtenant under this Sublease and to perform all of the conditions, covenants, agreements, terms, provisions and limitations
contained in this Sublease and shall otherwise be in the same form as this Sublease.
all amounts due to Sublandlord under this Sublease at the time of the New Sublease Request; (iii) the New Subtenant at the time of the New Sublease Request cures the Default upon which such termination was based or, if such Default cannot be cured by the payment of money, (x) New Subtenant (or any party guaranteeing the obligations of the New Subtenant) has a net worth of not less than $ l ,000,000, (y) deposits a security deposit in an amount equal to 150% of the current monthly Base Rent and (z) agrees with Sublandlord at the time of the New Sublease Request to proceed promptly and with due diligence to cure such Default and, if possession of the Premises is necessary to cure such Default, to proceed upon the execution of the New Sublease promptly and with due diligence to obtain the possession needed to cure such Default or, if such Default by its nature cannot be cured by the New Subtenant with or without possession of the Premises, the New Subtenant agrees in writing to cooperate in good faith in any legal or other action taken by Sublandlord to compel Subtenant or others to cure such Default; and
(iv) the New Subtenant pays or causes to be paid to Sub landlord at the time of execution and delivery of the New Sublease any and all sums that would be due under this Sublease at the time of the execution and delivery of the New Sublease and pays or causes to be paid to Sublandlord all expenses, including reasonable attorneys' fees, court costs and disbursements incurred by Sublandlord in connection with termination of this Sublease as to Subtenant and in connection with the execution and delivery of the New Sublease. In no event, however, shall any Subleasehold Mortgagee be under any obligation or liability whatsoever with respect to any New Sublease unless such Subleasehold Mortgagee shall
be the New Subtenant thereunder and then for only so Xxxx as it remains the New Subtenant thereunder. In connection with the execution of a New Sublease by Sublandlord, Sublandlord will confirm it has waived any Default on the part of the prior
Subtenant that are not capable of being cured by the New Subtenant or the Subleasehold Mortgagee.
(iii)Priority of New Sublease. Any New Sublease made pursuant to this subsection (d) shall be prior in right to any Leasehold Mortgage or other lien, charge or encumbrance on Sublandlord's Estate created by Sublandlord after the date of this Sublease, and shall be accompanied by an assignment by Sublandlord of all of Sublandlord's right, title and interest, if any, in and to this Sublease (which Sublandlord agrees it will not terminate or have modified or amended between the Termination Date and the execution and delivery of the New Sublease) and all of the rents, issues and profits therefrom. Notwithstanding any other provision contained in this Sublease, Sublandlord shall not be obligated to deliver physical possession of the Premises to the New Subtenant and a failure by the New Subtenant to obtain possession of the same or any portion thereof, shall not subject Sublandlord to any damages, nor shall there be an abatement of Rent by reason thereof. However, upon the request of the New Subtenant (at such New Subtenant's sole cost and expense) Sublandlord will join and cooperate with such New Subtenant in any suit brought to secure such possession.
This Sublease shall only be effective upon the execution and delivery hereof by the undersigned and upon the acceptance hereof by the Overland lord under the Primary Lease.
[REMAINDER OF XXXX INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS)
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals the day and year first above written.
SUBLA1''DLORD: | FCL FOUNDERS DRIVE, LLC, an Illinois limited liability corporation |
By: FOUR COLUMNS, LTD., an Illinois corporation,
Its Manager
"Xxx' Xxxxx-t Xxxxxxx Its:President
SUBTENANT:NORTHBROOK HOTEL GROUP L.P., an Illinois
limited partnership
By:
Name:
Its:
Xxxx X. Xxxxxxxx Managing Member
IN WITNESS WHEREOF, the parties have hereunto affixed their hands and seals the day and year first above written.
SUBLANDLORD: | FCL FOUNDERS DRIVE, LLC, an Illinois limited liability corporation |
By: FOUR COLUMNS, LTD., an Illinois corporation, Its Manager
By:
Name:
Its:
Xxxxxx Xxxxxxx President
SUBTENANT:NORTHBROOK HOTEL GROUP L.P., an Illinois
limited partnership
By: SALITA NORTHBROOK, LLC,
an Illinois limited liability company Its: General Partner
By:
Salita Development, L.L.C.,
Its:
:;.:;;;• z:mP'"Y
By:
Name:Xxxx X. Xxxxxxxx
Its:Manager
LIST OF EXHIBITS
Exhibit A-Primary Lease
Exhibit B- Legal Description of Premises Exhibit C-Site Plan
Exhibit D-Declaration
Exhibit E Plans and Specifications for Common Area Improvements and Parking Lot Exhibit FIncurred Work Amount
Exhibit G-Base Rent
Exhibit H-Guaranty of Completion of Building Improvements Exhibit I- Intentionally Deleted
Exhibit J-Appraised New Base Rent
Exhibit K-2006 Budget for Master Association Exhibit L Memorandum of Sublease
EXHIBIT A
PRIMARY LEASE
(with financial terms deleted)
(See Attached)
Execution Copy
GROUND LEASE
FOR REAL ESTATE PARCEL SE-lB-2 BETWEEN
CHICAGO TITLE LAND TRUST COMPANY, AS TRUSTEE UNDER A TRUST AGREEMENT DATED MAY 31, 2006 AND KNOWN AS TRUST N0.1114332, as Lessor
AND
FCL FOUNDERS DRIVE, LLC,
an Illinois limited liability company, as Lessee
DATED AS OF: May 31, 2006
This document was prepared by: Xxxxxx Xxxxxx LLP
6600 Sears Tower
000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
TABLE OF CONTENTS
ARTICLE I
I.I
1.2
1.3
1.4
ARTICLE2 ARTICLE3
3.1
3.2
Page
Premises; Term; Renewal Option]
| (a) | Excluded Areas; Right to Use2 |
| (b) | Lessor's Reserved Rights2 |
Place and Time of Payment?
| (a) | MannerofPayment7 |
| (b) | Date of Payment7 |
| (c) | Net Rent; Survival7 |
| 3.3 | Interest on Overdue Payments7 |
| 3.4 | Rent Net to Lessor; Additional Rent Components7 |
| 3.5 | Reimbursement of Lessor's Costs and Other Expenses8 |
| (a) | Reimbursable Expenses8 |
| (b) | Participation by Lessor in Lessee's Project Approvals8 |
| 3.6 | Mutual Cooperation9 |
| (a) | Governmental Approvals9 |
| (b) | Permits9 |
| (c) | Development of Other Real Estate Parcels; Prohibition on Health |
| 3.7 |
ARTICLE4
4.1
4.2
4.3
4.4
4.5
| (a) | Obligation to Pay11 |
| (b) | Installment Payments11 |
| (c) | Real Estate Taxes11 |
| (a) | Conditions to Xxxxxx's Right to Contest; Security12 |
| (b) | Use of Security13 |
| (c) | Imposition Refunds13 |
TABLE OF CONTENTS
(continued)
Page
| 4.6 | Notice oflntent to Contest Impositions; Costs14 |
| 4.7 | Tax Parcel Divisions14 |
| 4.8 | Rent Tax14 |
| 4.9 | Techny Property Association Membership and Assessments15 |
| 4.10 | Amendment to Declaration and Grant of Easements for Private Drives; |
Techny Property Sub-Association for Parcels SE-IB-2 and SE-IB-315
ARTICLE 5Construction of the Building and Improvements17
| 5.I | Approval of Preliminary and Final Plans17 |
| (b) | Submittals to Lessor's Committees17 |
| (c) | Lessor's Agreement to Engage Contractors or Consultants for Certain Off-Site and Public Improvements Related Costs; |
Cooperation by Xxxxxx and Xxxxxx's Obligation19
| (d) | Required Construction Materials; Initial Project Development24 |
| (e) | Failure to Make Timely Submittals24 |
| (f) | Lessor's Limited Rights to Approve Full-Site Tenant Plans for |
Tenant Finish Improvements25
| (g) | Applicability to Future Work26 |
| 5.2 | Lessee's Obligation to Construct Initial Project; Improvements26 |
| (a) | Improvements Comprising the Initial Project26 |
| (b) | Initial Project Guarantor and Guaranty and Funding27 |
| (c) | Full-Site Pad Guaranty29 |
| 5.3 | The Work29 |
| (a) | Commencement and Completion Requirements29 |
| (b) | Contract Requirements33 |
| (c) | Lessor's Right to Inspect Work33 |
| 5.4 |
ARTICLE 6
6.1
6.2
| (a) | Prohibited Activities34 |
| (b) | Restrictions on Names34 |
| (c) | CBIS Principles35 |
| 6.3 | Lessee's Covenant Not to Compete35 |
| (a) | Radius Restrictions35 |
| (b) | Reasonableness36 |
| (c) | Remedies for Breach36 |
TABLE OF CONTENTS
(continued)
Page
| 6.4 | Conformity with Legal Requirements36 |
| (a) | Xxxxxx's Obligations37 |
| (b) | Right to Contest37 |
| 6.5 | Operation, Maintenance and Repair of Premises38 |
| 6.6 | FF&E Reserve; FF&E Expenditures38 |
| (a) | FF&E Reserve38 |
| (b) | FF&E Expenditures39 |
| 6.7 | Utilities and Services39 |
| 6.8 | Covenant Against Waste39 |
| 6.9 | Compliance With Executive Order39 |
| (a) | Requirements; Xxxxxx's Representations and Warranties39 |
| (b) | Prohibitions on Transfers or Events in Violation of Requirements40 |
| (c) | Lessor's Representations and Warranties40 |
| (d) | Prohibitions on Lessor Triggering EventsI |
ARTICLE 7
7.1
| (a) | Permanent Property Insurance42 |
| (b) | Builder's Risk Insurance During Construction42 |
| (c) | Boiler and Machinery Insurance43 |
| 7.2 | Liability and Other Insurance43 |
| (a) | Commercial General Liability Insurance43 |
| (b) | Worker's Compensation Insurance43 |
| (c) | Automobile Liability Insurance44 |
| (d) | Special Endorsements or Policies44 |
| (e) | Umbrella Liability Insurance44 |
| 7.3 | Professional Liability Insurance44 |
| 7.4 | Approval and Evidence oflnsurance45 |
| 7.5 | Named Insureds; Additional Insureds45 |
| 7.6 | Insurance During Construction45 |
| (a) | Types of Policies and Coverages45 |
| (b) | General Requirements46 |
| 7.7 | Notice of Cancellation46 |
| 7.8 | Adjustment of Losses; Use of Proceeds47 |
| 7.9 | Waiver ofSubrogation47 |
| 7.10 | Renegotiation; Disputes48 |
| 8.1 | Waiver of Right to Mechanics' Liens48 |
| 8.2 | Liens Against Lessor's Estate49 |
TABLE OF CONTENTS
(continued)
Page
ARTICLE 9
9.1
9.2
| (a) | Assignments to Permitted Assignees50 |
| (b) | No Other Assignments Prior to Substantial Completion Date51 |
| (c) | Assignments After Substantial Completion52 |
| (d) | Assignment Documents54 |
| (e) | Leasehold Mortgages Not Prohibited54 |
| (f) | Other Actions55 |
| (a) | Conditions on Full-Site Tenant Leases and Tenant Leases55 |
| (b) | Non-Disturbance and Attomment |
| Agreements57 |
| (c) | Forms for and Schedule ofTenant Leases58 |
| (d) | Conformity to Permitted Use58 |
| 9.3 | Mortgage by Lessee58 |
| (a) | Leasehold Mortgages Permitted; Notice to Lessor58 |
| (b) | Requirements for Effective Notice59 |
| (c) | Leasehold Mortgagee's Consent to Certain Actions Required59 |
| 9.4 | Mortgage by Lessor59 |
| 9.5 | Sale of Lessor's Estate; Xxxxxx's Right of First Offer60 |
| (a) | First Offer60 |
| (b) | Xxxxxx's Failure to Exercise Rights60 |
| (c) | Xxxxxx's Failure to Sell Pursuant to Terms in Offer Notice60 |
| (d) | Continuing Rights60 |
10.lCondemnation of Entire Premises or a Portion Where No RestorationI
| 10.2 | Partial Condemnation61 |
| (a) | Restoration; Other Obligations61 |
| (b) | Use of Award62 |
| 10.3 | Condemnation for Limited Time63 |
| (a) | Lease Remains in Effect.63 |
| (b) | Allocation of Award63 |
| (c) | Restoration63 |
| 10.4 | Disputes63 |
| 11.1 | Damage Requiring Restoration by Lessee64 |
| 11.2 | Damage Allowing Lessee an Option to Terminate; Lessor's Option to |
TABLE OF CONTENTS
(continued)
Page
| (a) | Tennination Notice64 |
| (b) | Lessor's Notice Requiring Restoration65 |
| (c) | Tennination Date if No Notice by Lessor Requiring Restoration; |
Xxxxxx's Obligation to Clear Premises65
| (d) | Tennination of Full-Site Tenant Lease or Rebuilding of Full-Site |
Pad Improvements66
| 11.3 | Damage Allowing Lessee an Option to Tenninate; Clearing of Premises or Pads67 |
| (a) | Conditions to Tennination by Lessee67 |
| (b) | Clearing of Full-Site Pad Where Full-Site Tenant Tenninates Its |
Tenant Lease After a Casualty68
| 11.4 | Procedures for Restoration68 |
| 11.5 | Application oflnsurance Proceeds68 |
| (a) | If Lease is Not Tenninated68 |
| (b) | If Lease Is Tenninated69 |
| 11.6 | Damage and Destruction of Tenant Buildings or Other Improvements on a |
Full-Site Pad69
| 11.7 | Disputes69 |
ARTICLE 12Changes and Alterations70
| 12.1 | Conditions Governing Changes and Alterations70 |
| (a) | Lessee's Rights and Obligations70 |
| (b) | Lessor's Inspection Rights75 |
| 12.2 | Submittal and Approval of Preliminary and Final Plans for Major Changes |
or Redevelopment Plans75
| (a) | Submittals to Lessor's Committees75 |
| (b) | Infonnal Cooperation, Review and Comment.76 |
| (c) | Presentation of Submittals; Timing for Approval Process77 |
| (d) | Xxxxxx's Discretion With Respect to Approvals78 |
| (e) | Failure to Make Timely Submittals81 |
| 12.3 | Added Components81 |
| 12.4 | Changes and Alterations Constitute a Part of the Premises83 |
| 12.5 | Redevelopment of the Premises83 |
| (a) | Redevelopment Plan and Submittals83 |
| (b) | Infonnal Cooperation, Review and Comment84 |
| (c) | Time Periods for Lessor's Review, Comment and Approval.84 |
| (d) | Conditional Approvals85 |
| 12.6 | Inspections or Approvals by Lessor85 |
| 12.7 | Application to Work85 |
TABLE OF CONTENTS
(continued)
Page
| 12.8 | Disputes85 |
| 13.1 | Interest on Deposited Funds85 |
| 13.2 | Funds Held in Trust86 |
| 13.3 | Defaults86 |
| 14.1 | lndemnification86 |
| (a) | By Lessee86 |
| (b) | By Lessor87 |
| (c) | Limitations on Indemnification87 |
| 14.2 | Notice of Claim or Potential Claim87 |
| 14.3 | Defense of Claims88 |
| 14.4 | Failure to Defend; Separate Representation88 |
| 14.5 | Costs Associated with Defaults89 |
| (a) | Payments By Lessee89 |
| (b) | Payments By Lessor89 |
| 14.6 | Survival of Indemnities89 |
| 15.1 | Xxxxxx's Compliance with Environmental Laws90 |
| 15.2 | Lessor's Right to Conduct Environmental Tests90 |
| 15.3 | Lessee's Remediation Obligations91 |
| (a) | Discovery of an Environmental Event.91 |
| (b) | Xxxxxx's Obligation to Notify Lessor91 |
| (c) | Lessor's Right to Perform Remediation92 |
| (d) | Xxxxxx's Right to Contest92 |
| 15.4 | Disputes92 |
| 16.1 | Inspection93 |
| 16.2 | Exhibition for Sale or Lease93 |
| 16.3 | Lessee to Accompany Lessor93 . |
| 16.4 | Quiet Enjoyment93 |
| 17.1 | Defaults94 |
| (a) | Rent Defaults94 |
| (b) | Insurance Evidence and Insurance or Condemnation Award |
| (c) | Lien Defaults94 |
700028-2-VI-
TABLE OF CONTENTS
(continued)
Page
| (d) | Abandonment.94 |
| (e) | Submittal or Construction Defaults94 |
| (f) | Operation Defaults94 |
| (g) | Covenant Defaults94 |
| (h) | Dispute Resolution Defaults95 |
| (i) | Bankruptcy95 |
| 17.2 | Events ofDefault95 |
| (a) | Uncured Payment, Insurance, Lien or Abandonment Events of |
| (b) | Construction or Operation Events ofDefault.95 |
| (c) | Covenant Events ofDefault.96 |
| (d) | Dispute Resolution Events of Default96 |
| (e) | Involuntary Bankruptcy or Insolvency Events ofDefault.96 |
| (f) | Assignment for the Benefit of Creditors Events of Default96 |
| (g) | Voluntary Bankruptcy Events of Default96 |
| 17.3 | Lessor's Remedies97 |
| (a) | Right to Terminate Lease97 |
| (b) | Reletting of Premises97 |
| (c) | Amounts Payable By Lessee97 |
| (d) | Other Remedies98 |
| 17.4 | Temporary Waiver of Exercise of Lessor's Remedies98 |
| 17.5 | Remedies of Lessor Cumulative98 |
| 17.6 | Lessor's Right to Cure Xxxxxx's Defaults98 |
| 18.1 | Negotiation and Mediation Prior to Arbitration99 |
| (a) | Negotiation Efforts99 |
| (b) | Mediation Efforts99 |
| 18.2 | Procedure for Initial Appointment of Arbitrators99 |
| 18.3 | Failure to Appoint Arbitrators; Appointment of Successors100 |
| 18.4 | Individuals Qualifying as Arbitrators100 |
| 18.5 | Rules Governing Arbitration; Decisions100 |
| (a) | AAA Rules100 |
| (b) | Modification of AAA RulesIO I |
| (c) | Majority Decision02 |
| 18.6 | Costs102 |
TABLE OF CONTENTS
(continued)
Page
19.2
19.3
I 9.4
19.5
ARTICLE20
20.1
20.2
ARTICLE21
21.1
21.2
21.3
XXXXXXX00
22.1
22.2
ARTICLE23 ARTICLE24
24.1
24.2
24.3
24.4
ARTICLE25
25.1
25.2
25.3
25.4
| (a) | Notice of Initial Appointment.103 |
| (b) | Independent Appraisals; Appointment of Third Appraiser103 |
| (c) | Third Appraisal03 |
Failure to Appoint; Appointment of Successors! 05
Subordination and Attornment06
Attornment to Successor-Lessor06
Estoppel Certificates07
By Lessor07
Reliance07
Surrender of Premises08
Condition of Premises Upon Surrender08
Rights of Leasehold Mortgagees11l
| (a) | Notice of Termination; New Lease112 |
| (b) | New Lease Request112 |
| (c) | Priority of New Lease13 |
| 25.5 | Right to Arbitration13 |
| 25.6 | Cooperation by Lessor114 |
| 25.7 | Rights Inure to Leasehold Mortgagee114 |
| 26.2 | No Conflicts114 |
TABLE OF CONTENTS
(continued)
Page
| 26.3 | Authority115 |
| 26.4 | No Brokers115 |
| 26.5 | Environmental Matters115 |
Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Exhibit F Exhibit G Exhibit H Exhibit I Exhibit J
Exhibit K Exhibit L
Exhibit M Exhibit N Exhibit 0 Exhibit P
27.1
27.2
27.3
27.4
27.5
27.6
27.7
27.8
27.9
27.10
27.11
27.12
27.13
27.14
27.15
27.16
27.17
27.18
27.19
27.20
Legal Description of Land................................................................................. A-1
List of Permitted Exceptions ..............................................................................B-1
Definitions ..........................................................................................................C-1
Proposed Final Plans and Specifications for Hotel Project ............................... D-1 Preliminary Schedule for Initial Project Development and Construction .......... E-1 Form of Letter of Credit ..................................................................................... F-1
Form of Guaranty ..............................................................................................G-1
Form of Full-Site Pad Guaranty ........................................................................ H-1
Legal Description for Parcel SE- I B-31-1
Examples Determining Appraised Value and Appraised New Base Rent
Where Two Appraisals Have Been Obtained ......................................................J-1 Examples Determining Appraised Value Where Three Appraisals Are Required.............................................................................................................K-1
Examples Determining Appraised New Base Rent Where Three
Appraisals Are Required ....................................................................................L-1
Form ofEstoppel Certificate to Be Executed by Lessor ...................................M-1 Form of Short Form of Lease ............................................................................ N-1
Village Transportation Impact Fee Ordinance0-1
Required Modifications to the Proposed Final Plans and Specifications........... P-1
700028-2-IX·
TABLE OF CONTENTS
(continued)
Page
Exhibit Q Exhibit R Exhibit S
Form of Transferee AgreementQ-1
Form of Tenant Non-Disturbance and Attomment Agreement..........................R-1 Site Plan.............................................................................................................. S-1
700028-2-x-
GROUND LEASE
This Ground Lease is dated as of May 31, 2006 ("Effective Date"), and is between CHICAGO TITLE LAND TRUST COMPANY, not personally but as Trustee under a Trust Agreement dated May 31, 2006, and known as Trust No. 1114332 ("Lessor"), and FCL FOUNDERS DRIVE, LLC, an Illinois limited liability company ("Lessee").
RECITALS
| X. | Xxxxxx is the owner of certain Xxxxxxxx (as defined in Section I. I below); and |
ACCORDINGLY, Xxxxxx and Xxxxxx hereby agree as follows:
ARTICLE I
Premises and Term
1
payable during the Renewal Term, which shall be determined as provided in Section 3.l(b) below, all of the other terms and conditions that are provided for in this Lease shall remain in full force and effect during the Renewal Term. If Lessee fails to give such notice on or before December 31, 2065, or if a Default that has not been cured then exists on the part of Lessee under this Lease exists as of such date, then this Lease shall expire by its own terms automatically and without any further action on the part of either party as of December 31, 2067, unless otherwise agreed in writing by Lessor and Xxxxxx.
| 1.2 | Public Areas; Reservation of Rights. |
otherwise provided in this Lease, Xxxxxx acknowledges neither Lessor nor Xxxxxx's Beneficiary, nor any of Lessor's or Xxxxxx's Beneficiary's Affiliates, agents, employees, consultants or advisors has made any representation as to the condition thereof, and Xxxxxx has taken possession of the Premises in an "as is" condition.
ARTICLE2
Definitions
All capitalized terms used in this Lease shall have the definitions assigned to them in Exhibit C attached hereto.
ARTICLE3
Rent Pavments
3.IIntentionally Deleted.
| 3.2 | Place and Time of Payment. |
wire transfer, the amount transferred and the date of transfer or (ii) at such other place or in such other manner as Lessor may from time to time designate on not less than thirty (30) Days' prior written notice to Xxxxxx.
| 3.5 | Reimbursement of Lessor's Costs and Other Expenses. |
| 3.6 | Mutual Cooperation. |
round suburban country club (without a golf course or a hotel) that is presently owned and operated by Five Seasons and includes amenities such as tennis (indoor and outdoor), swimming (indoor and outdoor), fitness center, gym, day spa and beauty facilities, child care services, and a variety of dining facilities (the "Five Seasons Suburban Country Club"), or any other business similar in nature to the Five Seasons Suburban Country Club, including without limitation, a dedicated sports training or fitness facility such as a tennis club, health club, fitness club or type of suburban country club similar to Five Seasons Suburban Country Club, unless such project includes such uses only as uses ancillary to a different primary use (such as a fitness center contained within a full service hotel or ice skating or indoor soccer field facility). Lessor specifically acknowledges and agrees that Xxxxxx shall have the right to develop an Initial Project on the Premises that consists of a full service hotel, which shall include workout facilities, restaurant, an indoor swimming pool and/or the other amenities depicted in the Proposed Final Plans and Specifications identified in Exhibit D, subject to resolution and completion of the matters identified in Exhibit P (the "Hotel Project"). Lessor represents and warrants that no ground lease in effect as of the Effective Date for any portion of Parcels SE-I, EC-I, EC-2 of the Techny Land, or the Techny Outlot presently permits any Lessee, Permitted Sublessee or other occupant to develop, own, or operate a full service hotel on any of the aforesaid parcels similar to the Hotel Project, but Lessee acknowledges Lessor has advised Lessee that the Five Seasons Ground Lease for Parcel NC-IC specifically permits Five Seasons to develop a full-service hotel on a portion of Parcel NC-IC, subject to approval of Lessor's Beneficiary of the plans therefor.
ARTICLE4
Impositions and Association Assessments
| 4.1 | Payment of Impositions. |
the Term ends or the Commencement Date, as the case may be (whether or not, during the Term of this Lease, such Imposition shall be assessed, levied, or imposed upon or become due and payable and a lien upon the Premises or the Building or other Improvements and any part thereof), in order that Lessor shall pay that proportion of such Imposition which the part of such fiscal period included in the period of time after the date the Term ends or prior to the Commencement Date, as the case may be, bears to such fiscal period, and Xxxxxx shall pay the remainder thereof.
| 4.4 | Notices of Impositions. Lessor shall endeavor to send to Lessee, within thirty |
(30) Days of Xxxxxx's receipt thereof, copies of any notices of Impositions or proposed Impositions received by Lessor from any Governmental Authority; provided, however, that Lessor's failure to send any such notice to Lessee shall not relieve Lessee from any obligation hereunder if Xxxxxx has actual notice of such Imposition.
| 4.5 | Right to Contest Impositions. |
Lessee, and Xxxxxx shall indemnify and save Lessor harmless from and against any such Xxxx, costs or expenses. In addition, Xxxxxx shall reimburse Lessor for any reasonable attorneys' fees and costs incurred by Xxxxxx in reviewing or approving any Security and in monitoring the status of any Imposition being contested. Such fees and costs shall be deemed Additional Rent payable by Lessee hereunder and shall become due and payable by Xxxxxx immediately after the same shall have been paid by Lessor and notice thereof shall have been given to Lessee, and shall bear interest at the Lease Interest Rate from the date of such payment by Lessor until the date when paid by Xxxxxx.
"Techny Property Association" ("Techny Property Association"), created pursuant to that certain "Declaration Establishing Covenants, Conditions, Restrictions, Easements and Rights for Real Estate Parcels NC-I, EC-I, EC-2 and SE-I within the Techny Property, Northbrook, Illinois, and Providing for the Techny Property Association" dated as of July 13, I 999, and recorded on November 12, 1999, in the Office of the Recorder of Cook County, Illinois, as Document No. 09067537 (as the same has been amended by the Amended and Restated Declaration, and thereafter, as such Amended and Restated Declaration may from time to time be amended as provided therein, the "Declaration"). The Techny Property Association is an association of owners and ground lessees of certain portions of the Techny Land and is responsible for the continuity, care, conservation, maintenance, and operation in a first-rate condition and in accordance with predetermined standards of all Common Areas or Facilities. As a member of the Techny Property Association, Lessee shall be subject to the easements, terms, conditions and provisions of the Declaration, including without limitation, the obligation to pay its share of all costs and expenses incurred by the Techny Property Association in carrying out its responsibilities by means of an assessment against the Project and Lessee levied by the Techny Property Association pursuant to the Declaration. In addition, Xxxxxx shall indemnify the Techny Property Association from and hold it harmless against all Claims (including without limitation those arising under Article 8 of this Lease) arising out of the Work or any other work in connection with the Project, including any work done in constructing, modifying or otherwise installing any improvements, including landscaping, within any Common Areas or Facilities.
reasonably determined by Xxxxxx and approved by Lessor. The purposes of the Parcels SE l B-2/SE- IB-3 Sub-Association shall be as follows:
The declaration creating the Parcels SE-1B-2/SE-!-B-3 Sub-Association shall be subject to the approval of Lessor and the Village (as required under the Annexation Agreement), and shall, in
addition, provide that none of the provisions described in clauses (i) through (v) of the preceding sentence may be amended without the consent of Lessor. Those improvements to be maintained by the Parcels SE-IB-2/SE-lB-3 Sub-Association that are described in clauses (i), (ii), (iii) and
(iv) above and that are to be constructed by Lessee as part of the Initial Project are sometimes herein referred to as the "Parcels SE-1B-2/SE-1B-3 Common Area Improvements."
ARTICLES
Construction of the Building and Improvements
| 5.1 | Approval of Preliminary and Final Plans. |
afforested area landscaping within the Perimeter Open Space. Instead, to the extent not performed by the Lessee under the Parcel SE-IB-3 Ground Lease, Lessee shall landscape such portions of the Perimeter Open Space and any common areas of Parcel SE-lB-2 designated as such in the declaration creating the Parcel SE-IB-2/SE-lB-3 Sub-Association, which areas will be maintained by the Parcels SE-IB-2/SE-IB-3 Sub-Association in a manner consistent with the overall Project landscaping plan for Parcels SE-I B-2 and SE-I B-3 approved by Lessor as part of the Final Plans and Specifications for the On-Site Improvements. To the extent not prepared by Lessor or delivered to Lessor by Lessee prior to execution and delivery of this Lease, (1) not later than the later of the two dates identified in the Preliminary Schedule as the dates by which Lessee shall submit the proposed Final Engineering for the Site Work, which date shall be subject to extension by Lessor in its sole discretion, (2) no later than the later of the two dates identified in the Preliminary Schedule as the date by which Lessee shall submit the proposed Final Plans and Specifications for the Parcels SE-lB-2/SE-IB-3 Common Area Improvements, which date shall be subject to extension by Lessor in its sole discretion, and (3) not later than the later of the two dates identified on Exhibit E as the dates for "Delivery of Proposed Final Plans and Specifications for the Hotel Project", as applicable, Lessee shall cause the Tenant for the Hotel Project to submit modified Proposed Final Plans and Specifications for the Hotel Project (but in all events no later than two weeks before the date such Final Plans and Specifications are submitted for a building permit) (each such date by which any of the foregoing submittals is required to be submitted is called an "Initial Project Submittal Date"), Lessee shall (or, in the case of a Pad Tenant, shall cause such Tenant to) submit to Lessor (prior to submitting the same to the Village), for review and approval by Lessor's Committees within the time periods set out in Section 12.2 for approval thereof. None of the foregoing Initial Project Submittals shall be deemed to have been submitted to the Society of the Divine Word or Lessor's Committees for approval unless such Submittal is accompanied by a written request for approval. Only proposed Preliminary Plans or proposed Final Plans and Specifications submitted to Lessor with a written request for approval will be submitted to Xxxxxx's Committees for approval. All other drafts or proposed Preliminary Plans or modifications to the Proposed Final Plans and Specifications delivered to Lessor's consultants, attorneys or agents shall be deemed delivered for purposes of comment and preliminary review only. Lessor shall approve any modifications to the Proposed Final Plans and Specifications for the Hotel Project, any proposed Final Engineering for the Site Work or any proposed Preliminary Plans or proposed Final Plans and Specifications for the Parcels SE-IB-2/SE-IB-3 Common Area Improvements, as the case may be, submitted by Xxxxxx, provided that they are, in Lessor's reasonable judgment, substantially consistent with and the logical extension of the Proposed Final Plans and Specifications and include the missing information or required modifications described in Exhibit P with respect to the Hotel Project or, in the case of the proposed Final Engineering for the Site Work, the Site Plan.
execution and delivery of this Lease, but in all events prior to issuance of any building permit for the Initial Project, Lessee and Lessor shall enter into the Transferee Agreement with the Village, consistent with the respective obligations of the parties set forth herein with respect to Off-Site Improvements and other Improvements that are considered Public Improvements under the Annexation Agreement or other applicable codes and ordinances of the Village. Lessee shall pay the Special SE-I Transportation Impact Fees, and Lessor and Lessee shall each pay any and all other fees due under the Transferee Agreement, deposit all letters of credit or other security and obtain all permissions required by the Village in connection with the Transportation Agreement, the Subdivision Agreement and the Transferee Agreement, in connection with the construction of the respective portions of the Off-Site Improvements and Public Improvements, if any, each is to construct, including (without limitation) approval by the Village of the final Traffic Improvement Plans, for the respective portions of the Off-Site Improvements and Public Improvements. Notwithstanding any other provision of this Section 5.1, the following provisions shall apply to the Initial Project:
Association, as contemplated in Section 4.10, all in accordance with the Approved Final Plans and Specifications therefor).
(2) the extension of the existing sanitary sewer presently terminating in the vicinity of the southern boundary of Parcel SE-IB-1 within the Northbrook Greens project and on the west side of Founders Drive, and the installation of a lift station that will serve the Improvements on Parcel SE- I B-2 and Parcel SE I B-3 and all future improvements on those parcels of the Techny Land commonly referred to as "Parcel SE-IA-2" and "Parcel SE-IA-X" (collectively, the "Founders Drive Sewer Extension"), which extensions and related improvements are under the jurisdiction of the Village and the Illinois Environmental Protection Agency.
The approved plans for the Founder Drive Sewer Extension include certain On-Site Improvements (approximately 189 lineal feet of sewer pipe and a manhole serving as the connection to the lift station) for Parcels SE-IB-2, SE-IB-3, SE-IA-2', and SE-IA-X. Lessee shall pay its proportionate share of the costs of such On-Site Improvements as determined by V3 based on actual costs incurred by Lessor. Lessee and Lessor have agreed on the final locations of all intersections between the private driveways to be located on Parcel SE-IB-2 and Parcel SE-IB-3 and Founders Drive, and Lessor has commissioned (x) the Final Engineering for the Founders/Xxxx Extension for review
and approval by the Village (and !DOT, if necessary, due to the proximity of any such intersections to the Willow Road/Founders Drive intersection), the plans for which have been submitted to the Village for approval; (y) the Founders Drive Sewer Extension; and
generated from each such lessee's Parcel as of the date the easement is executed and delivered; provided, however, that at the time the development of each of the Parcels is completed, if requested by any lessee, the respective shares of all such lessees shall be readjusted based upon the then projected sanitary sewage treatment usage for such each such lessee's Parcel as compared to then projected sanitary sewage treatment usage for all such Parcels. Lessor and the Village shall also have the right, but not the obligation, to perform any maintenance, repairs or replacement work not performed by any such lessees, all at the cost and expense of such lessees to be shared as provided herein, and the form of the easement shall be subject to the approval of the Village.
Lessor's Committees in connection with approval of the Proposed Final Plans and Specifications, all Buildings on the Premises must be constructed of brick. The Project shall contain a total combined Gross Square Feet of no more than approximately 133,100 Gross Square Feet (but may be adjusted by Lessee in the process of completing the Final Plans and Specifications or at any time thereafter up to a maximum of 133,100 Gross Square Feet) without being considered an Added Component requiring an adjustment in the Base Rent under Section 3.l(c) above); provided, however, that nothing in this Section 5.1 or in Section 3.l(c) shall be deemed to modify the requirements of Section 5.2(d) with respect to Lessor's approval rights with respect to any Added Components. Any uses not permitted under the applicable zoning for the Premises shall be subject to Lessor's prior written approval in the same manner as required pursuant to Section 12.2. in connection with Added Components, which approval shall not be unreasonably withheld or delayed as long as the proposed use is consistent with the overall up-scale, mixed-use nature intended for the Project and Lessor believes it will not detract from the overall image of the other developments on the Techny Land. Xxxxxx acknowledges and agrees that it has previously approved the uses contemplated in connection with the Hotel Project. In addition to the foregoing, the Initial Project will include all site clearing and preliminary or rough site grading of all of the Land, and all landscaped plantings required under the Annexation Agreement (specifically including those required under the Annexation Agreement Amendment) and as otherwise approved by Lessor to be planted within the Perimeter Open Space in connection with the Initial Project. From time to time during the Term, Lessee may also construct, if approved as provided in Section 12.3 below, as an Added Component or Added Components, additional Gross Square Feet of Lessee-owned or Full-Site Tenant-owned Buildings, up to the maximum permitted under the Annexation Agreement and the applicable zoning, subject to all of the applicable terms and provisions of this Article 5 and Article 12, including without limitation, approval by Lessor of the Preliminary Plans and Final Plans and Specifications for each such Added Component, provided (x) the use is for a Permitted Use and as part of the approval by Lessor of the Final Plans and Specifications for such Added Component, and (y) the Base Rent payable under Section 3.l(b) is adjusted as provided in Section 3.l(c), effective as of the date specified in said Section 3.l(c).
21
previously paid with respect to such portion of the Land as to which this Lease is terminated) shall be forfeited to Lessor.
| 5.2 | Lessee's Obligation to Construct Initial Project; Improvements. |
Such Full-Site Tenant Lease shall also require the Tenant to either (1) commence and complete the development and construction of the Hotel Project within a fixed period of time substantially in accordance with (A) the Approved Plans and Approved Schedule that have been approved by Lessor pursuant to the procedures outlined in Section 12.2(c) and (B) the Final Plans and Specifications approved by and deposited with Lessor for each such portion (and any additional
drawings, plans and specifications and change orders as may subsequently be approved by Lessor), or (2) the Full-Site Tenant shall be obligated under its Tenant Lease to commence payment of rent thereunder within a fixed period of time after execution of such Full-Site Tenant's Tenant Lease or such Tenant Lease shall be subject to termination, either of such time periods to be subject to Lessor's approval at the time of Lessor's approval of the Tenant Lease for such Full-Site Tenant. In addition to the Improvements comprising the Initial Project, as part of the Site Work and Parcels SE-IB-2/SE-IB-3 Common Area Improvements for the Initial Project, Lessee covenants to construct (to the extent Lessor has not elected to do so as provided in Section 5.I (b) above) the following that are required by the Village to be constructed in connection with the development of the Land pursuant to all applicable Village codes, the Annexation Agreement or the Transportation Agreement and the requirements of any other Governmental Authority: (I) all On-Site Improvements for the Initial Project, including any Public Improvements within the Premises from the point at which they terminate (as of the date of this Lease or as constructed by or paid for by Lessor as provided in Section 5.l(b) above); (2) all connections to existing Off-Site Improvements from the Improvements; and (3) those improvements within those portions of the Perimeter Open Space along Willow Road described in clauses (x) and (y) of Section 5.1(b)(i) above, all of which shall be constructed substantially in accordance with (x) the Final Plat, the final Traffic Improvement Plans and the Final Plans and Specifications approved by Lessor, the Village and any other applicable Governmental Authority having jurisdiction with respect therefrom is as otherwise required to serve the Premises and the Initial Project; and (y) the Approved Schedule. Notwithstanding the foregoing, Lessee shall not be obligated to construct those Off-Site Improvements for the Land (even if required to be constructed for the Initial Project) that Lessor is obligated to construct pursuant to the Off-Site Improvement Plans approved by the Village and IDOT or any other Governmental Authority having jurisdiction with respect thereto.
If the identity and financial capacity of the Guarantor or Guarantors under the Guaranty provided pursuant to clauses (i) or (ii) above are such that Lessor cannot be assured Guarantor or Guarantors has adequate net worth to assure Lessor it has sufficient funds available under the Guaranty to fund the entire amount of the budgeted costs of those portions of the Initial Project that are covered by such Guaranty, but a portion of such costs are to be funded by means of a loan or loans, then Lessee shall provide evidence of a development loan to fund such amounts prior to a construction loan and any shortfalls between the construction loan and the budgeted costs for such portion of the Initial Project (prior to commencement of any Work in connection with the Initial Project) and the amount of the Guaranty in order for Lessor to be assured the required funds will be available to Lessee or the Full-Site Tenant to fund the projected costs of the design, engineering and construction work necessary to complete the work called for in x the Approved Site Engineering Plans for all Site Work and all On-Site Improvements for the Initial Project, (y) the Final Plans and Specifications for the Parcels SE-lB-2/SE-lB-3 Common Area Improvements, and (z) the Final Plans and Specifications for the Full-Site Pad Improvements which, under the terms of the relevant Full-Site Tenant Lease, such Full-Site Tenant will construct or Lessee has agreed to construct for such Full-Site Tenant, as applicable.
Guaranty from Lessee and in the form attached hereto as Exhibit G. Each Full-Site Pad Guaranty shall guarantee that once construction commences on the Full-Site Pad, the Improvements to be constructed thereon shall be either (i) Substantially Completed within a specified period of time that will depend upon the specific nature of such Improvements, or (ii) if not Substantially Completed within such period of time, demolished and the Full-Site Pad returned to grade with all debris removed and the area seeded with grass, within a specified period of time following the anticipated date for Substantial Completion of the Full-Site Pad Improvements, in either case free of all liens and encumbrances, including without limitation mechanics' liens. For all purposes of this Lease, however, the requirement for a Full-Site Pad Guaranty shall be deemed to have been satisfied if the actual Full-Site Tenant executing a Full Site Tenant Lease in which such Full-Site Tenant agrees to complete the Full-Site Pad Improvements has a net worth (as shown in its most recent audited financial statements) at least equal to five (5) times the then total costs (both hard and soft costs) budgeted for the Full-Site Pad Improvements. Such financial statements must be for the Full-Site Tenant itself and not a holding company or consolidated group in which such Full-Site Tenant is an Affiliate. If such Full-Site Tenant does not have separate audited financial statements, then a Full-Site Pad Guaranty in the form attached hereto as Exhibit H must be provided from the ultimate parent entity of the Full-Site Tenant or another Affiliate of Full-Site Tenant that has the required net worth or from Lessee.
| 5.3 | The Work. |
account market and other relevant conditions), and (z) Substantially Completed by the date specified in Exhibit E attached hereto or any subsequent Approved Schedule and finally completed as soon thereafter as is practicable. Lessee shall have a period of two years following receipt of Lessor's approval of the Approved Plans for any Added Component to commence construction thereof, and once Lessee commences construction of such Added Component, Lessee shall cause such Added Component to be Substantially Completed within the time period set out in a Preliminary Schedule that is included in the Submittals for approval by Lessor and by virtue of being approved by Lessor becomes the Approval Schedule for such Added Component, but such period of time shall be reasonable given the nature of such Added Component and in all events shall require such Substantial Completion to occur within three years of the date construction commences.
to one hundred ten percent (110%) of the entire cost of the Work (such cost to be estimated by an architect or engineer selected by Xxxxxx and reasonably satisfactory to Lessor under whose supervision the Work is to be conducted under an agreement creating an escrow ("Escrow Agreement") whereby Lessor, the Proceeds Trustee or such title insurance company shall from time to time pay out sums upon the written request of Lessee and conditioned upon the title insurance company issuing an endorsement to Xxxxxx's owner's title insurance policy insuring Lessor against possible mechanics' lien claims through the date of issuance thereof, which request shall be accompanied by:
Lessor, the Proceeds Trustee or the title insurance company, as the case may be, shall not be required to pay any amounts out of the funds held pursuant to the Escrow Agreement at any time when the Premises or Lessor's Estate shall be encumbered with any such lien not bonded to the satisfaction of Lessor. Upon submission of proof satisfactory to Lessor that the Work has been paid for and completed, the balance of the funds then held pursuant to the Escrow Agreement shall, except as otherwise provided in Section 13.3, be paid to Lessee.
Notwithstanding the foregoing, the Initial Guaranty, if delivered pursuant to Section uili}from FCL Builders, Inc. and Four Columns, Ltd., and any other Guaranty provided by Lessee pursuant to Section 5.2(b), with respect to any other portions of the Initial Project that Lessee has agreed to construct for a Tenant pursuant to a Tenant Lease, will satisfy the foregoing requirements with respect to the Site Work and Parcels SE-1B-2/SE- 1B-3 Common Area Improvements, but each of the Full-Site Pad Improvements, any
Major Change (including an Added Component) or Redevelopment Plan, will require its own Guaranty as contemplated in Section 5.2(b) or clause (3) of Section 12.l(a)(v). In addition a Pad Guaranty meeting the requirements of Section 5.2(b)(i) together with delivery of or satisfactory evidence of the remaining matters described in said Section 5.2(b)(i) shall satisfy the foregoing requirements with respect to the Hotel Project.
for materials, labor or services rendered in connection with the Work shall provide that they may be assigned to the First Leasehold Mortgagee and to Lessor (subject to the rights of the First Leasehold Mortgagee) and shall contain provisions to the effect that the Contractor, subcontractors, architect, or others rendering services in connection with the Work authorize the use of any and all plans and specifications by Lessor or the First Leasehold Mortgagee, any Guarantor or Guarantors under either the Initial Guaranty, the Full-Site Pad Guaranty, or any surety referred to in Section 5.3(c)(ii) above, as the case may be, in order to facilitate completion of the Work in the event any Event of Default under this Lease shall occur and Lessor elects to terminate this Lease on account of such Event of Default. Notwithstanding the foregoing, Lessor shall not exercise any of its rights under this Section 5J(b) until all time periods afforded a First Leasehold Mortgagee under Article 25 have expired or such First Leasehold Mortgagee has failed to exercise any of its other rights under said Article 25 in the manner provided therein.
ARTICLE6
Use of Premises; Compliance with Requirements; Maintenance and Repair
used by Lessee or its Tenants for such uses (which uses expressly exclude the Prohibited Uses, and shall not violate the CBIS Principles) and for no other purpose ("Permitted Use"). In the event the full-service hotel to be constructed located on Parcel SE-IB-2 as part of the Initial Project is no longer operated by Sheraton, Lessee shall replace Sheraton as the operator and obtain a franchise agreement with a hotel operator operating a hotel in the same or better service class as Sheraton holds as of the date of this Lease. In the event that such hotel ceases to be operated in the same or better service class as a Sheraton contemplated under this Lease (which, for purposes hereof, that parties agree will be a "full service" "3-star" or "4-star" hotel, as such terms are commonly used in the hotel industry as of the date of this Lease), then Lessor may, upon not less than one hundred and twenty (120) days' written notice, elect by written notice to terminate this Lease if Lessee fails to replace the Sheraton operating company with another hotel operating company operating full service hotel carrying not less than a "3-star" or "4-star" rating or its equivalent.
(iv) violate the prohibitions contained in the Five Seasons Ground Lease as set forth in Section 3.6(c) (collectively, the "Prohibited Uses"). Lessee shall, at Xxxxxx's sole cost and expense, procure any and all necessary permits, licenses, or other authorizations from time to time required by any Governmental Authority for the lawful conduct of its business on the Premises. To the extent reasonably necessary or required, Xxxxxx agrees to cooperate with Xxxxxx in obtaining such permits, licenses, or other authorizations.
| 6.3 | Lessee's Covenant Not to Compete. |
other project within such five (5) mile radius, as Xxxx as such member or principal owner of Lessee or any Guarantor under the Guaranty (or any of their respective Affiliates) is not an equity participant in such project or in any Person managing or investing in such project.
| 6.4 | Conformity with Legal Requirements. |
of Article 15 shall apply. Prior to the date of this Lease, Xxxxxx has received a determination letter from the U.S. Army Corps of Engineers to the effect that no part of the Premises is considered to be "adjacent wetlands" that are subject to the jurisdiction of the U.S. Army Corps of Engineers as presently defined under the U.S. Army Corps of Engineers applicable regulations or orders. Notwithstanding the foregoing, should the U.S. Army Corps of Engineers or any other Governmental Authority determines that any part of the Premises consists of wetlands subject to such Governmental Authority's jurisdiction, then Lessee shall be responsible for all associated wetlands mitigation or compliance costs, except such portion, if any, incurred by Lessee, if any, that are attributable to the mitigation of any such wetlands that are located within the right of way for Founder's Drive will be considered Off-Site Improvements, and if such work is not conducted by contractors engaged by Xxxxxx, then such costs reasonably and appropriately incurred shall be subject to reimbursement by Lessor to Lessee through credits against Reimbursable Expenses, if any, owed by Lessee to Lessor, provided Lessee advises Lessor of the obligation to effect such mitigation and first this gives Lessor the right to elect to perform such mitigation itself or to reimburse Lessee for such costs as incurred. If Lessor does not so elect to perform such mitigation, then Lessee must xxxx Xxxxxx for such costs as promptly as possible following Substantial Completion of such mitigation work. If Lessor effects the mitigation of any such wetlands located within the right of way of Founders Drive and as a part of such mitigation desires to utilize a portion of the Perimeter Open Space areas within Parcel SE-IB-3 or stormwater detention basins located on the Premises or Parcel SE-IB-3 as an area in which such mitigation will be effected, Lessee will cooperate with Lessor in designing such mitigation areas. Lessor will bear any incremental costs associated therewith, but shall not be responsible for any work or costs associated with any maintenance thereof after the initial installation and expiration of the first calendar year of any initial guarantee or warranty period required by the wetlands pennit.
repairs to the Project, interior and exterior, structural and non-structural, extraordinary as well as ordinary, foreseen as well as unforeseen, that are reasonably necessary or advisable in accordance with good standards of operation and maintenance applied by owners of properties comparable in class, age and quality to the Project that are located in the Chicago metropolitan area. For purposes of this Section 6.5, repairs shall include all replacements, renewals, alterations, additions and betterments necessary to maintain the good appearance and to prevent any physical deterioration of the Premises (including the Land) or the Project beyond ordinary wear and tear, including, without limitation, all repairs to the roof and exterior surfaces of the Buildings necessary to keep the Buildings free from leakage of rain or wind which might adversely affect the structural integrity of the Buildings or cause damage to the interior thereof. All repairs shall be at least equal in quality and class to the work and materials then in customary usage in premises comparable in class, age and use to the Premises (including the Land) and the Project.
| 6.6 | FF&E Reserve; FF&E Expenditures. |
| 6.9 | Compliance With Executive Order. |
(10) Business Day period shall be a Default under this Lease.
| (i) | is listed on any of the Lists; |
(10) Business Days following the date of the occurrence of the Lessor Triggering Event to remove all such Person from any interest in and executive officer and director positions within Lessor's Beneficiary. Failure to do so within such ten (I 0) Business Day period shall be a Default on the part of Lessor under this Lease.
ARTICLE7
Insurance
The insurance to be maintained by Lessee pursuant to Section 7. l{a) shall name those persons identified and in the manner provided for in Section 7.5 below, and shall also include (i) a so called "increased cost of construction" endorsement covering costs that may be incurred in connection with elements of rebuilding or reconstruction following a casualty required to comply with changes to building codes and other Governmental Requirements, (ii) a so-called
"demolition cost" endorsement covering costs of demolishing undamaged portions of any Building if required by applicable Governmental Requirements in order to repair damage to other portions of any Building or other Improvements resulting from a Casualty, and (iii) a so called "cost of clearing" endorsement covering cost of clearing debris and returning the Land to grade in the event the Building and other Improvements are not rebuilt after the occurrence of any Casualty. All insurance required under this Section 7.1 shall be issued by a carrier reasonable satisfactory to Lessor, which has received, during the current year, a rating of "good to superior financial security" according to one or more of the major rating bureaus (such as A.
M. Best, Standard & Poor's or Moody's) and, in the case of an A.M. Best Rating, a size category of at least VII.
Alterations, any Added Component or any Redevelopment Plan, separate policies, endorsements or riders covering liability for any special coverages required due to nature of any of the Permitted Uses then being conducted by Lessee or Full-Site Tenant or Tenant, such as: communicable diseases, swimming pool and health club operations, liquor liability, employment practices liability, false imprisonment, false arrest, discrimination, terrorism, loss of revenue due to a non-physical event, and such other coverages as are customarily or prudently obtained by operators of facilities similar to those constructed which are then being operated.
The foregoing policies of insurance shall specifically provide (or be so endorsed if necessary to provide) they are primary with respect to Xxxxxx's and Xxxxxx's Beneficiary's Protected Persons, but only with respect to any claim arising solely out of activities or occurrences relating to the Premises.
(10) years following the Substantial Completion Date of the Initial Project or the date of Substantial Completion of any work commenced at any time thereafter, whether in connection with the construction of an Added Component, any Changes or Alterations or any Redevelopment Plan. Such insurance will be for such amounts and coverages as shall be reasonable and customary for similar professionals engaged in similar activities in the Chicago metropolitan area.
endorsements, policies or the copies delivered to Lessor, or otherwise evidenced to the reasonable satisfaction of Lessor. In the event actual endorsements or policies are not available at such time, Lessee shall deliver binders or certificates upon which Lessor can legally rely evidencing such insurance within the time periods specified and shall deliver the endorsement or policies required as soon as practicable thereafter.
| 7.6 | Insurance During Construction. |
(2) constitutes a Major Change, or (3) involves the construction of any new Buildings or other Improvements as an Added Component or pursuant to an approved Redevelopment Plan, in all such cases, to maintain contractor's pollution liability insurance having limits of liability not more than the limits that are customary and reasonable for the Chicago metropolitan area as reasonably determined from time to time by Lessor and required by notice from Lessor to Lessee, but in no event less than $I,000,000 as the combined single limit per occurrence. Lessee shall cause all Contractors and subcontractors at any time engaged in the performance of any work on the Premises to maintain (x) worker's compensation insurance in an amount not less than the required statutory limits and including employer's liability insurance with limits of not less than $500,000 per occurrence; and (y) all other insurance customary for similar types of construction contracts (including commercial general liability insurance providing coverage equivalent to that provided under a standard ISO CG 00 01 07 98 form, or such other standard form containing similar coverages as shall be issued from time to time by the Insurance Service Organization or any successor organization, or an entity similar in function and purpose to the Insurance Service Organization if no successor organization exists), to cover bodily injury and property damage sustained by all potential claimants, including (but not limited to) all persons employed in connection with the work with respect to whom death or injury claims could be
asserted against Lessor, Xxxxxx's Beneficiary, Lessee or the Premises with limits of liability not more than the limits that are customary and reasonable for similar projects in the Chicago metropolitan area where the Contractor or subcontractor is performing a similar type of work, as reasonably determined from time to time by Lessor (but in no event less than $1,000,000 as the combined single limit per occurrence in the case of commercial general liability insurance unless, in the case of a subcontractor or a contractor performing work in connection with Tenant Finish Improvements, Lessor determines, promptly following a written request by Xxxxxx that includes the proposed lesser limits and a description of the nature of the work to be performed, that the size or nature of the subcontractor's work permits a lesser combined single limit per occurrence).
insurance, adjustment of loss and use of proceeds provisions substantially consistent with this Section 7.8 and Article 11 below that are approved by Lessor, which approval shall not be unreasonably withheld or delayed, and specifically permit Lessor to enforce such provisions directly against the Full-Site Tenant. In the case of any loss not exceeding ten percent (10%) of the Full Insurable Value of the Building or Buildings or other Improvements damaged, the proceeds of any applicable insurance, after the loss is so adjusted, shall be used in the Restoration of the portion of the Project so damaged in the manner required under Section 11.1, but may, if permitted by the First Leasehold Mortgagee, be paid directly to Lessee in order that Lessee may use such proceeds to effect Restoration of the portion of the Project so damaged in the manner required under Section 11.1. In all other cases the proceeds of any applicable insurance, after the loss is so adjusted, shall be (i) paid to or at the direction of the First Leasehold Mortgagee (but without changing or altering any obligation Lessee may have to rebuild or restore pursuant to Article 11 of this Lease), or (ii) if there is no such First Leasehold Mortgagee and if Restoration is required under Article 11, paid to a Proceeds Trustee for use in restoring the Premises, or (iii) if there is no such First Leasehold Mortgage and if Restoration is not required pursuant to Article 11, applied as provided in Section 11.S(b), or (iv) only if the Restoration is of Full-Site Pad Improvements owned by a Full-Site Tenant subleasing a Full-Site Pad, or Tenant Finish Improvements owned by a Tenant subleasing a space or Building within the Full-Site Pad and (or in the case of a Tenant subleasing a space or portion of a Building or Buildings) and is to be performed by such Full Site Tenant, and at the time of the Casualty such Full-Site Tenant meets the requirements for a Guaranty set out in Section 5.2(b) with respect to the Initial Project, and such Full-Site Tenant has agreed either in its Tenant Lease or in a separate document following the Casualty to perform the Restoration of its Full-Site Pad Improvements using the proceeds of any applicable insurance, paid to such Full-Site Tenant. In any case, the proceeds shall be deemed to be held in trust by Xxxxxx, the First Leasehold Mortgagee or the Proceeds Trustee or the Full-Site Tenant, as the case may be, to be applied or used in accordance with the provisions of Article 11. Adjustment of losses with respect to any Full-Site Pad Improvements owned by the Full-Site Tenant shall be pursuant to the terms of the Full-Site Tenant Lease approved by Lessor at the time the Final Plans and Specifications for such Full-Site Pad Improvements are approved, which approval shall not be unreasonably withheld or delayed, unless the Full-Site Tenant Lease provides, the provisions of this Lease control.
endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of said waiver. Notwithstanding the foregoing, the foregoing release and waiver of claims shall not be operative, nor shall the foregoing endorsements be required, in any case in which the effect of such release or waiver is to invalidate insurance coverage or the right of the insured to recover thereunder or increase the cost thereof (provided that in the case of increased cost the other party shall have the right, within ten (10) Days following notice from the party procuring such insurance, to pay such increased cost, thereby keeping such release or waiver in full force and effect), nor shall it be construed as waiving any rights for claims of indemnification or reimbursement against third parties or for deductible amounts where the damage or loss is caused by the act or negligence of Lessor, Xxxxxx's Beneficiary or Lessee.
0.XX Renegotiation; Disputes. In addition to the insurance required pursuant to Sections 7.1 and 7.2, Lessee shall also maintain at Lessee's own cost and expense, but for the mutual benefit of Lessor, Lessor's Beneficiary and Lessee, insurance against such other hazards, liabilities or potential claims and in such amounts as may be reasonably requested from time to time by Lessor and which are reasonable and customary for lessees engaged in similar activities in the Chicago Metropolitan area. However, all of the provisions of this Article 7 relating to the insurance required to be provided by Lessee shall be subject to review and redetermination from time to time based on circumstances and changes in the insurance industry, customs and availability of insurance for ground lessees of similar projects and premium costs or the Tenants and the nature of their respective businesses, and depending on the identity and financial wherewithal of a Tenant. Lessor and Xxxxxx shall negotiate in good faith from time to time to so review and redetermine the requirements of this Article 7 in light of changing practices in the insurance industry, customarily available coverages, costs and the objectives of Lessor and Lessee. If the parties cannot reach agreement with respect to insurance requirements after such review and renegotiation, such disputes shall be determined by mediation and arbitration pursuant to Article 18, provided that the mediator, arbitrator or arbitrators selected shall be an individual or individuals experienced in interpreting, settling, mediating or arbitrating insurance policy or coverage disputes, and provided further that disputes with respect to the Full Insurable Value of the Buildings or other Improvements shall be determined pursuant to Article 19.
ARTICLES
| (i) | depositing with Lessor, or, if the Security is more than |
$I 00,000.00, a Proceeds Trustee, Security in an amount equal to one hundred ten percent (110%) of the total of (a) the amount of the lien, (b) all interest and penalties payable in connection therewith, and (c) all charges that may or might be assessed against or become a charge on the Premises, the Buildings or other Improvements, or any part thereof as a result of such lien; or
If Lessee shall fail to procure and deliver to Lessor a full and complete cancellation and discharge of any such lien, or to deposit with Lessor or a Proceeds Trustee the required form of Security in the amount so specified, in any case, within a time period expiring on the earlier of
(x) ninety (90) Days after written notice from Lessor demanding such Security or (y) fifteen (15) Days after the date the lien claimant files a proceeding to foreclose such lien, Lessor may, but shall not be required to, discharge or remove such lien. The amount so paid, together with all costs or expenses incurred by Lessor in connection therewith, shall be deemed Additional Rent payable by Lessee hereunder and shall become due and payable by Lessee immediately after the same shall have been paid by Lessor and notice thereof shall have been given to Lessee, and shall bear interest at the Lease Interest Rate from the date of such payment by Lessor until the date when paid by Lessee; provided that Lessor may not so discharge or remove any such lien nor shall an Event of Default be deemed to have occurred under this Section 8.2 if Lessee has deposited the required form of Security in the required amount and is in good faith contesting the same in the same manner and subject to the terms and conditions as are provided in Sections 4.5 and 4.6 with respect to Xxxxxx's right to contest Impositions and Xxxxxx's joinder in any such proceeding as if such provisions were repeated in this Section 8.2.
ARTICLE9
Assignments, Subleases, Mortgages and Sales
| 9.I | IAssignment by Xxxxxx. |
interest holder, one or more other Persons reasonably satisfactory to the Society as outside investors in the Lessee without being deemed to be in violation of the non-assignment provisions in this Section 9.J(a); provided the managing member or members of Lessee (if Lessee is a limited liability company), the general partner or partner (if Lessee is a partnership), or the majority interest holders in any other Lessee remain the same, Lessee shall give the Lessor's Committee at least ten (10) days' prior written notice of the addition of and reasonable information regarding any such additional investor in the ground lessee.
estate hereby created any and all Buildings and other Improvements then existing on the Premises and owned by Lessee under the terms of this Lease shall be transferred or conveyed to the same transferee or assignee.
(15) Business Days prior to the proposed effective date of any proposed transfer or assignment and within said fifteen (15) Business Day period Lessor shall have reasonably determined that the proposed assignee or transferee has a character and reputation that does not violate the CBIS Principles then in effect and either is in the business of owning and managing real estate of a nature substantially equivalent to the Project, or has the capability, including the financial capability, to retain the services of a property manager experienced in managing real estate of a nature substantially equivalent to the Project, but for purposes of this clause (ii), Xxxxxx's failure to provide notice within said fifteen (I 5) Business Day period shall be deemed a determination by Lessor that the proposed assignee or transferee has a character, reputation and capabilities meeting the foregoing requirements;
to Lessor, at Xxxxxx's expense, (x) ·the results of an assessment f the environmental conditions of the Premises and the Project conducted by a professional engaged in the business of providing such assessments (any such environmental assessment, or the results of such assessment, being referred to herein as an "Environmental Report"), which Environmental Report shall be dated not more than the sixty (60) Days prior to the proposed effective date of any such transfer or assignment, and shall be prepared by a firm reasonably satisfactory to Lessor confirming to Lessor's reasonable satisfaction (I) that the Premises and the Project are free from contamination by Hazardous Substances and other conditions or circumstances that would constitute a violation of Environmental Laws (other than Pre-Existing Environmental Conditions) or would otherwise obligate Lessee or the Permitted Assignee, as the case may be, to perform any Remediation pursuant to Article 15, and (2) that no Environmental Event has occurred or exists that has not previously been remediated in accordance with all Environmental Laws or the requirements of any Governmental Authority, or (y) a guaranty or other form of personal undertaking ("Environmental Guaranty") from the proposed assignee or transferee or if Lessor reasonably determines that the proposed assignee or transferee does not have sufficient financial resources adequately to assume or perform the Environmental Obligations, then, from a party or parties (such party or parties being herein referred to as an "Environmental Guarantor") other than the proposed assignee or transferee which Lessor does determine has sufficient financial resources to secure performance of the Environmental Obligations. If any Leasehold Mortgagee having a lien of not less than twenty-five percent (25%) of the Full Insurable Value of the Buildings which has consented to any such assignment or transfer subject to or with an assumption of the obligations under its Leasehold Mortgage has required such an Environmental Guaranty, then for purposes of the foregoing provision, an Environmental Guarantor satisfactory to any Leasehold Mortgagee shall be accepted by and deemed reasonably satisfactory to Lessor, provided such Environmental Guarantor delivers an Environmental Guaranty to Lessor. The Environmental Report shall be at the level of so-called "Phase I" assessment unless such assessment recommends additional testing or discloses the existence of an Environmental Event (other than a Pre-Existing Environmental Condition) that has not previously been remediated, and in such event, before the Environmental Report shall be deemed to satisfy the requirements of this Section 9.l{c)(iv), Lessee or the Permitted Assignee, as the case may be, shall provide such additional testing or reports as to the nature, extent and results of any Remediation efforts undertaken as are reasonably required to evidence to Lessor's reasonable satisfaction that the requirements of clauses (x)(l) and (x)(2) above have been met.
Except as otherwise provided in Sections 9.l(a), 9.l(b) or 9.l(c), (x) any assignment, transfer or other conveyance of this Lease or Lessee's or the Permitted Assignee's leasehold estate in the Premises not meeting the foregoing requirements of this Section 9.l(c) shall require the prior written consent of Lessor and is void without such consent, and (y) Lessee may bring in one or more other parties reasonably satisfactory to Lessor as outside investors in Lessee without being deemed to be in violation of the non-assignment provisions in this Section 9.l(a); provided, Lessee shall give the Lessor's Committees at least ten (JO) days' prior written notice of the addition of and reasonable information regarding any such additional investor in the Lessee and Xxxxxxx X. Xxxx or Xxxxxx X. Xxxxxxx (or both of them) shall remain controlling members or principals of Lessee.
such subsequent transfer agrees to Substantially Complete the Initial Project and provides a new Guaranty with respect thereto in the same form attached hereto as Exhibit G.
| 9.2 | Full-Site Tenant Lease and Tenant Leases. |
Tenant is informed and understands that Landlord is the lessee under a lease of the land, which lease requires among other things, that certain provisions be contained in Landlord's lease with Tenant. Accordingly, the provisions of this paragraph are a material part of this Lease and may not be modified or altered by this Lease or by Xxxxxx's or Xxxxxxxx's course of conduct hereunder. Tenant shall not pay and Landlord shall not accept any payment of rent sooner than three months in advance of when the same shall be due, and Tenant shall not pay and Landlord shall not accept any rent based on a percentage, :fraction or similar measure of the net income or net profits of Tenant, it being expressly agreed that any rent based on a percentage, fraction or similar measure shall be based solely on gross sales, gross revenues or gross income. Tenant shall permit the owner of the land and its authorized representatives, subject to Xxxxxx's rights hereunder, to enter the premises at all reasonable times and upon prior reasonable notice for the purpose of inspecting the same.
Tenant shall not use the name "Techny" or "Society of the Divine Word" or "Divine Word Techny Community" or any words or phrases similar thereto or suggesting any religious affiliation or other affiliation with the lessor under Landlord's lease of the land (except in connection with Xxxxxx's street address) without the prior written consent of the lessor under Landlord's lease of the land.·
From time to time Tenant, on at least ten (10) days' prior written request by Landlord, will deliver to Landlord a statement in writing certifying (i) that this Lease is unmodified and in full force and effect (or if there shall have been modifications, that this Lease is in full force and effect as n;iodified and stating the modifications), (ii) the dates to which the rent and other charges have been paid, and (iii) whether or not the Landlord is in default in performance of any covenant, agreement or condition contained in this Lease and, if so, specifying each such default of which Tenant may have knowledge, and (iv) such other matters as may reasonably be requested by Xxxxxxxx.
Finally, each Tenant Lease shall contain such other provisions as may be required pursuant to this Lease, including, without limitation, provisions meeting the applicable requirements of Article 5, Article 7, Article 11.2 (in the case of Full-Site Tenant), Article 12 and Section 16.1.
| (ii) | With respect to (x) any Tenant Lease having an initial term of five |
(5) years or more (including any extensions and renewal options that are available to such Tenant, regardless of whether exercised), or (y) any Tenant Lease for a Full-Site Tenant Pad, Lessor will, from time to time, upon the request of Lessee, accompanied by payment of an amount estimated by Lessor to be sufficient to cover Lessor's administrative expenses in reviewing such Tenant Lease and preparing and negotiating such Non Disturbance Agreement, undertake to determine whether the rent to be paid by such Tenant under such Tenant Lease is, in the light of other existing Tenant Leases of space within any Buildings or Tenant Leases of all of the Buildings on the Land, and other circumstances affecting the future maintenance and operation of all Buildings, sufficient to assure continued payment of the Base Rent and Additional Rent required to be paid under this Lease, as well as the maintenance and operation of all Buildings in a manner substantially similar to the maintenance and operation of other buildings that are similar to the Buildings in class and quality in the general locality of the Buildings, and whether approval of such Tenant Lease will risk imposition of any financial or managerial burdens of a substantial nature or expense upon Lessor (including any obligations that might result in the imposition of unrelated business income taxes). If such Tenant Lease,
with such revisions or modifications as may be required by Lessor to meet the tests set forth in the preceding sentence, is satisfactory to Lessor, then Lessor will enter into a Non-Disturbance Agreement with the Tenant under such Tenant Lease, in the same form as provided in Section 9.2(b)(i) above, conditioned upon such Tenant or Lessee reimbursing Lessor for any such administrative expenses actually incurred in excess of the initial payment.
(ii) a description of the space, Building or Full-Site Pad leased to such Tenant, (iii) the annual rental payable by each such Tenant thereunder, and (iv) such other pertinent data and information with respect to each Tenant Lease as Lessor may reasonably request. In addition, upon the request of Lessor, Lessee shall furnish to Lessor true and correct copies of such Tenant Leases from time to time in effect.
| 9.3 | Mortgage by Lessee. |
contemplated in clause (ii) of Section 5.2{b) and Lessee has provided a Guaranty in the form attached hereto as Exhibit G from a Guarantor approved by Lessor, or unless such Full-Site Tenant Lease is terminated by reason of a default on the part of the Full-Site Tenant prior to the Substantial Completion of the Initial Project.
| 9.5 | Sale of Lessor's Estate; Xxxxxx's Right of First Offer. |
offering Xxxxxx's Estate to any third party. The Offer Notice shall state the price and all other terms and conditions desired by Lessor in connection with such proposed sale. Lessee shall have the right, to be exercised by written notice to Lessor ("Exercise Notice") within sixty (60) Days after the date of receipt of Lessor's Offer Notice ("Exercise Period"), to purchase Lessor's Estate at the same price and upon the terms and conditions as those set forth in the Offer Notice or upon such other terms proposed by Lessee within the Exercise Period and agreed to by Lessor in its sole discretion, except that Lessor shall not be obligated to provide a survey of the Premises and Project to Lessee, Lessee shall pay for its own title insurance policy and all endorsements thereto issued in connection with such sale, and the conveyance shall be subject to all of the Permitted Exceptions. Promptly following receipt by Lessor of Xxxxxx's Exercise Notice, Lessee and Lessor shall enter into an agreement for the sale of Lessor's Interest to Lessee on such terms, and shall close on the sale within ninety (90) days after the date of Xxxxxx's Exercise Notice.
will confirm in writing that it has waived its right to purchase Lessor's Estate pursuant to such Offer Notice or Modified Offer Notice.
ARTICLE 10
Condemnation
I 0.2Partial Condemnation.
acceptable to Lessor and Lessee, then this Lease shall not terminate but shall continue in full force and effect for the remainder of the stated Term, and Xxxxxx shall continue to perform and observe all of the terms, covenants, conditions, agreements and obligations of Lessee to be performed under this Lease as though such taking under had not occurred, subject to the provisions of this Section I 0.2. Base Rent shall xxxxx equitably in proportion to the percentage diminution, if any, in the Appraised Value of the portion of the Premises and the Project so taken as of the date title is vested in the condemning Governmental Authority under the Condemnation Proceeding and such reduced Base Rent shall become the Base Rent for all purposes of this Lease from and after such date, subject to adjustment from that date forward under the provisions of Article 3. If the parties are unable to agree on the Appraised Value of the portion of the Premises and Project so taken within sixty (60) Days of the notice of the Condemnation Proceedings, then such Appraised Value shall be determined in the manner set forth in Article 19. Lessee shall, at its sole cost and expense, but with the right to use the proceeds from the Condemnation Proceeding, promptly (subject to Unavoidable Delays) complete the Restoration of that portion of the Premises and the Project not so taken unless the parties have agreed to a Redevelopment Plan, in which case the provisions of Section 12.5 shall apply, or unless Lessee proposes to Lessor and Lessor agrees, in its sole discretion, that Lessee may defer any portion of such Restoration, including rebuilding of any Building taken in its entirety until a later time, in which case such Restoration shall, for all purposes hereof be treated as a partial Redevelopment Plan to be submitted at the time Lessee and Lessor then agree Lessee may or must propose such partial Redevelopment Plan. Notwithstanding the foregoing provisions with respect to a deferred Restoration and partial Redevelopment Plan, Lessee shall nevertheless be required to restore any disturbed portions of the afforested areas, parking lots or other landscaped areas within the remaining portions of the Land or any partially taken Building or Buildings so as to present a completed, attractive appearance pursuant to plans approved by Lessor as part of its approval of the deferred Restoration. Before Lessee shall let any contracts for, or commence the work of, such Restoration, and during the course of such Restoration, Lessee shall comply with the applicable provisions of Article 12.
| 10.3 | Condemnation for Limited Time. |
the remainder of the stated Term, and Xxxxxx shall continue to perform and observe all of the terms, covenants, conditions, agreements and obligations of Lessee to be performed under this Lease as though such taking had not occurred, except only to the extent that it may be prevented from doing so by reason of such taking. Xxxxxx, however, shall in no event be excused from the payment of Rent and all other sums and charges required to be paid by Lessee under this Lease.
ARTICLE 11
Damage and Restoration
be damaged or destroyed by a Casualty (regardless of the amount of the Xxxx or the existence of insurance to cover such Xxxx), or if fifty percent (50%) or more of the Full Insurable Value of any Building (exclusive of any Full-Site Pad Improvements owned by the Full-Site Tenant) shall be damaged or destroyed by a Casualty and the proceeds of any applicable insurance, together with the deductible that is to be provided by Lessee or such Full-Site Tenant as provided herein, shall be sufficient to pay the costs of Restoration, as reasonably estimated by Lessee or such Full-Site Tenant as promptly as practicable after the date of the Casualty, Lessee or such Full-Site Tenant shall cause the Restoration of such Building and any other portion of the Premises destroyed by such Casualty as promptly as is reasonably practicable. Notwithstanding the foregoing, in the event the Premises or a Building is damaged or destroyed by a Casualty and Lessee is obligated to perform Restoration, Lessee may propose to Lessor for Lessor's approval, which approval may be withheld in Lessor's sole discretion, either (i) to construct or reconstruct a different Building than the one that existed prior to the Casualty, or (ii) to defer any portion of such Restoration, including rebuilding of any Building that is completely destroyed, until a later time, in which case such Restoration shall, for all purposes hereof be treated as a partial Redevelopment Plan to be submitted at the time Lessee and Lessor then agree Lessee may or must propose such partial Redevelopment Plan. If Lessee selects and Lessor approves the option under clause (ii) of the preceding sentence, then Lessee shall nevertheless be required to continue to pay the full amount of Base Rent without any abatement, and to restore any disturbed portions of the Perimeter Open Space, parking lots or other Parcels SE-IB-2/SE-IB-3 Common Area Improvements within the remaining portions of the Land (except to the extent such restoration obligation is the responsibility of the Sub-Association under the declaration creating the Parcels SE-IB-2/XX-XX-3 Sub Association) or any partially destroyed Building or Buildings so as to present a completed, attractive appearance pursuant to plans approved by Lessor as part of its approval of the deferred Restoration. Before Lessee shall let any contracts for, or commence the work of, such Restoration, and during the course of such Restoration, Lessee shall comply with the applicable provisions of Article 12.
concurrently with the delivery of such Termination Notice, (i) any and all unpaid Rent due Lessor under Article 3 of this Lease, and (ii) all other amounts required to cure any other unpaid or unreimbursed monetary obligations of Lessee under this Lease.
Section l l.2(a). each Full-Site Tenant's Tenant Lease may provide that if fifty percent (50%) or more of the Gross Square Feet of the Building or Buildings owned by a Full-Site Tenant shall be damaged or destroyed by a Casualty caused by reasons other than the willful misconduct of such Full-Site Tenant, regardless of whether any applicable insurance proceeds (together with any applicable deductibles that are to be provided by the Full-Site Tenant as provided therein) are sufficient to cover all costs of the Restoration, then so long as such Full-Site Tenant is not in default under its Tenant Lease with respect to its obligation to maintain insurance as required pursuant to such Full-Site Tenant's Tenant Lease, such Full-Site Tenant shall have the right to terminate its Tenant Lease by giving a notice to such effect to Lessor and Lessee within fifteen
(15) Days after such Full-Site Tenant makes its determination not to incur the cost of the Restoration. In addition, a Full-Site Tenant's Tenant Lease may provide that Lessee shall have the right to terminate such Tenant Lease if any Building owned by a Full-Site Tenant shall be damaged or destroyed by a Casualty at any time during the last three (3) years of the term of such Tenant Lease. In either case, the Termination Notice shall not become effective to terminate the Full-Site Tenant's Tenant Lease (i) unless such Full-Site Tenant uses the proceeds of any insurance to pay the cost to clear the Full-Site Pad and remove all debris as provided in Section I l.3(b) below, and (ii) Lessee also provides to Lessor a notice that (x) such Full-Site Tenant's Tenant Lease permits such an election to terminate in lieu of Restoration, and (y) such Full-Site Tenant is not in default of any monetary obligations under its Tenant Lease or, if it is in default, specifying the nature of such default in which case such Full-Site Tenant must also uses the proceeds of any insurance to pay any amounts due Lessee on account of all of its uncured monetary defaults under its Tenant Lease before the Full-Site Tenant's or Lessee's Termination Notice shall become effective. Once the Full-Site Tenant has completed the work to clear the Full-Site Pad and remove all debris as provided in Section I1.3(b), Lessor shall no longer have any interest in the remaining insurance proceeds. Lessee's Termination Notice shall be given within fifteen (15) Days after delivery of such Full-Site Tenant's Termination Notice. In no event shall any portion of Lessee's Base Rent or Additional Rent payable under this Lease be abated on account of any such election to terminate its Tenant Lease by a Full-Site Tenant. Any new Building Lessee thereafter desires to construct or to permit any new Full-Site Tenant to construct on such Full-Site Pad at any time thereafter shall be treated as a partial Redevelopment Plan to be submitted at the time Lessee and Lessor then agree Lessee may or must propose such partial Redevelopment Plan, but if such proposal is for construction by a new Full-Site Tenant, then the provisions of Article 12 relating to Submittals for Full-Site Tenants shall apply to such partial Redevelopment Plan. Notwithstanding the foregoing, if(!) the Full-Site Tenant's Tenant Lease does not permit the Full-Site Tenant to terminate its Tenant Lease on account of such Casualty, Lessee shall not acquiesce or consent to the termination of such Tenant Lease on account of such Casualty without (x) first advising Lessor of Xxxxxx's intention with respect to the construction of a new Full-Site Tenant Building or intent to enter into a new Full-Site Tenant Lease with a similar or different Full-Site Tenant and its rationale for such decision, (y) requiring such Full-Site Tenant to comply with the provisions of clause (i) and (ii) above and (z) Lessee also complies with the requirements of clause above; and (2) if such Full-Site Tenant's permitted election to terminate its Tenant Lease or Lessee's intention to permit such termination by agreement will become effective at a time when there is at least one other vacant Pad or existing Pad Improvements available for lease or rebuilding, then Lessee shall be obligated to propose a new Redevelopment Plan to Lessor within three (3) months following the voluntary termination of such Pad Tenant's Tenant Lease, it being understood and agreed by Lessee that the Base Rent
payable to Lessor under this Lease is dependant upon the continued existence and leasing or re leasing of the Project or Pads in a timely fashion so that the Pad Improvements may be constructed or reconstructed and occupied by Tenants as rapidly as possible following their damage or destruction.
| 11.3 | Damage Allowing Lessee an Option to Terminate; Clearing of Premises or |
| (a) | Conditions to Termination by Xxxxxx. If following a Casualty that occurs: |
terminate its Tenant Lease, then within seventy-five (75) Days of the Termination Date, Tenant or such Full-Site Tenant shall clear the Full-Site Pad and remove all debris. Regardless of whether the Full-Site Tenant is obligated to perform such removal work under its Tenant Lease, Lessee shall nevertheless have the duty to clear the Premises and remove all debris as provided herein as promptly as practicable if such Full-Site Tenant fails to do so within such seventy-five
(75) Day period, and in all events within one-hundred twenty (120) Days of the Termination Date. In any event, the duty to clear the Premises and remove all debris includes, but is not limited to, the duties to demolish and remove the Building and other Improvements on the Full Site Pad, including all basements and foundations, to fill all excavations, to return the surface to grade, and to leave the Full-Site Pad safe and free from debris and hazards unless a lesser degree ofremoval is approved by Lessor in its sole discretion.
| 11.5 | Application oflnsurance Proceeds. |
pursuant to Section l l.2 plus interest at the Lease Interest Rate from the date such funds were so expended or deposited).
Leasehold Mortgagee), but without regard to the termination of this Lease. The values of Lessor's Estate and Xxxxxx's leasehold estate shall be as agreed upon by the parties, or in the absence of such agreement, shall be detennined by appraisal pursuant to the provisions of Article 19. Notwithstanding the foregoing, as of the date the respective shares of Lessor and Lessee in any such remaining proceeds are determined, if Xxxxxx has failed to pay any of the amounts due Lessor pursuant to Sections l l .2(a} or Section 11.3/a), or has failed to remove all
debris and restore the Premises as required under Section l 1.2(c} or l.l), then Lessor shall be
entitled to a payment of all such amounts then remaining due Lessor or reasonably estimated by Lessor to pay for the cost of removal of the debris and restoration of the Premises from out of Xxxxxx's share of such remaining proceeds before any payments are made to Lessee.
ARTICLE 12
Changes and Alterations
12.lConditions Governing Changes and Alterations.
any Restoration required or permitted under Article 10 or Article 11 and any Tenant Finish Improvements not included within the Work to be completed pursuant to Section 5.2), structural or otherwise, to the Buildings or other Improvements from time to time located on the Premises,
$25,000 deposit to offset Lessor's Reimbursable Expenses associated with obtaining necessary approvals for such Added Component or Redevelopment Plan from all Governmental Authorities having jurisdiction; provided however, such $25,000 deposit shall not limit the amount of Lessor's Reimbursable Expenses, which shall be paid by Lessee pursuant to Sections 3.5 and 12.3(b) of this Lease.
including without limitation, any permits to construct any modifications or enhancements to the intersections and drives providing access to the Premises from Founders Drive required by IDOT pursuant to its initial permit for the Off-Site Improvements to be constructed in connection with the Initial Project, and Lessor agrees to join in the application for such permits or authorizations whenever such action is necessary.
conditioned upon payment by or on behalf of Xxxxxx (or such Tenant) in full in accordance with any construction contract entered into for such work; or
been completed in accordance with the Final Plans and Specifications approved (if and to the extent required) under Section 12.l(a)(iii); (2) payment is due and payable to the Contractors, subcontractors, material suppliers, laborers, engineers, architects or other persons, firms or corporations rendering services or materials in connection with any such work, or that such payments will reimburse Lessee (or such Tenant) for expenditures made by Lessee (or such Tenant) in connection with any such work; and (3) the remaining funds so deposited will be sufficient upon the completion of such work to pay for the same in full;
Lessor, the Proceeds Trustee or the title insurance company, as the case may be, shall not be required to pay any amounts out of the funds held pursuant to the Escrow Agreement at any time when the Premises, the Buildings, the other Improvements or Lessor's Estate shall be encumbered with any such lien not bonded or otherwise secured to the reasonable satisfaction of Lessor. Upon submission of proof satisfactory to Lessor that such work has been paid for and completed, the balance of the funds then held pursuant to the Escrow Agreement
· identified above shall, except as otherwise provided in Section 13.3, be paid to Lessee.
necessary for the safety or preservation of the adjoining property and the buildings and structures thereon and to prevent any claims or liens against Lessor or Lessor's Estate.
Full-Site Tenant's Building for any Major Change or for any Redevelopment Plan, as the case may be, as is reasonably required in order for Lessor's Committees to evaluate such proposed Guarantor, and such other information as Lessor requests; and
None of the foregoing Submittals shall be deemed to have been submitted to the Society of the Divine Word or Lessor's Committees for approval unless such Submittal is accompanied by a written request for approval. Only Preliminary Plans or Final Plans and Specifications submitted to Lessor with a written request for approval will be submitted to Lessor's Committees for approval. All other drafts or proposed Preliminary Plans or proposed Final Plans and Specifications delivered to Xxxxxx's consultants, attorneys or agents shall be deemed delivered for purposes of comment and preliminary review only. Preliminary Plans detailing typical floor layouts, space allocations and general categories of use of space, Building mechanical, electrical or other systems or other interior Tenant Finish Improvements, as well as any minor exterior change or alterations (such as the location of entrance doorways or glass door mounted lettering type signage, or any similar items made a part of any Full-Site Pad Improvements) may be submitted to Lessor from time to time when prepared for informational purposes, but shall not be subject to Lessor's approval unless required pursuant to Section 5.He), Section 12.l(a)(iv) or
12.3. Lessor shall approve any Final Plans and Specifications for any portion of any Major Change or any approved Redevelopment Plan, as the case may be, submitted by Lessee pursuant to this Article 12, provided that they are, in Lessor's reasonable judgment, substantially consistent with and the logical extension of the previously approved Preliminary Plans for any such Major Change or Redevelopment Plan.
excess of the deposit or deposits made for Reimbursable Expenses as provided elsewhere in this Lease.
Authorities as a condition to constructing the Improvements to be included in any Added Component, any Change or Alteration or any Redevelopment Plan in accordance with the Approved Plans therefor, other than those Off-Site Improvements Lessor has agreed to construct as provided in Section 5.l(c).
;and (3) such information on the identity and financial capability of Xxxxxx's proposed Guarantor (of the Substantial Completion of any portion of the Project not covered by the Guaranty delivered concurrently with this Lease) as is reasonably required in order for Lessor to evaluate such proposed Guarantor, and such other information as Lessor requests. Lessee further acknowledges and agrees that Lessor (w) may approve, conditionally approve, or disapprove any Preliminary Plans, (x) niay approve, conditionally approve or disapprove any changes to the previously approved Preliminary Plans as reflected in the Proposed Final Plans and Specifications for the Hotel Project or other proposed Final Plans and Specifications that are submitted to Lessor with respect to any missing elements of the Proposed Final Plans and Specifications, any Added Component, or any Changes and Alterations thereto or any proposed Redevelopment Plan (but shall not disapprove of such changes if they are, in Lessor's reasonable judgment, substantially consistent with and the logical extension of the previously approved Proposed Final Plans and Specifications for the Hotel Project or other Preliminary Plans, or, in the case of the Proposed Final Plans and Specifications for the Hotel Project, reasonably reflect changes or modifications required pursuant to Exhibit f). Any notice of approval or conditional approval shall be in writing and, in the case of a notice of disapproval or conditional approval shall include a reasonably detailed explanation of the reasons for such disapproval or conditional approval.
(10) Business Days in which to respond after receipt of Xxxxxx's request for approval of such Preliminary Plans, which request shall contain such Preliminary Plans and a written request for approval thereof, together with copies of all relevant materials for which
Lessor's approval is sought. If Xxxxxx has not responded to Xxxxxx's request either with a notice of approval or disapproval stating why Xxxxxx does not approve such Preliminary Plans, then after the expiration of such ten (I 0) Business Day period, such Preliminary Plans shall be deemed disapproved. If Lessor responds with comments on the proposed Preliminary Plans (either by disapproving them or conditionally approving them), Lessee shall revise such Preliminary Plans to address Lessor's concerns and resubmit them to Lessor, or if Lessor failed to respond to the request for approval of the Preliminary Plans, Lessee shall then have the right to submit a Second Notice containing all of the same materials as were included in the first notice to Lessor, in either case, marked with the words "SECOND NOTICE" on the envelope, in capital letters and in a type size of at least Times New Roman 14 or Arial 14 font, and at the top of the first page of such notice stating "DEEMED APPROVAL NOTICE, and which states in the body of the notice in all capital letters the following: "IF NO RESPONSE IS RECEIVED WITHIN TEN (10) BUSINESS DAYS, THIS REQUEST SHALL BE DEEMED APPROVED UNDER
SECTION 12.2(d)(ii) OF THE GROUND LEASE" ("Second Preliminary Plan Notice"), and attempt to telephone Lessor to obtain a response to the Second Preliminary Plan Notice. If Xxxxxx has not responded to Xxxxxx's second request either with a notice of approval or disapproval stating why Lessor does not consent within ten (I 0) Business Days following Xxxxxx's receipt of the Second Preliminary Plan Notice then Xxxxxx's Preliminary Plans shall be deemed approved. In the case of a second submittal of revised Preliminary Plans responding to Xxxxxx's notice of disapproval or conditional approval, Lessor will not withhold its approval with the Second Preliminary Plan Notice if the changes made were responsive to and in keeping with Xxxxxx's specific comments and there are no other material changes from the initial proposed Preliminary Plans.
| (A) | such Final Plans and Specifications or Changes and Modifications |
(I) are aesthetically consistent with and a logical extension of the previously approved Initial Project Submittals, any subsequent Submittals, Redevelopment Submittals or Final Plans and Specifications and incorporate any elements or changes thereto included in or required under any prior conditional approval; (2) are in conformance with the standards set forth in the Village of Northbrook Zoning Code adopted on November 22, 1988 by Ordinance No. 88-2, as amended by the Techny Overlay District provisions adopted pursuant to the Annexation Agreement ("Zoning Code"); (3) in the case of proposed Changes and Alterations or Redevelopment Submittals, are complementary to the then existing or planned developments on the remainder of Parcel SE-1 or any neighboring properties; and
has executed and delivered the Guaranty, meeting the applicable requirements of clause (3) of said Section 12.l(a)(v).
DEEMED APPROVED UNDER SECTION 12.l(d)(v) OF THE GROUND LEASE"
("Second Final Plan Notice"), and attempt to call Lessor to obtain a response to the Second Final Plan Notice. If Xxxxxx has not responded to Xxxxxx's second request either with a notice of approval or disapproval stating why Xxxxxx does not consent within five
(5) Business Days following Xxxxxx's receipt of the Second Final Plan Notice then Xxxxxx's proposed Final Plans and Specifications shall be deemed approved. Notwithstanding the foregoing, change orders during construction to any Approved Plans, if they require Lessor's consent, shall be deemed approved if Lessor fails to disapprove or conditionally approve such change order within ten (10) Business Days after Xxxxxx's request for approval of such change order, which request shall identify the specific changes to the Approved Plans covered by such change order and a written request for approval thereof, together with copies of all relevant materials for which Lessor's approval is sought.
Lessee fails to obtain the necessary amendment to the Techny Overlay District provisions of the Village's Zoning Code or any other approvals required to permit construction of any Added Component the Preliminary Plans for which have been previously approved by Lessor but which requires a zoning change, or if Lessee, at its sole discretion, elects not to pursue the required approvals to permit it to construct any such Added Component, Lessee may again submit new Preliminary Plans to Lessor for approval and following approval thereof by Lessor, Final Plans and Specifications in accordance with the Submittal process set forth in Section 12.2 for a modified Added Component.
Notwithstanding the provisions of Section 5.1 or Section 12.2, Lessor shall not unreasonably withhold or delay approval of Xxxxxx's proposed Final Plans and Specifications for all such Buildings and other Improvements included in each Added Component to the extent they are in Lessor's reasonable judgment consistent with and the logical extension of the previously approved Preliminary Plans for such Improvements in all material respects and otherwise meet the requirements of this Lease, and if Lessee or a Full-Site Tenant, as the case may be, has not provided one of the other forms of security set forth in Section 12.l{a)(v), Lessee or the Full-Site Pad Tenant has provided a Guaranty from a Guarantor satisfactory to Lessor. Lessor shall provide Lessee with notice of approval or disapproval of any such proposed Final Plans and Specifications or any proposed Guarantor within ten (10) Business Days of receipt thereof accompanied by, in the case of disapproval, Xxxxxx's detailed explanation of the reasons therefor as provided in Section 12.2(d). Notwithstanding and in addition to the foregoing (and any provisions of Section 12.2 above with respect to Lessor's approval of any proposed Final Plans and Specifications), Lessor may withhold its consent in its sole and absolute discretion if any of the Final Plans and Specifications disclose any material change to the nature, size or character or exterior appearance of Buildings or other Improvements from those contemplated by the Preliminary Plans previously approved by Lessor, or if any proposed Guarantor previously approved by Lessor no longer meets the applicable requirements for such Guarantor set out in this Lease.
| 12.5 | Redevelopment of the Premises. |
following Xxxxxx's approval or conditional approval of the Redevelopment Plan and as a condition to Xxxxxx's commencement of any work in connection with the Redevelopment Plan. All other drafts or proposed Redevelopment Plans delivered to Lessor's Committees, attorneys or agents, shall be deemed delivered for purposes of comment and preliminary review only.
judgment, consistent with and a logical extension of the previously approved Redevelopment Submittal or Redevelopment Plan in all material respects. In constructing any new Buildings or other Improvements, Lessee shall at all times comply with the terms and provisions of this Lease including, without limitation, the conditions set forth in Section 5.2, as if in said provisions all references to "Buildings" and "Improvements" or "Initial Project" instead referred to the new Buildings and other Improvements that are to be constructed pursuant to the Redevelopment Plan.
| 12.7 | Applicationto Work.Except as otherwisespecifically providedm |
Section 5.3(a)(ii), the provisions of this Article 12 shall not apply to the Work.
ARTICLE 13
Deposited Funds; Interest
or .Ll., such funds shall be held by Lessor, the Proceeds Trustee or the title insurance company, as the case may be, in accordance with the applicable Article under this Lease. The fees and expenses of the Proceeds Trustee or title insurance company shall be paid by Lessee or deducted from the sums held by such Proceeds Trustee or title insurance company.
Lessee's cure of each and every such Default, Lessor shall be entitled to apply or demand that the Proceeds Trustee or title insurance company, as the case may be, apply such funds to cure any unremedied Defaults for which the applicable notice and cure period has expired without cure, and to compensate Lessor for any loss, cost, damage or expense (including reasonable attorneys' fees) it sustains as a result of any such unremedied Defaults, with the balance of such funds, if any, to be paid to Lessee as required pursuant to this Lease. All funds so applied or permitted to be applied by Lessor, the Proceeds Trustee or the title insurance company, as the case may be, shall become the absolute property of and shall be paid to Lessor upon demand and, in the case of the Proceeds Trustee or the title insurance company, such Proceeds Trustee or title insurance company shall thereupon be relieved of any further responsibility or liability therefor.
ARTICLE 14
Indemnification by Xxxxxx and Lessee
| 14.1 | Indemnification. |
or personal) arising out of or relating to any such generation, presence, disposal, release or threatened release of any Hazardous Substances; or (viii) any violations of or failure to comply with any Environmental Laws with respect to the operation of the Premises or construction, ownership or operation of the Project (excluding any Pre-Existing Environmental Conditions).
I4.4 Failure to Defend; Separate Representation. In the event an Indemnitor, within a reasonable time after receiving a Notice of Claim or a Notice of Potential Claim from an Indemnitee, fails to defend any Claim or Potential Claim for which such lndemnitor is obligated to indemnify or defend such Indemnitee, such Indemnitee may, at Indemnitor' s expense and after giving notice to Indemnitor of such action, undertake the defense of the Claim or Potential Claim and may, without the consent of Indemnitor being required, compromise or settle the Claim or Potential Claim, all for the account of Indemnitor. Notwithstanding any of the preceding provisions of and in addition to its other rights under this Article 14, each Indemnitee shall have the right to employ counsel to represent it with respect to any Claim or Potential Claim if, in such lndemnitee's reasonable judgment, it is advisable for such Indemnitee to be represented by separate counsel, and in that event, the fees and expenses of such separate counsel shall be paid by such Indemnitee, unless in any action where both Indemnitee and Indemnitor are joined as parties, such Indemnitee reasonably determines that defenses are available to it that are unavailable to or in conflict with defenses available to Indemnitor, in which case such Indemnitee shall be entitled to retain separate counsel to represent it at the expense of Indemnitor.
| 14.5 | Costs Associated with Defaults. |
(x) one (I) year after the date on which Lessee shall have completed its performance of such obligations, or (y) one (I) year after the date on which Lessor or such Lessor's Protected Person first obtains actual notice of such Lessor's Potential Claim or Claim. However, nothing contained in this Article 14 shall be deemed or construed in any way to extend the applicable statute of limitations with respect to any Potential Claim or Claim that has arisen or arises out of or from, or is in any way related, to the matters described in Section 14.1.
ARTICLE 15
Environmental Compliance Obligations
to complete any such assessment or test shall be within the sole and absolute discretion of Xxxxxx's Beneficiary. In connection therewith, Lessee shall permit and cause each Tenant Lease to require each Tenant to permit Lessor's Beneficiary and its environmental consultants or inspectors to have reasonable access to the Premises, the Buildings or other Improvements (or any new Buildings or other Improvements constructed by Lessee pursuant to a Redevelopment Plan approved by Lessor pursuant to Section 12.5) at all reasonable times and Lessee agrees to make or cause to be made available to Lessor's Beneficiary or any such environmental consultant or inspector any information reasonably requested regarding the nature of any Hazardous Substances used, stored or otherwise present at the Premises, the Buildings or other Improvements (or any new Buildings or other Improvements constructed by Lessee pursuant to a Redevelopment Plan approved by Lessor pursuant to Section 12.5) in connection with the use or occupancy of the Premises or any part thereof. Except as otherwise provided in Section 9.lfc)(iv) above or Section 15.3(a) below, any assessment or test conducted by or for Lessor's Beneficiary shall be at Lessor's Beneficiary's sole cost and expense. To the fullest extent not prohibited by applicable laws, Xxxxxx's Beneficiary shall protect, indemnify, save harmless and defend Lessee and its Protected Persons from and against all Claims (excluding Claims arising out of an Environmental Event for which Lessee is responsible under this Article 15) in connection with any entry upon the Premises to conduct the assessments and tests provided for in this Section 15.2.
| 15.3 | Lessee's Remediation Obligations. |
Environmental Condition (unless, under applicable Environmental Laws, Lessee is nevertheless obligated to perform any required Remediation thereof, in which case, such Remediation shall be performed by Lessee at Lessor's expense), then as promptly as practicable, in light of the nature of such Environmental Event, the requirements of any applicable Governmental Authorities or Environmental Laws and other relevant existing circumstances, Lessee shall conduct and complete or cause to be conducted or completed any Remediation reasonably required to clean up and remove all such Hazardous Substances in accordance with and to the extent required by all applicable Environmental Laws and any orders or directives of any Governmental Authorities charged with responsibility or authority pursuant to such Environmental Laws.
Environmental Report prepared pursuant to Section 9.l(c)(iv) or in any other environmental assessments or tests relate to a Pre-Existing Environmental Condition shall be subject to the negotiation and mediation provisions of Section 18.1, followed by a determination through arbitration pursuant to Article 18. However, nothing contained in this Section 15.4 shall prevent Lessor, Xxxxxx's Beneficiary or Lessee from acting either in accordance with the directives of any Governmental Authorities or under those circumstances provided in Section 15.3(c) where Lessor or Lessor's Beneficiary is entitled to act without notice to Lessee.
ARTICLE 16
Inspection and Exhibition of Premises by Xxxxxx
I 6.4 Quiet Enjovment. Lessor covenants that Xxxxxx, upon paying the Rent and all other charges required to be paid by Lessee hereunder and performing, observing and keeping all of the terms, covenants, conditions, agreements and obligations of this Lease on its part to be performed, shall lawfully and quietly hold, occupy and enjoy the Premises during the Term
of this Lease without hindrance or molestation of anyone claiming by, through or under Lessor, including, without limitation, any Fee Mortgagee, subject, however, to the provisions of this Lease.
ARTICLE 17
Defaults; Remedies
| 17.1 | Defaults.The occurrence of any of the following shall constitute a default |
("Default") under this Lease:
under this Lease in all material respects, including without limitation a failure to make timely Submittals by the required dates for the Initial Project, any Added Component, any Major Change, or Redevelopment Plan or the occurrence of a Triggering Event and a failure to comply with the provisions of Section 6.9 of this Lease within ten (10) Business Days following the date of the occurrence of the Triggering Event; or
G) Insolvency. Any Bankruptcy Proceeding is commenced under any applicable state or federal bankruptcy or insolvency law other than the Bankruptcy Code against Lessee or in which Lessee is named as debtor (or, if Lessee is a partnership, against any of such partnership's general partners or in which any of such partnership's general partners are named as debtor, unless the remaining general partner or partners or substituted general partner or partners of such partnership have a collective financial net worth as of the date such Bankruptcy Proceeding is commenced at least equal to the net worth of the general partner or partners against whom such Bankruptcy Proceeding is commenced as of the date each such general partner or partners first became a general partner).
Days after the date such Bankruptcy Proceeding is commenced; or
remaining general partner or partners or substitute general partner or partners have a collective financial net worth as of the date the partner files any such petition or other document at least equal to such general partner as of the date such general partner first became a general partner).
| 17.3 | Lessor's Remedies. |
of this Lease (or which would have been the date for payment had this Lease not been terminated). In any of the circumstances hereinabove mentioned under which, and on any of the Days so specified on which, Lessor shall have the right to hold Lessee liable to pay Lessor the equivalent of the amount of all the Rent and all other amounts required to be paid by Xxxxxx, Xxxx the excess of the rent collected by Xxxxxx, if any, from reletting the Premises over the amounts described in clauses (i) and (ii) of Section J 7.3(b). if any. Lessor shall have the right to elect in place and instead of holding Lessee so liable, to recover against Lessee as damages for loss of the bargain and not as a penalty an aggregate sum which, at the date on which Lessor elects to exercise such right, represents the then commuted value (i.e., the present worth) of the excess, if any, of the aggregate of the Rent and all other amounts payable by Lessee under this Lease that would have accrued for the balance of the Term over the aggregate rental value of the Premises for the balance of such Term, discounted at a rate of eight and one-half percent (8.5%) per annum. For purposes of any calculation of Rent pursuant to this Section l 7.3(c), any future increases to Base Rent pursuant to Article 3, any Additional Rent payable pursuant to Article 4, as well as any anticipated increases in the rent collected, if any, from reletting the Premises, shall be determined by reasonable projections made by Lessor.
provide evidence of insurance within the time period provided in Section 17.1(b) following notice from Lessor, for which no further notice by Lessor shall be required and except for Defaults which create an imminent risk of injury to Persons or property, for which no further notice beyond the first notice given by Lessor pursuant to Section 17.l shall be required), cure any such Default, and for such purposes shall have the right to enter onto the Premises and the Project in accordance with Section 16.1 of this Lease. All amounts expended by Lessor in connection therewith, together with interest thereon at the Lease Interest Rate from the date incurred or paid by Lessor to the date of payment by Xxxxxx, shall be Additional Rent due from Lessee upon demand.
ARTICLE 18
Alternative Dispute Resolution Procedures
| 18.I | Negotiation and Mediation Prior to Arbitration. |
| 18.5 | Rules Governing Arbitration; Decisions. |
| (i) | All witnesses shall testify under oath and on the record. |
ARTICLE19
Appraisal Procedures
11, or Article 12, or (3) the Gross Square Feet of the Building destroyed by Casualty as
contemplated by Article 11 within the respective time periods provided in such Articles, or (4)
the Appraised New Base Rent as contemplated by Article 3; or (ii) in the event no agreement has been reached by the parties on any other issue for which the appointment of an appraiser or appraisers shall be required or is pennitted with respect to the detennination of the Appraised Value or the Appraised Rate of Return (or both) under any other provision of this Lease, despite both parties having negotiated in good faith with respect to such Appraised Value or Appraised Rate of Return (or both), then the provisions of this Article 19 shall apply to detennine such Appraised Value or Appraised Rate of Return (or both).
| 19.2 | Procedures for Appointment of Appraisers. |
Appraised Value or the Appraised Rate of Return (or both), as the case may be. The two appraisers appointed by the parties may communicate in writing with and provide the Third Appraiser with all background documentation and information that supports their respective appraisals, provided copies of all such communications are sent simultaneously to the other appraisers. Neither appraiser shall otherwise communicate directly or indirectly with the Third Appraiser, except to provide the Third Appraiser with the results of his appraisal no earlier than three (3) Business Days after delivery by the Third Appraiser of the results of his appraisal. Within five (5) Business Days after delivery by the Third Appraiser of the results of his appraisal, the three appraisers shall meet and attempt in good faith to agree upon the Appraised Value or the Appraised New Base Rent, as the case may be.
(2) each of Lessor's and Xxxxxx's appraisals shall be compared to the Third Appraiser's appraisal. If Lessor's and Xxxxxx's appraisals are within five percent (5%) above or below the average and within ten percent (10%) above or below the Third Appraiser's appraisal, such quotient shall be the Appraised Value for the purposes set forth in this Lease. If either of Lessor's or Xxxxxx's appraisal is more than five percent (5%) above or below the average or more than ten percent (10%) above or below the Third Appraiser's appraisal, such appraisal or appraisals shall be disregarded, and the Appraised Value shall be the average of the remaining appraisals or, if neither of Lessor's or Xxxxxx's appraisals meet either criteria, the Appraised Value shall be the remaining appraisal. Examples illustrating the determination of the Appraised Value applying the foregoing principles are set forth on Exhibit K attached hereto.
average and within ten percent (I 0%) above or below the Third Appraiser's appraisal, such quotient shall be the Appraised New Base Rent for the purposes set forth in this Lease. If either of Lessor's or Lessee's appraisal is more than five percent (5%) above or below the average or more than ten percent (10%) above or below the Third Appraiser's appraisal, such appraisal or appraisals shall be disregarded, and the Appraised New Base Rent shall be the average of the remaining appraisals or, if neither of Lessor's or Lessee's appraisals meet either criteria, the Appraised New Base Rent shall be the remaining appraisal. Examples illustrating the determination of the Appraised New Base Rent, applying the foregoing principles are set forth on Exhibit L attached hereto.
I 9.3 Failure to Appoint; Appointment of Successors. If the Second Party shall fail to appoint an appraiser within the time and in the manner provided in Section 19.I, which failure continues for five (5) Business Days after notice of such failure is given by the First Party, the appraiser named by the First Party shall act alone; and if the two appraisers selected by the parties shall fail to appoint a Third Appraiser as provided in Section 19.I, then either party may, ten (10) Business Days or more after notice is given to the other party, apply to the then president of the American Institute of Real Estate Appraisers (or any successor to such institute hereafter constituted exercising similar functions) for the appointment of a Third Appraiser. If an appraiser appointed by one of the parties pursuant to Section 19.1 or any successor to an appraiser appointed as provided in this Section 19.3, in either case, dies, fails or refuses to act, resigns or becomes disqualified, the party appointing that appraiser shall appoint a successor to fill the vacancy and, in the event said party fails to do so within ten (I 0) Days after demand by the other party, the latter may appoint the successor. If the vacancy involves an appraiser appointed otherwise than by the parties, a successor shall be appointed in the manner as the appraiser he or she succeeds.
ARTICLE20
Subordination and Attornment
obligations as are set forth in this Lease; provided, however, that no Successor-Lessor shall be liable for any act or omission of any prior Lessor; no Successor-Lessor shall have any personal liability, all such liability of the Successor-Lessor being limited to the extent of the fee simple or reversionary interest or estate of Successor-Lessor in the Premises; and the Successor Lessor shall not be bound by any payment of Base Rent made by Lessee to Lessor for more than three (3) months in advance of the due date thereof.
ARTICLE21
Estoppel Certificates
(iii) to the knowledge of the individual signing for Xxxxxx, whether Lessor is in default under this Lease and if in default, specifying each such default, and (iv) such other matters as may be reasonably requested by Xxxxxx.
XXXXXXX00
Surrender of Premises
ARTICLE23
Limitation on Lessor's Liability
The tenn "Lessor" as used in this Lease, so far as covenants or obligations on the part of Lessor are concerned, shall be limited to mean and include only the owner or owners of Lessor's Estate at the time any determination is made under this Lease and, in the event of any transfer or transfers of Lessor's Estate, Lessor's Beneficiary, the Society of the Divine Word and their respective Affiliates (and in case of any subsequent transfer or conveyance, the grantor in any such transfer or conveyance) shall be automatically freed and relieved from and after the date of such transfer and conveyance of all liability, in respect of the performance of any covenants or obligations on the part of Lessor contained in this Lease thereafter to be perfonned; provided that, with respect to any funds or securities in which Lessee has an interest, Lessor (or such granter) at the time of such transfer or conveyance, shall not be freed or relieved of liability until (i) such funds and securities shall be accounted for and turned over to the grantee or, at the request of Lessee, to a bank or trust company to be selected by Xxxxxx, and whose fees or charges shall be paid by Xxxxxx, in trust for the purposes for which said funds or securities were paid to Lessor (or such granter), and (ii) any amount then due and payable to Lessee by Lessor (or such granter) under any provision of this Lease shall be paid to Xxxxxx and any such assignee agrees to assume the obligations of Xxxxxx from and after the date of any such assignment. Notwithstanding the foregoing, or any other provision contained in this Lease, Lessor's obligations under this Lease shall not constitute a personal obligation of Lessor or any of its officers or directors and Lessee or any other person claiming by, through or under Lessee will look solely to Lessor's Estate for satisfaction of any liability of Lessor in respect of this Lease and will not seek recourse against any other assets of Lessor or against any of its members, officers, directors or employees.
ARTICLE24
Notices
24.X Xxxxxx of Providing Notices. All notices and other communications in connection with this Lease shall be in writing, and any notice or other communication shall be deemed delivered to the addressee thereof (i) when actually delivered at the address set forth below for such addressee, or (ii) one (1) Day after deposit with a reputable overnight courier service providing delivery receipts, delivery charges prepaid, or (iii) three (3) Days after deposit thereof in any main or branch United States post office certified or registered mail, postage prepaid, return receipt requested, in each case, properly addressed to the parties, respectively, as follows:
For notices and communications to Lessor:
Chicago Title Land Trust Company Trustee of Trust No. 1114332
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Land Trust Department
and to (if by personal service or by courier service):
Divine Word Techny Community Corporation 1985 Waukegan Road
Northbrook, Illinois 60062
Attention: Chairman, Techny Land Committee or to (ifby mail):
Divine Word Techny Community Corporation
P.O. Box 6038
Techny, Illinois 60602-6038
Attention: Chairman, Techny Land Committee with a copy to:
Xxxxxx Xxxxxx LLP
6600 Sears Tower
000 Xxxxx Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx or Xxxxx X. Xxxxxxx For notices and communications to Xxxxxx:
FCL Founders Drive LLC c/o FCL Builders, Inc.
0000 Xxxxxx Xxxx Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, President
and to:
FCL Founders Drive, LLC c/o Four Columns, Ltd.
0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxxx 00000-2011 Attention: Xxxxxx X. Xxxxxxx, President
with a copy to:
Xxxxxxxx Richmond, LLP 000 X. Xxxxxx Xxxxx Xxxxx 0000
Chicago, Illinois 60606-1288 Attention: Xxxxx X. Xxxxx
Persons to whom copies of notices are designated to be sent are to be provided such copies for information purposes only; such copies need not be sent via certified or registered mail or by
overnight courier or other delivery service; and failure of any Person to send or receive any such copy shall not affect the validity of notice otherwise given to a party in compliance with the provisions of this Article.
ARTICLE25
Rights of Leasehold Mortgagees
incapable of being cured by such Leasehold Mortgagee by the payment of money, such Leasehold Mortgagee's rights shall be governed by Section 25.3 and Section 25.4.
| 25.4 | Rights Upon Termination of Lease by Xxxxxx. |
following events have occurred: (i) the First Leasehold Mortgagee makes a written request ("New Lease Request") to Lessor for the New Lease within thirty (30) Days after Lessor gives such First Leasehold Mortgagee Lessor's Termination Notice; (ii) such New Lease Request is followed by a payment (made to Lessor within ten (10) Days after being billed by Lessor) of all amounts due to Lessor under this Lease at the time of the New Lease Request; (iii) the New Lessee at the time of the New Lease Request cures the Event of Default upon which such termination was based or, if such Event of Default cannot be cured by the payment of money, the New Lessee has reasonable and adequate capital, capital surplus or other financial resources to perform Lessee's obligations hereunder (as reasonably determined by Lessor) and agrees with Lessor at the time of the New Lease Request to proceed promptly and with due diligence to cure such Event of Default and, if possession of the Project is necessary to cure such Event of Default, to proceed upon the execution of the New Lease promptly and with due diligence to obtain the possession needed to cure such Event of Default or, if such Event of Default by its nature cannot be cured by the New Lessee with or without possession of the Project, the New Lessee agrees in writing to cooperate in good faith in any legal or other action taken by Lessor to compel Lessee or others to cure such Event of Default; and (iv) the New Lessee pays or causes to be paid to Lessor at the time of execution and delivery of the New Lease any and all sums that would be due under this Lease at the time of the execution and delivery of the New Lease and pays or causes to be paid to Lessor all expenses, including reasonable attorneys' fees, court costs and disbursements incurred by Lessor in connection with termination of this Lease as to Xxxxxx and in connection with the execution and delivery of the New Lease. In no event, however, shall any First Leasehold Mortgagee be under any obligation or liability whatsoever with respect to any New Lease unless such First Leasehold Mortgagee shall be the New Lessee thereunder and then for only so long as it remains the New Lessee thereunder. In connection with the execution of a New Lease by Xxxxxx, Lessor will confirm it has waived any Events of Default on the part of the prior Lessee that are not capable of being cured by the New Lessee or the First Leasehold Mortgagee.
and participate in such arbitration upon notice to Lessor given in accordance with Article 24 hereof, subject to the time periods and other provisions of Section 25.2 with respect to a First Leasehold Mortgagee's right to cure a Default.
ARTICLE26
Representations and Warranties
complies in all respects with such Governmental Requirements, if and to the extent required pursuant to this Lease.
ARTICLE27
Miscellaneons Provisions
such Premises or the Project, or (d) the conduct of any business which is carried on upon such Premises or the Project. It is hereby agreed that said Trustee shall be permitted to attach the form of exculpation customarily used by it to all documents, agreements, instruments, or other writings executed by it.
names "Techny," "Society of the Divine Word" or variations thereof. Lessee will have the right to place appropriate temporary signs on the subject property describing the proposed development, subject in each case to the prior written approval of Lessor Committee with respect to the design, size, location and content of the text of any such sign, and subject to compliance with applicable Village ordinances and execution of an amendment to Xxxxxx's existing license agreement to permit such a sign. The parties intend to proceed with informal meetings with the Village staff and/or elected officials for the purpose of advising the Village regarding the proposed development of Parcel SE-IB-2 and attempting to resolve open issues respecting the Project. DWTCC and the Society of the Divine Word shall cooperate with Lessee in obtaining governmental approvals necessary for the Project as provided in Section 3.6.
[Signature Page(s) Follow]
WITNESS the due execution of this Lease by Xxxxxx as of the day and year first above written.
LESSOR:CIDCAGO TITLE LAND TRUST
COMPANY, not personall Trustee, as aforesai
ACKNOWLEDGMENT
STATEOFIUlNOIS)
) ss.
COUNTY OF COOK)
Mar1o Y, Xxxxxxx, the Asst, Vice President of ClDCAGO TITLE LAND TRUST COMPANY, not personally, but solely as trustee under Trust Agreement dated May 31, 2006, and known as Trust No. 1114332, and Xxxxxxx Xxxxxxxx, the
hsi sta:otSecretary of the Bank, who are personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Asst. Vice President and Assistant Secretary, respectively, appeared before me this day in person and acknowledged that they signed and delivered said instrument as their own free and voluntary act and as the free and voluntary act of said Bank, as Trustee as aforesaid, for the uses and purposes therein set forth; and said Asst. Secretary then and there acknowledged that _!he, as custodian of the corporate seal of said Bank, did affix the corporate seal of said Bank to said instrument as he:t_ own free and voluntary act and as the free and voluntary act of said Bank, as Trustee as aforesaid, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal, this31stday ofJuly,2006.
120
WITNESS the due execution of this Lease by Xxxxxx as of the day and year first above written.
LESSEE:FCL FOUNDERS DRIVE, LLC, an Illinois
limited liability company
By: FOUR COLUMNS. LTD.• its managing member
XXxxxxx L yide.m
ACKNOWLEDGMENT
STATE OF U..LINOIS)
) ss.
COUNTY OF COOK)
This instrument was acknowledged before me on /L..J £ , 2006, by Xxxxxx X. Xxxxxxx as President of Four Columns. Ltd., the managing:ikmher of FCL FOUNDERS DRIVE, LLC, an Illinois limited liability company.
GIVEN under my hand and notarial seal, this ,, H day ofc:ft_tt
, 2006.
"OFFICIAL SEAL"
Xxxxx Xxxxxxxx
Notary Public, State of Illinois
My Commission Exp. 04/01/2010
My Commission Expires:
4-1-2010
121
Exhibit A
Legal Description of Land
THAT PART OF LOT SE-lB IN TECHNY PARCEL SE-1, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 14, AND PART OF THE NORTHWEST QUARTER OF SECTION 23, AND PART OF THE NORTHEAST QUARTER OF SECTION 23, ALL IN TOWNSHIP 42 NORTH, RANGE 12 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO PLAT THEREOF RECORDED DECEMBER 22, 2000, AS DOCUMENT NO. 0001007540, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT SE-lB; THENCE NORTHERLY ALONG THE WEST LINE OF SAID LOT SE-IB THE FOLLOWING TWO (2) COURSES AND DISTANCES: 1) NORTH 12 DEGREES 07 MINUTES 24 SECONDS EAST 376.79 FEET; 2) NORTH 36 DEGREES 57 MINUTES 13 SECONDS EAST 67.13 FEET FOR THE PLACE OF BEGINNING; THENCE CONTINUING NORTHERLY ALONG THE WEST LINE OF SAID LOT SE-lB THE FOLLOWING SEVEN (7) COURSES AND DISTANCES: 1) NORTH 36 DEGREES 57 MINUTES 13 SECONDS EAST 214.90 FEET; 2) NORTH 01 DEGREES 05
MINUTES 24 SECONDS WEST 173.10 FEET; 3) NORTH 29 DEGREES 13 MINUTES 03
SECONDS WEST I 15.60 FEET; 4) NORTH 82DEGREES 11 MINUTES 33 SECONDS
WEST 132.97 FEET; 5) NORTH 00 DEGREES 24 MINUTES 56 SECONDS WEST 131.03
FEET; 6) NORTH 81 DEGREES 48 MINUTES 23 SECONDS EAST 126.59 FEET; 7) NORTH
43 DEGREES 14 MINUTES 15 SECONDS EAST 125.09 FEET; THENCE SOUTH 46 DEGREES 45 MINUTES 45 SECONDS EAST 48.96 FEET; THENCE SOUTH 88 DEGREES 41 MINUTES 55 SECONDS EAST 381.50 FEET TO THE EAST LINE OF SAID LOT SE-IB, SAID EAST LINE ALSO BEING THE WEST LINE OF HERETOFORE DEDICATED FOUNDERS DRIVE; THENCE SOUTH ALONG THE EAST LINE OF SAID LOT SE-IB THE FOLLOWING FOUR (4) COURSES AND DISTANCES: I) SOUTH 01 DEGREES 18 MINUTES 05 SECONDS WEST 69.16 FEET TO A POINT OF CURVATURE; 2) ALONG AN ARC OF A CURVE CONCAVE TO THE WEST, HAVING A RADIUS OF 1000.00 FEET, HAVING A CHORD BEARING OF SOUTH 08 DEGREES 53 MINUTES 18 SECONDS WEST, 264.83 FEET TO A POINT OF REVERSE CURVATURE; 3) ALONG AN ARC OF A CURVE CONCAVE TO THE EAST, HAYING A RADIUS OF 1100.00 FEET, HAVING A CHORD BEARING OF SOUTH 08 DEGREES 53 MINUTES 18 SECONDS WEST, 291.31 FEET TO A POINT OF TANGENCY; 4) SOUTH 01 DEGREES 18 MINUTES 06 SECONDS WEST 90.67 FEET; THENCE WESTERLY ALONG AN ARC OF A CURVE CONCAVE TO THE NORTHWEST AND NONTANGENT TO THE LAST DESCRIBED LINE, HAVING A RADIUS OF 55.00 FEET, HAVING A CHORD BEARING OF SOUTH 55 DEGREES 23 MINUTES 08 SECONDS WEST, 58.96 FEET; THENCE NORTH 89 DEGREES 08 MINUTES 08 SECONDS WEST ALONG A LINE NONTANGENT TO THE LAST DESCRIBED CURVE 29.87 FEET; THENCE NORTH 01 DEGREES 48 MINUTES 23 SECONDS EAST, 164.64 FEET; THENCE NORTHERLY ALONG AN ARC OF A CURVE CONCAVE TO THE EAST AND NONTANGENT TO THE LAST DESCRIBED LINE, HAVING A RADIUS OF 1176.00 FEET, HA YING A CHORD BEARING OF NORTH 08 DEGREES 05 MINUTES 03 SECONDS EAST, 201.60 FEET; THENCE NORTH 75 DEGREES 23 MINUTES 26 SECONDS WEST ALONG A LINE NONTANGENT TO THE LAST DESCRIBED CURVE 113.38 FEET TO A POINT CURVATURE; THENCE
WESTERLY ALONG AN ARC OF A CURVE CONCAVE TO THE SOUTH, HAYING A RADIUS OF 459.00 FEET, HAYING A CHORD BEARING OF NORTH 79 DEGREES 37 MINUTES 12 SECONDS WEST, 67.77 FEET; THENCE SOUTH 77 DEGREES 19 MINUTES
10 SECONDS WEST ALONG A LINE NONTANGENT TO THE LAST DESCRIBED CURVE 37.13 FEET; THENCE SOUTH 88 DEGREES 54 MINUTES 36 SECONDS WEST
20.00 FEET; THENCE SOUTH 01 DEGREES 05 MINUTES 24 SECONDS EAST 9.00 FEET; THENCE SOUTH 88 DEGREES 54 MINUTES 36 SECONDS WEST 20.00 FEET; THENCE NORTH 87 DEGREES 30 MINUTES 44 SECONDS WEST 24.05 FEET; THENCE SOUTH 88 DEGREES 54 MINUTES 36 SECONDS WEST 20.00 FEET; THENCE SOUTH 01 DEGREES 05 MINUTES 24 SECONDS EAST ALONG A LINE 10.00 FEET EAST OF AND PARALLEL WITH THE WEST LINE OF SAID LOT SE-lB, A DISTANCE OF 141.66 FEET; THENCE SOUTH 36 DEGREES 57 MINUTES 13 SECONDS WEST ALONG A LINE 10.00 FEET EAST OF AND PARALLEL WITH SAID WEST LINE OF SAID LOT SE-lB, A DISTANCE OF 218.35 FEET; THENCE NORTH 53 DEGREES 02 MINUTES 47 SECONDS WEST 10.00 FEET TO THE PLACE OF BEGINNING, IN COOK, ILLINOIS.
PIN: 04-23-107-002-0000 (portion only)
Common Address: 5.018± Acre Tract of Vacant Land lying to the west of Founders Drive and North of Willow Road.
Exhibit B
List of Permitted Exceptions
I. Installments not yet due and payable for general real estate taxes for the year 200I and all subsequent years.
| 2. | Terms, provisions, conditions and limitations of the ordinance establishing property shares for indirect benefits provided by the Xxx-Xxxxx Water Feeder Main Ordinance No. 80-35 recorded on September 17, 1980 as Document No. 25587903. |
| 3. | Easement for sewer and water in favor of Village of Northbrook, its successors and assigns contained in the Grant recorded as Document No. 98564628. |
| 4. | Easement in favor of Commonwealth Edison and Ameritech granted pursuant to a Grant of Easements recorded August 28, 2001 as Document No. 0010791546. |
| 5. | Rights of the public, the State of Illinois, the municipality in and through (i) any portions of the Land taken or to be dedicated for public roads according to the Final Plat for Parcel SE-I recorded as Document No. 0001007540 which identifies that portion of the underlying land of said subdivision which is to be dedicated for Waukegan and Willow Roads for highway purposes, and (ii) any portions of the Land identified as lying south of the northerly right-of-way line of Willow Road and east of the westerly right-of-way line of Waukegan Road on the instrument recorded as Document No. 91392906. |
| 6. | The Annexation Agreement, and the Consent Letter. |
| 7. | The Transportation Agreement. |
| 8. | The Final Plat for Parcel SE-I and all matters disclosed thereon, including easements for the benefit of the Village, Northern Illinois Gas Company, Commonwealth Edison, and Ameritech, and their respective successors and assigns, and all applicable provisions of the Subdivision Agreement assumed by Lessee pursuant to the Transferee Agreement. |
| 9. | Terms, covenants, conditions, easements and restrictions set forth in the Declaration and in the declaration creating the Parcel SE-1B-2/SE-1B-3 Sub-Association. |
| 10. | The Private Drives and Driveway Easement. |
| 11. | Terms, provisions and conditions of the Transferee Agreement. |
| 12. | Public Utility Easement Granted in the Final Plat recorded as Document No. 0001007540. |
| 13. | Village Utility Easement Granted in the Final Plat recorded as Document No. 000I007540. |
| 14. | Easement in favor of Northern Illinois Gas Company, and its/their respective successors granted pursuant to a Grant of Easements recorded as Document No. 98199545. |
| 15. | Acts of Lessee or anyone claiming by, through or under Lessee or any other matters approved or agreed to by Xxxxxx. |
| 16. | Easements to the Village for future bike paths along Founders Drive to be installed by Lessor as part of the Off-Site Improvements. |
| 17. | Easement to the Village for installation, operation, maintenance, repair, replacement or reconstruction of a lift station at the north east xxxxx of Parcel SE-1B-3 to be initially installed by Lessor as part of the Off-Site Improvements. |
Exhibit C
Definitions
The following defined terms are used in the Lease to which this Exhibit C is attached, and shall have the meanings provided for in this Exhibit C.
| 3. | "Adjusted Base Rent" shall have the meaning set forth in Section 3.l(c). |
certain Third Amendment to Annexation Agreement dated July 13, 1999, which was filed for record in the Office of the Recorder, Cook County, Illinois on November 12, 1999, as Document No. 09067534; (iv) that certain Fourth Amendment to Annexation Agreement dated May 13, 2005, which was filed for record in the Office of the Recorder, Cook County, Illinois on May 31, 2005, as Document No. 0515103085; (v) that certain Fifth Amendment to Annexation Agreement dated August 16, 2005, which was filed for record in the Office of the Recorder, Cook County, Illinois on August 18, 2005, as Document No. 0523032093; (vi) that certain Sixth Amendment to Annexation Agreement dated February 14, 2006, which was filed for record in the Office of the Recorder, Cook County, Illinois on March 8, 2006, as Document No. 0808718036; and (vii) all further amendments thereto.
| 7. | "Appraisal Review Period" shall have the meaning set forth in Section 19.2(b). |
pursuant to the terms of this Lease, based upon generally accepted appraisal methods and assuming, in the case of a determination of the fair market value of the Land, the following: (i) the Land is encumbered by this Lease and the Permitted Exceptions (except that for purposes of determining the fair market value of Lessor's Estate no liens, encumbrances or restrictions created or suffered by Lessee shall be considered unless the same have been specifically permitted under this Lease, or joined in by Lessor during the Term of this Lease as exceptions that will be binding on Lessor's Estate upon the expiration or termination of this Lease); (ii) all
utilities and public improvements are available at the perimeter of the Land; and (iii) the Land is improved with those Buildings and other Improvements that exist as of the date a determination of such fair market value is to be made. The Appraised Value shall be determined, absent an agreement between Lessor and Xxxxxx, in the manner set forth in Article 19.
| 15. | "Appurtenant Rights" shall have the meaning set forth in Section 1.1. |
| 16. | "Bankruptcy Code" shall have the meaning set forth in Section 17.l(i). |
| 18. | Intentionally Deleted. |
I 9.Intentionally Deleted.
| 20. | Intentionally Deleted. |
pursuant to the Approved Plans for an Added Component pursuant to Section 12.3 or any Redevelopment Plan approved by Lessor as provided in Section 12.5.
Lease Year for which any such calculation is being made), or to any of their respective Affiliates, in excess of the amounts for such fees that are reasonable and customary for similar services in the Chicago metropolitan commercial real estate market.
| 33. | "Construction Period" shall have the meaning set forth in Section 3.l(a). |
| 35. | "Declaration" shall have the meaning set forth in Section 4.9. |
| 36. | "Default" shall have the meaning set forth in Section 17.1. |
| 38. | "Effective Date" shall have the meaning set forth in the first paragraph of this |
Lease.
| 39. | "Environmental Event" shall have the meaning set forth in Section 15.3(a). |
| 42. | "Environmental Laws" shall have the meaning set forth in Section 15.1. |
| 45. | "Environs" shall have the meaning set forth in Section 1.2(a). |
| 47. | "Event of Default" shall have the meaning set forth in Section 17.2. |
| 48. | "Exercise Notice" shall have the meaning set forth in Section 9.5(a). |
| 49. | "Exercise Period" shall have the meaning set forth in Section 9.5(a). |
| 51. | "FF&E Reserve" shall have the meaning set forth in Section 6.6(a). |
| 52. | "FF&E Reserve Report" shall have the meaning set forth in Section 6.6(a). |
| 53. | "Fee Mortgage" shall have the meaning set forth in Section 9.4. |
pUIJloses the size and character of any and all elements of a proposed Project (or any Changes or Alterations approved by Lessor pursuant to Section 12.1, any Added Component approved by Lessor pursuant to Section 5.I or any new Buildings or other Improvements included in a Redevelopment Plan approved by Lessor pursuant to Section 12.5) as to architectural, structural, mechanical and electrical systems, exterior landscaping (including in the case of the Initial Project, "the landscaping within the Perimeter Open Space that is to be part of the Parcels SE I B-2/SE-1 B-3 Common Area Improvements"), site plan layout, private roadway locations, parking area locations and other elements of such Project; and (iii) are sufficient to obtain building and other necessary permits from all applicable Governmental Authorities to construct the same and any and all required On-Site Improvements (including Public Improvements) required to be constructed as part of such Project (if and to the extent such On-Site Improvements are not included in the Final Engineering for the Site Work and are not constructed as part of the Site Work); and (b) a final Approved Schedule for the construction of all such elements that has been approved in writing by Lessor's Beneficiary and Lessee and that calls for Substantial Completion of such elements by the applicable Substantial Completion Date. Plans for (I) all Building and base building components (such as base building heating, ventilating and air conditioning systems, electrical systems, elevators and mechanical or plumbing systems, including exterior rooftop mounted units and related screening) but not interior distribution or extension of Building and base building components (such as base building heating, ventilating and air conditioning systems, electrical systems, elevators and mechanical or plumbing systems within a Tenant's space, which shall not be subject to Lessor's approval), including any separate Building or other Improvements to be constructed on a Full Site Pad, (2) parapet wall, rooftop or exterior mounted signage visible (whether lit or unlit) from outside the boundaries of the Premises, (3) any modifications to the base building or to separate tenant-installed exterior rooftop mounted heating, ventilating or air conditioning units and related screening, and (4) any separate Buildings and other exterior wall or other outside features of the Building or other Improvements to be constructed on the Land, shall all be included in the Final Plans and Specifications and remain subject to Lessor's approval. Final Plans and Specifications detailing typical floor layouts, space allocations and general categories of use of space, interior distribution or extension of interior Building mechanical, electrical or other systems or other interior Tenant Finish Improvements, as well as any minor exterior change or alterations (such as the location of entrance doorways or glass door mounted lettering type signage), or any similar items made a part of any Full-Site Pad Improvements, shall be submitted to Lessor from time to time when prepared for informational pUIJloses only so that Lessor has at all times a complete set of all Final Plans and Specifications for all of the Buildings and other Improvements from time to time located on the Premises, but such details shall not be subject to Lessor's approval unless required pursuant to Section 5.I(fl.
other circulation aisles and parking areas, final footprints of all Buildings, and other similar Improvements that must be determined in order to complete all mass grading and underground work, as well as all parking lots and interior entrances, sidewalks and driveways.
| 63. | "First Notice" shall have the meaning set forth in Section 19. l(a). |
| 64. | "First Party" shall have the meaning set forth in Section 19.1(a}. |
| 65. | "Five Seasons" shall have the meaning set forth in Section 3.6(c). |
| 66. | "Five Seasons Ground Lease" shall have the meaning set forth in Section 3.6(c). |
| 68. | "Founders Drive Sewer Extension" shall have the meaning set forth in clause |
(2) of Section 5.I(b)(iii)(2).
| 72. | "Full-Site Pad Guaranty" shall have the meaning set forth in Section 5.2(b). |
| 75. | "Full-SitePadImprovements" |
Section 12.1(a)(ii).
shallhave the meaningset forthm
thereof unless due to the addition of an Added Component, in which case the Gross Square Feet of such Added Component, as set forth in the Final Plans and Specifications for such Added Component that have been approved by Lessor to be constructed on the Premises and submitted to the Village for purposes of obtaining a building permit, shall be added to the previous Gross Square Feet for such Building to obtain a new Gross Square Feet for such Building as of the date Adjusted Base Rent becomes payable under this Lease on account of such Added Component as provided in Section 3.l{c).
| 82. | "Highway Dedications" shall have the meaning set forth in Section 1.4. |
| 83. | "Hotel Project" shall have the meaning set forth in Section 3.6(c). |
| 85. | "IDOT Approved Plans" shall have the meaning set forth in Section 5.1(b)(iii). |
(whether or not imposed on or measured by all or any portion of the Rent paid or payable by Xxxxxx), and all other governmental charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind and nature whatsoever including, but not limited to, assessments for public improvements or benefits, and any and all taxes imposed on Lessor that are, in whole or in part, in substitution for or in lieu of any of the foregoing taxes.
| 87. | "Improvements" shall have the meaning set forth in clause (ii) of Section 5.2(a). |
| 90. | Intentionally Deleted. |
.tiC,hl.
| 93. |
| 94. |
| 95. |
"Initial Project Submittal Date" shall have the meaning set forth in Section
"Initial Term" shall have the meaning set forth in Section 1.1.
"1!!!!!" shall have the meaning set forth in Section 1.1.
(iii) if both banks shall cease announcing any such rate, then the rate of interest on 90-Day Treasury Bills issued by the United States government having an issue date as near as may be
practicable to and preceding such date plus seven percent (7%). Notwithstanding the foregoing, if the "Lease Interest Rate" calculated as provided in the preceding sentence is prohibited by law, in which case "Lease Interest Rate" shall mean the maximum contract rate permitted by law at such time, but in no event shall such rate be greater than eighteen percent (18%).
I 00. "Leasehold Mortgagee" shall mean the holder or holders at any time or from time to time of any note or other documents evidencing the debt and other obligations secured by any Leasehold Mortgage.
IOI. "Lessee" shall include the named Lessee identified in the first paragraph of this Lease and each and every assignee or transferee of Xxxxxx's interest under this Lease permitted pursuant to Section 9.1 and any New Lessee.
102. "Lessor" shall include the named Lessor identified in the first paragraph of this Lease, and each and every assignee or transferee of Xxxxxx's interests hereunder or of Xxxxxx's Estate, subject to the provisions of Section 9.4, and any Successor-Lessor.
I 03. "Lessor's Beneficiary" shall mean (i) as of the date hereof DWTCC, being the sole beneficiary of Chicago Title Land Trust Company, Trust No. 1114332, or (ii) from time to time after the date hereof, each and every Person that is an assignee or transferee of DWTCC's interest or any part thereof hereunder permitted pursuant to this Lease and each and every Person that is at any time (or from time to time) the beneficiary of any Lessor that is a so-called "Illinois land trust," but determined only as of the date as of which a determination is then being made or is then required to be made under the various provisions of this Lease as to the identity of the Lessor's Beneficiary. If at any time during the Term of this Lease there is no so-called "Illinois land trust" that is the Lessor, the term "Lessor's Beneficiary" shall mean Lessor.
| 107. | "Lessor Triggering Event" shall have the meaning set forth in Section 6.9(d). |
| 108. | "Lists" shall have the meaning set forth in Section 6.9(a)(i). |
| 109. | "Maior Change" shall have the meaning set forth in Section 12.l(a)(iv). |
| 111. | "Modified Offer Notice" shall have the meaning set forth in Section 9.5(c). |
| 113. | "New Exercise Period" shall have the meaning set forth in Section 9.5(c). |
| 114. | "New Lease" shall have the meaning set forth in Section 25.4(a). |
| 115. | "New Lease Request" shall have the meaning set forth in Section 25.4(b). |
| 116. | "New Lessee" shall have the meaning set forth in Section 25.4{a). |
| 117. | "Non-DisturbanceAgreement"shallhavethemeaningsetforthm |
Section 9.2{b)(i).
| 118. | "Notice of Claim" shall have the meaning set forth in Section 14.2. |
| 120. | "Notice of Potential Claim" shall have the meaning set forth in Section 14.2. |
| 121. | "OFAC" shall have the meaning set forth in Section 6.9(a). |
| 122. | "Offer Notice" shall have the meaning set forth in Section 9.5(a). |
| 126. | "Order" or "Orders" shall have the meanings set forth in Section 6.8(a). |
| 134. | "Perimeter Open Space" shall have the meaning set forth in Section 4.10. |
| 135. | "Permitted Assignee" shall have the meaning set forth in Section 9.l(a). |
| 136. | "Permitted Exceptions" shall have the meaning set forth in Section 1.3. |
| 137. | "Permitted Use" shall have the meaning set forth in Section 6.1. |
| 139. | "Possession Date" shall have the meaning set forth in Section l 7.3(c). |
| 140. | "Potential Claim" shall have the meaning set forth in Section 14.2. |
14I. "Pre-Existing Environmental Condition" shall mean the generation, disposal, release, threatened release or the presence or management of Hazardous Substances on, over, under, from or affecting the Premises, the Building or the other Improvements or any violation of any Environmental Laws that was caused or permitted by, attributed or related to or otherwise arose or occurred prior to the use or occupancy of the Premises by Lessee or by anyone acting by, through or under Lessee and that requires Remediation and which is disclosed by an Environmental Report or any other environmental assessment of the Premises or the Project conducted by or on behalf of Lessor, Lessee, any Leasehold Mortgagee, any Fee Mortgagee or any Governmental Authority.
I 42. "Preliminary Plans" shall mean those preliminary architectural and engineering drawings approved by Lessor pursuant to Section 5.1, Section 12.2 or Section 12.3 for any Major Change (including any Added Component) or Redevelopment Plan, which designate, in schematic form, the site plan layout (including utility looping and connection plans and storm detention and drainage facilities), exterior landscaping (including any within the Perimeter Open Space), parking area locations, private roadway locations, the preliminary locations of other Improvements, and building elevations, and which show in schematic form, the proposed height, shape, and building exterior characteristics of all Buildings and other Improvements, but which shall not include exact dimensions and specifications of colors or materials other than colors and materials for exterior windows, walls or roofs.
Mortgagee, if and to the extent required by any Leasehold Mortgage, or (y) in the absence of any Leasehold Mortgage which requires the Leasehold Mortgagee hold such funds, an independent corporate trustee or institution selected by Xxxxxx (and whose identity is reasonably satisfactory to Lessee) which is capable of performing and agrees to perform the obligations imposed upon it
(i) pursuant to Article 11 in connection with the application and distribution of any insurance proceeds in connection with the Restoration of the Project, (ii) pursuant to Article 10 in connection with the application and distribution of any award in any Condemnation Proceeding, or (iii) as otherwise provided in this Lease, as the case may be, and which agrees to hold such funds in trust for the benefit of Lessor, Xxxxxx, and their respective successors or mortgagees, as their respective interests may appear, in accordance with the applicable Article under this Lease. The fees and expenses of the Proceeds Trustee shall be paid by Lessee or deducted from any such proceeds held from time to time by such Proceeds Trustee.
| 148. | "Prohibited Uses" shall have the meaning set forth in Section 6.2(a). |
(v) any Changes or Alterations to any of the foregoing constructed after Substantial Completion
of the Initial Project, and (vi) any new Buildings or Improvements constructed on any portion of the Premises pursuant to a Redevelopment Plan approved by Lessor pursuant to Section 12.5.
| 153. | "Redevelopment Plan" shall have the meaning set forth in Section 12.5(a). |
| 154. | "Redevelopment Submittal" shall have the meaning set forth in Section 12.S(a). |
| 157. | "Renewal Term" shall have the meaning set forth in Section 1.1. |
I 58. "Rent" shall mean and include all Base Rent, and any adjustments or modifications thereto determined in accordance with the provisions of this Lease, and all Additional Rent payable by Lessee to Lessor under this Lease.
same value, condition and character as existed immediately prior to any loss due to a Casualty or any taking in any Condemnation Proceeding, as the case may be, lien-free and ready for use.
| 160. | "Rules" shall have the meaning set forth in Section I 8.S(a). |
| 162. | "Second Notice" shall have the meaning set forth in Section 5.l(e). |
| 163. | "Second Party" shall have the meaning set forth in Section 19.2(a). |
| 165. | "Security" shall have the meaning set forth in Section 4.S(a). |
| 166. | "Short Form of Lease" shall have the meaning set forth in Section 27.15. |
Preliminary Schedule or any previous Approved Schedule for the construction of any Added Components, Changes or Alterations or Redevelopment Plan proposed by Xxxxxx, as the context requires, that are submitted to Lessor or the Society of the Divine Word for review, comment or approval as contemplated in Article 5 or Article 12 of this Lease.
| 171. | "Submittal Date" shall have the meaning set forth in Section 12.2(a). |
| 176. | "Successor-Lessor" shall have the meaning set forth in Section 20.2. |
| 177. | "Techny/Xxxx Extension" shall have the meaning set forth in Section 5.1(b)(i). |
I80. "Techny Outlot" shall mean that certain, approximately 4.5 acre, parcel of land located to the north of Parcel SE-lA-2 and along Waukegan Road.
181."Techny Property Association" shall have the meaning set forth in Section 4.9.
I 82. "Tenant" or "Tenants" shall mean any financially responsible, bona fide third party tenant or occupant (including a Full-Site Tenant) of all or any portion of the Project, including for such purposes a separate operator or concessionaire under contract with Lessee or a Full-Site Tenant to operate any portion of the Project or any facilities within the Project, such as a beauty salon, sundry shop or separate restaurant or spa or physical fitness center facilities operator within a hotel or other mixed-use Building.
| 185. | "Tenant Percentage Rent" shall have the meaning set forth in Section 9.2(a)(i). |
| 187. | "Termination Date" shall have the meaning set forth in Section 1.I. |
| 189. | "Third Appraiser" shall have the meaning set forth in Section 19.2(b). |
shall be substantially in the form attached hereto as Exhibit 0, with such changes as are required
to reflect those obligations under the Subdivision Agreement and Annexation Agreement assumed by Lessee pursuant thereto, this Lease and the requirements of the Village.
| 195. | "Triggering Event" shall have the meaning set forth in Section 6.9{b). |
| 197. | "Y.{ shall mean V3 Consultants Ltd. |
| 200. | " "shall have the meaning set forth in Section 5.3(a). |
20I."Zoning Code" shall have the meaning set forthm clause (A)(2) of Section 12.2(d)(iii).
Exhibit D
Proposed Final Plans and Specifications for Hotel Project
Plans Entitled:
SHERATON -NORTHBROOK FOUNDERS DRIVE NORTHBROOK, IL 60062
Prepared by Xxxxxxxxx Associates Architects dated 12/05/05 Project No. 05027 Consisting of: Index of Drawings
Architectural Drawings: LS00I, LS002 AS00I
AIOI to AI04 ARI0J to AR103 A201 to A202 A301, A310, A311
A401 to A403, A4I 0, A420 to A433, A440, A441, A450 A501
A601, A610, A61 I, A620, A621 A701, A705
Structural Drawings:
S001,S002
SlOl to S105 S301 S501,S502 S701
S801 to S803
Mechanical Drawings:
M-001
M-I00toM-103 M-201
M-300 to M-302 M-400, M-401
Plumbing Drawings:
MP-001
MP-100, MP-l00A, MP-JO0B MP-101 toMP-103
MP-200, MP-201, MP-202A, MP-202B, MP-202C
MP-300 to MP-305, MP-306A, MP-306B, MP-307A, MP-307B, MP-308 MP-400 to MP-406
Fire Protection Sheets:
FP-001
FP-100 to FP-103 FP-201
FP-300 FP-400
Electrical Sheets:
E-001
E-JOOE, E-IOOL
E-101 to E-103
E-200, E-201, E-202A, E202B, E-203 E-300 to E-303
E-400 to E-404 E-500
Special Systems:
SS-00 I to SS-004 SS-100 to SSJ02 SS-200
Note: Approval is subject to Matters in Exhibit P
Exhibit E
Preliminary Schedule for Initial Project Develqpment and Construction
Submittals and Work Schedules' | Dates |
Preliminary Site Work | 10/05 to 08/06 |
Delivery of proposed Final Engineering for Site Work for Lessor's Approval (other than landscaping, site lighting and common area sign.age)2 | 06/06 to 07/06 |
Approval of proposed Final Engineering for Site Work by Lessor | Within the time periods provided in Section 12.2 after delivery to Lessor for approval |
Construction of Site Work (mass grading, site utilities, binder course on paved areas, interior walks) and Parcels SE-1B-2/SE-1B-3 Common Area Improvements (other than landscaping, site lighting and common area sign.age)2 | 06/06 to 12/06 |
Delivery of proposed modifications to Proposed Final Plans and Specifications for the Hotel Project | 07/06 to 10/06 |
Approval of Final Plans and Specifications for the Hotel Project by Lessor | Within the time periods provided in Section 12.2 after delivery to Lessor for approval |
Construction of Building and other On-Site Improvements by Full-Site Tenant (final completion within curb line; non-Parcel SE-1B-2/SE-1 B-3 Common Area Improvements) | 09/06 to 12/07 |
Xxxxxx's approval to proceed to the next stage of the development process set out in this Preliminary Schedule is contingent upon complying with all previously required items, and approval to proceed to at any subsequent date
is dependent upon the prior date. This Preliminary Schedule and changes in the schedule are not intended to override the outside date set out in the definition of "Substantial Completion Date" in Exhibit C of the Lease and in the final Approved Schedule. The schedule for delivery of Preliminary Plans and Final Plans and Specifications for approval by Lessor's Committees and construction of any Added Component or Redevelopment Plan shall be pursuant to separate Preliminary Schedules and Approved Schedules, developed as provided in Section 5.3{a) and Section 12.5 concurrently with the Submittal of proposed Preliminary Plans and proposed Final Plans and Specifications therefore.
2 Note: To the extent this obligation has been performed by the lessee under the Parcel SE-1B-3 Ground Lease, Lessee shall be relieved of any obligation to deliver such Final Plans and Specifications or Final Engineering.
Submittals and Work Schedules1 | Dates |
Delivery of Proposed Final Plans and Specifications for Parcels SE-IB-2/SE-1B-3 Common Area Improvements not included in Final Engineering for Site Work for Lessor's Approval (includinf landscaping, site lighting and common area signage) | 08/06 to 12/06 |
Approval of Proposed Final Plans and Specifications for Parcels SE-lB-2/SE-1B-3 Common Area Improvements not included in Final Engineering for Site Work (including landscaping, site lighting and common area signage) | Within the time periods provided in Section 12.2 after delivery to Lessor for approval |
Delivery of Proposed Final Plans and Specifications for Parcels SE-1B-2/SE-1B-3 Common Area Improvements not included in Final Engineering for Site Work for Lessor's Approval (includinf landscaping, site lighting and common area signage) | 12/06 to 06/07 |
Approval of Final Plans and Specifications for Parcels SE-lB-2/SE-1B-3 Common Area Improvements not included in Final Engineering for Site Work for Lessor's Approval (including landscaping, site lighting and common area signage) | Within the time periods provided in Section 12.2 after delivery to Lessor for approval |
Construction of Parcels SE-I B-2/SE- l B-3 Common AreaImprovementsnotincludedm theFinal Engineering for Site Work (includin3 landscaping, site lighting and common area signage) | 06/07 to 12/07 |
3 Note: To the extent this obligation has been perfonned by the lessee W1der the Parcel SE-IB-3 Ground Lease, Lessee shall be relieved of any obligation to deliver such Final Plans and Specifications or Final Engineering.
700028-2
Exhibit F
Form of L tter of CrccJit
IRREVOCABLE LETTER OF CREDIT12
Amount: 4 Expiration Date: 5
APPLICANT:6
[Name] [Address]
RE:[Identify Project] Dear Sir:
BENEFICIARY:
Divine Word Techny Community Corporation
1985 Waukegan Road
Northbrook, Illinois 60062
The undersigned Bank hereby establishes in your favor our Irrevocable Letter
No.
7 which is available for negotiation of your sight draft drawn on
,,8
bearing the clause: "Drawn under 9 Irrevocable Letter of Credit No. . "10 and accompanied by:
A statement signed by the President or a Vice President of the Divine Word Techny Community Corporation, an Illinois not-for-profit corporation (or an
This is the fonn letter of credit for the Lessor's Beneficiary. Letters of Credit which vary from the tenns of this form will not be accepted.
2 | Insert letter of credit number (optional). Insert date of issuance. |
4The amount of the letter of credit shall be 110% of the most current estimate for the cost of the Work as
determined pursuant to clause (3) of Section 5.3(a)(i), Section 5.3{a)(iv) or clause (2) of Section 12.1 (a)(v) of the Lease.
The expiration date shall be two years after the date of issuance of the letter of credit.
6Insert name and address of applicant.
7Insert number.
Insert name of issuer.
9Insert name of issuer.
10Insert number.
authorized officer of the then beneficiary of the Lessor under that certain Ground Lease for Parcel SE-IB-2 dated as of May 31, 2006 between CHICAGO TITLE LAND TRUST COMPANY, not personally, but as trustee under a Trust Agreement dated May 31, 2006 and known as Trust No. 1114332, and FCL Founders Drive, LLC, an Illinois limited liability company) stating as follows:
Lessee has failed to complete the Work in accordance with [Section 5.3 or Article 12 -- choose correct reference, depending on when Letter of Credit is provided] of that certain Ground Lease for Parcel SE-1B-2 dated as of May 31, 2006 between CHICAGO TITLE LAND TRUST COMPANY, not personally, but as trustee under a Trust Agreement dated May 31, 2006 and known as Trust No. 1114332, and FCL Founders Drive, LLC, and the time periods provided in Section 17.l(e) of said Ground Lease have passed.
Notwithstanding the expiration date stated above, this Letter of Credit shall continue in full force and effecf and shall not expire unless and until the Lessor's Beneficiary has been given written notice by certified mail, return receipt requested, that the Letter of Credit shall thereafter expire 35 days after said notice, but no sooner than the above-described expiration date.
The undersigned, ...,,11 hereby undertakes and engages that all demands made in conformity with this Irrevocable Letter of Credit will be duly honored upon presentation. If, within 3 business days of the date any demand made in conformity with this Irrevocable Letter of Credit is presented the undersigned, _,12 fails to honor the same (unless legally precluded from doing so), we agree to pay all attorney's fees, court costs and other expenses incurred by the Lessor's Beneficiary in enforcing the terms of this Letter of Credit.
The amount of this Letter of Credit may be reduced from time to time prior to expiration at the request of the applicant, upon presentation of the Lessor's Beneficiary's officially signed consent thereto.
We hereby engage with drawers that drafts drawn and negotiated in conformity with the terms of this credit will be duly honored on presentation and that drafts accepted within the terms of this credit will be duly honored at maturity. This letter of credit must be presented with each draft so that the amount of the draft may be endorsed on the reverse side hereof by the undersigned.
To the extent not inconsistent with the express terms hereof, this Letter of Credit shall be governed by, and construed in accordance with, the terms of the International Standby Practices 1998, International Chamber of Commerce Publication No. 590 ("ISP"). As to matters not governed by the ISP, this Letter of Credit shall be governed by, and construed in accordance with, the Jaws of the State of Illinois, including, without limitation, the Uniform Commercial Code as in effect in the State of Illinois.
11Insert name of issuer.
12Insert name of issuer.
No consent, acknowledgment, or approval by the Applicant or any other person shall be necessary or required prior to honoring any draft presented in conformance with the terms of this Letter of Credit.
Very truly yours,
13
By: ..,..,- _ President14
ATTEST:
By: _ Secretary
CORPORATE SEAL
13Insert name of issuer.
14Or other authorized officer.
700028-2
Exhibit G
f'prrn of Guaranty
GUARANTY OF PAYMENT
AND PERFORMANCE OF GROUND LEASE OBLIGATIONS
THISGUARANTY("Guaranty")ismadeasof by
("Guarantor"), to and for the benefit of CHICAGO TITLE LAND TRUST COMPANY, not personally, but as trustee ("Trustee") under a trust agreement dated May 31, 2006 and known as Trust No. 1114332 ("Trust"), and its successors and assigns, and the beneficiary or beneficiaries from time to time of the Trust (Trustee, as trustee of the Trust and its successors and assigns and the beneficiary or beneficiaries from time to time of the Trust are hereinafter called ..Lessor").
RECITALS
Trustee, as trustee of the Trust, is the lessor ("Lessor") under that certain Ground Lease dated as of May 31, 2006, under which FCL Founders Drive, LLC ("Lessee") is presently the lessee· (said ground lease and any and all present and future modifications and renewals or extensions thereof, amendments thereto and substitutions or replacements therefor, are referred to herein as the "Lease").1
1 Alternative language.
| A. | Trustee, as trustee of the Trust, is the lessor {"Lessor'') under that certain Ground Lease dated as of |
_, 2006, under which ("Lessee") is presently the lessee (said ground lease and any and all present and future modifications and renewals or extensions thereof, amendments thereto and substitutions or replacements therefor, are referred to herein as the "Lease")
[The Lease provides for the development of a {full-service hotel] ("Initial Project") on a certain parcel of real estate in Northbrook, Illinois commonly known as Techny Real Estate Parcel SE-1B-2 in accordance with the Approved Final Plans and Specifications for such Initial Project approved or to be approved by Lessor as provided in the Lease. [Note: modify language to reflect previously constructed Initial Project and an Added Component).
Trustee, as Lessor, is unwilling to [enter into the Lease/approve the Final Plans and Specifications for - Note: or make necessary changes for a Guaranty for
