Exhibit 10.18
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LEASE AGREEMENT
BETWEEN
360 NORTH MICHIGAN TRUST, A DELAWARE BUSINESS TRUST,
AS LANDLORD,
AND
XXXXXXX.XXX, LTD.,
A DELAWARE CORPORATION,
AS TENANT
DATED: SEPTEMBER ____, 1999
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TABLE OF CONTENTS
Page
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LEASE INFORMATION SUMMARY........................................................................................iv
1. LEASE GRANT....................................................................................................1
2. TERM...........................................................................................................1
2.1. Commencement Date.........................................................................................1
2.2. Condition of Premises.....................................................................................1
2.3. INTENTIONALLY DELETED.....................................................................................1
3. RENT...........................................................................................................1
3.1. Base Rent.................................................................................................1
3.2. Additional Rent...........................................................................................2
3.3. Payment...................................................................................................4
4. SECURITY DEPOSIT...............................................................................................4
4.1. INTENTIONALLY DELETED.....................................................................................4
4.2. Letter of Credit..........................................................................................4
4.3. INTENTIONALLY DELETED.....................................................................................5
5. LANDLORD'S OBLIGATIONS.........................................................................................5
5.1. Services..................................................................................................5
5.2. Utilities.................................................................................................5
5.3. Excess Utility Use........................................................................................6
5.4. Restoration of Services...................................................................................6
6. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE................................................................6
6.1. Improvements; Alterations.................................................................................6
6.2. Repairs and Maintenance...................................................................................7
6.3. Performance of Work.......................................................................................7
6.4. Mechanic's Liens..........................................................................................7
7. USE............................................................................................................8
8. ASSIGNMENT AND SUBLETTING......................................................................................8
8.1. Transfers; Consent........................................................................................8
8.2. Recapture.................................................................................................9
8.3. Additional Compensation..................................................................................10
9. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY....................................................................10
9.1. Insurance................................................................................................10
9.2. Waiver of Negligence; No Subrogation.....................................................................11
9.3. Indemnity by Tenant......................................................................................11
10. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE....................................................11
10.1. Subordination...........................................................................................11
10.2. Attornment..............................................................................................11
10.3. Notice to Landlord's Mortgagee..........................................................................12
11. RULES AND REGULATIONS........................................................................................12
12. CONDEMNATION.................................................................................................12
12.1. Total Taking............................................................................................12
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12.2. Partial Taking --Tenant's Rights........................................................................12
12.3. Partial Taking --Landlord's Rights......................................................................12
12.4. Award...................................................................................................13
13. FIRE OR OTHER CASUALTY.......................................................................................13
13.1. Landlord's Rights.......................................................................................13
13.2. Repair Obligation.......................................................................................13
14. PERSONAL PROPERTY TAXES......................................................................................14
15. DEFAULT......................................................................................................14
15.1. Events of Default.......................................................................................14
15.2. Default Interest........................................................................................14
16. REMEDIES.....................................................................................................15
16.1. Right To Terminate......................................................................................15
16.2. Receipt Of Money After Termination......................................................................15
16.3. Recovery Of Damages.....................................................................................15
16.4. Right To Re-Enter.......................................................................................15
16.5. Independent Covenant....................................................................................16
16.6. Legal Expenses..........................................................................................16
17. PAYMENT BY TENANT; NON-WAIVER................................................................................16
17.1. Payment by Tenant.......................................................................................16
17.2. No Waiver...............................................................................................17
18. SURRENDER OF PREMISES........................................................................................17
19. HOLDING OVER.................................................................................................17
20. CERTAIN RIGHTS RESERVED BY LANDLORD..........................................................................17
21. MISCELLANEOUS................................................................................................19
21.1. Landlord Transfer.......................................................................................19
21.2. Landlord's Liability....................................................................................19
21.3. Force Majeure...........................................................................................20
21.4. Brokerage...............................................................................................20
21.5. Estoppel Certificates...................................................................................20
21.6. Notices.................................................................................................21
21.7. Severability............................................................................................21
21.8. Amendments; and Binding Effect..........................................................................21
21.9. Quiet Enjoyment.........................................................................................21
21.10. No Merger..............................................................................................21
21.11. No Offer...............................................................................................21
21.12. Entire Agreement.......................................................................................22
21.13. Calendar Days..........................................................................................22
21.14. Prohibition Against Leasehold Mortgages................................................................22
21.15. Waiver of Trial by Jury................................................................................22
21.16. Landlord's RemediesG30mulative.........................................................................22
21.17. Prohibition Against Recordation........................................................................22
21.18. Joint and Several Liability............................................................................23
21.19. Corporate Tenants......................................................................................23
21.20. Option to Renew........................................................................................23
21.21. Right of First Refusal.................................................................................23
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EXHIBIT A - OUTLINE OF PREMISES
EXHIBIT B - BUILDING RULES AND REGULATIONS
EXHIBIT C - LETTER OF CREDIT
EXHIBIT D - ESTOPPEL CERTIFICATE
EXHIBIT E - INTENTIONALLY DELETED
EXHIBIT F - WORKLETTER
EXHIBIT G - CERTIFICATE OF COMMENCEMENT DATE
EXHIBIT H - SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
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LEASE INFORMATION SUMMARY
I. LEASE DATE September ____, 1999
II PARTIES AND ADDRESSES
A. LANDLORD: 000 Xxxxx Xxxxxxxx Trust, a Delaware business trust
c/o Xxxxxxx Xxxxxxx-Xxxxxxx Management Corporation
B. LANDLORD'S ADDRESS FOR NOTICES: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Manager
With copies to:
Mr. J. Xxxx Xxxxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
And to:
Xxxxx, Xxxxxx & Xxxxxx, LLP
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. XxXxxxxxx, Esq.
And to:
Much Shelist Freed Xxxxxxxxx Xxxxx & Xxxxxxxxxx, P.C.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
C. TENANT: Xxxxxxx.xxx, Ltd.
D. TENANT'S ADDRESS FOR NOTICES: 00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxx Xxxxxxxxxx
E. GUARANTOR: None
III. PROPERTY INFORMATION
A. BUILDING: 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
including all related land, landscaped areas, driveways,
parking facilities and similar improvements to the extent
applicable
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B. PREMISES: Suite No. 1300 in the Building comprising approximately
five thousand two hundred ninety-three (5,293) rentable
square feet (Section 1)
IV. TERM
A. TERM OF LEASE: Five (5) years beginning on the Commencement Date and
ending on the Termination Date; provided, however, if the
Commencement Date occurs on any date which is not the first day
of a calendar month, then the Term shall be increased to five
(5) years plus a partial month beginning on the Commencement
Date through and including the last day of the calendar month in
which the Commencement Date occurs (Section 2)
B. COMMENCEMENT DATE: Xxx xxxxxxx xx (x) Xxxxxxxx 0, 0000, xx (xx) the date on
which the Premises have been substantially completed and are
ready for occupancy by Tenant (Section 2)
C. TERMINATION DATE: The date preceding the fifth (5th) anniversary of the
Commencement Date, unless the Commencement Date occurs on any
date which is not the first day of a calendar month, in which
event the Termination Date shall be the last day of the calendar
month in which the fifth (5th) anniversary of the Commencement
Date falls (Section 2)
V. RENT
A. BASE RENT: $23.25 per square foot, subject to $0.50 per square foot annual
escalations commencing in the second lease year;
$123,062.25 per year ($10,255.19 per month; $23.25 per sq. ft.)
during the first lease year;
$125,708.75 per year ($10,475.73 per month; $23.75 per sq. ft.)
during the second lease year;
$128,355.25 per year ($10,696.27 per month; $24.25 per sq. ft.)
during the third lease year;
$131,001.75 per year ($10,916.81 per month; $24.75 per sq. ft.)
during the fourth lease year; and
$133,648.25 per year ($11,137.35 per month; $25.25 per sq. ft.)
during the fifth lease year (Section 3.1)
B. LANDLORD'S ADDRESS FOR PAYMENT OF Xxxxxxx Xxxxxxx-Xxxxxxx Management Corporation
RENT: A/A/F 000 Xxxxx Xxxxxxxx Trust
0000 Xxxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 (Sections 3.1 and 3.3)
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C. TENANT'S PROPORTIONATE SHARE: two and three one-hundredths percent (2.03%), which equals the
percentage that the rentable square footage of the Premises
(which is stipulated by the parties to be 5,293 square feet)
bears to the total square footage of all rentable office space
in the Building (which is stipulated by the parties to be
260,823 square feet) (Section 3.2)
D. BASE YEAR: 2000 (Section 3.2)
E. OPERATING COSTS ADJUSTMENT: Tenant's Proportionate Share of the amount by which the Operating
Costs incurred during any calendar year during the Term exceed
the Operating Costs incurred during the Base Year. (Section 3.2)
F. TAX ADJUSTMENT: Tenant's Proportionate Share of the amounts by which the Taxes paid
during any calendar year of the Term exceed the Taxes paid during the
Base Year (Section 3.2)
VI. OTHER PROVISIONS
A. SECURITY DEPOSIT: Irrevocable standby letter of credit in the following
amounts:
$188,000.00 during the first lease year;
$150,400.00 during the second lease year;
$112,800.00 during the third lease year;
$ 75,200.00 during the fourth lease year; and
$ 37,600.00 during the fifth lease year;
No security deposit or letter of
credit shall be required during
any renewal period (Section 4.2)
B. ELECTRICAL USAGE RATE: Submetered (Section 5.2)
C. PERMITTED USE: General office and administrative use (Section 7)
D. LANDLORD'S BROKER: Xxxxxxx Xxxxxxx-Xxxxxxx Management Corporation (Section
21.4)
E. TENANT'S BROKER: Equis Corporation (Section 21.4)
The summary of lease information set forth above and any addendum and/or
exhibit(s) attached to this Lease are incorporated into and made a part of the
following Lease. Each reference in this Lease to any of the lease information
set forth above means the respective information above, including all of the
terms provided under the particular section of this Lease pertaining to such
information. In the event of any conflict between the summary of lease
information and the provisions of this Lease, the latter will control. All
section references in this summary refer to the sections of the Lease where such
provision is described.
vi
LANDLORD:
000 XXXXX XXXXXXXX TRUST,
a Delaware business trust
By: XXXXXXX XXXXXXX-XXXXXXX MANAGEMENT
CORPORATION, an Illinois
corporation, its agent
By:
-------------------------------------
Its:
-----------------------------------
TENANT:
XXXXXXX.XXX, LTD.,
a Delaware corporation
By:
-------------------------------------
Its:
-----------------------------------
vii
THIS LEASE AGREEMENT (the "LEASE") is made and entered into as of the
Lease Date between Landlord and Tenant. All capitalized terms not otherwise
defined in the body of the Lease have the meanings established in the Lease
Information Summary above.
1. LEASE GRANT.
Subject to the terms of this Lease, Landlord leases to Tenant and
Tenant rents from Landlord the Premises in the Building. The Premises are
outlined on the floor plan attached to this Lease as EXHIBIT A.
2. TERM.
2.1. COMMENCEMENT DATE.
The term of this Lease (the "TERM") will commence on the Commencement
Date and will end on the Termination Date. Upon taking occupancy of the
Premises, Tenant agrees to sign the Certificate of Commencement Date attached to
this Lease as EXHIBIT G confirming the Commencement Date and the Termination
Date. If the Premises are not ready for occupancy by Tenant on the Commencement
Date for any reason other than a "Tenant Delay" (as defined in the Workletter,
if any, attached to this Lease as EXHIBIT F (the "WORKLETTER"), then (a)
Tenant's obligation to pay Base Rent and Additional Rent (as defined in Section
3 below) will be waived until the Possession Date, which is the earlier of (i)
three (3) business days after Landlord notifies Tenant that the Premises are
"substantially completed" (as defined in this Section 2.1), or (ii) the date
Tenant moves into the Premises; (b) the Term will be extended by the time
between the scheduled Commencement Date and the Possession Date; and (c)
Landlord will not be in default under this Lease, or be liable for damages as a
result of any delay. For purposes of this Section 2.1, substantial completion
means that state of completion of the Premises which will, except for any
special finishing work to be performed, allow Tenant to utilize the Premises for
the purpose permitted under this Lease.
2.2. CONDITION OF PREMISES.
Tenant's acceptance of possession of the Premises will be deemed
conclusive evidence that Tenant has approved and accepted the Premises in their
"AS-IS" condition on the date Tenant accepts possession. Landlord has no
obligation to make any changes or improvements to the Premises except as set
forth in the Workletter. The cost of any such changes and/or improvements will
be paid for by Tenant in the manner set forth in the Workletter.
2.3. INTENTIONALLY DELETED.
3. RENT.
3.1. BASE RENT.
Base Rent is payable by Tenant throughout the Term in the amounts and
at the times set forth in the Lease Information Summary above. The first monthly
installment of Base Rent is due and payable contemporaneously with the execution
of this Lease; subsequently, Base Rent is payable no later than the first day of
each month beginning on the second full calendar month of the Term. The monthly
Base Rent for any partial month at the beginning of the Term will equal the
product of 1/365 of the annual Base Rent in effect during the partial month
multiplied by the number of days in the partial month from and after the
Commencement Date.
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3.2. ADDITIONAL RENT.
(a) PAYMENT OF ADDITIONAL RENT. Commencing on January 1st of
the calendar year immediately following the Base Year, Tenant will pay
to Landlord as Additional Rent ("ADDITIONAL RENT") the Operating Costs
Adjustment and the Tax Adjustment, which will be calculated and
determined by Landlord as set forth below.
(b) DEFINITION - OPERATING COSTS. The term "OPERATING COSTS"
means all expenses and disbursements (subject to the limitations set
forth below) that Landlord incurs in connection with the ownership,
operation, maintenance and management of the Building, determined in
accordance with sound accounting principles consistently applied,
including, but not limited to, the following costs: (1) wages and
salaries (including management fees and reimbursements of expenses
incurred by Landlord's management agent and not otherwise reimbursed by
other tenants) of all employees engaged in the operation, maintenance,
and security of the Building at or below the level of general manager,
including taxes, insurance and benefits relating to such costs; (2) all
uniforms, supplies, tools and materials used exclusively in the
operation, supervision, maintenance, repair, replacement and security
of the Building; (3) costs for improvements made to the Building which,
although capital in nature, are expected to reduce the normal operating
costs of the Building, as well as capital improvements made in order to
comply with any law, statute, ordinance, code, regulation or insurance
requirement(s) promulgated by any governmental authority, as amortized
over the useful economic life of such improvements as determined by
Landlord in its reasonable discretion; (4) cost of all utilities,
except the cost of utilities reimbursable to Landlord by the Building's
tenants; (5) insurance expenses; (6) repairs, replacements, and general
maintenance of the Building, including costs of inspecting and
depreciation of machinery and equipment; (7) service or maintenance
contracts and/or agreements for the operation, maintenance, repair,
replacement, or security of the Building (including, without
limitation, alarm service, window washing, landscaping, elevator
maintenance, HVAC system maintenance, security, cleaning, trash
removal, sweeping and snow removal); (8) legal, accounting, engineering
and other professional fees and expenses relating to managing and
maintaining the Building; (9) costs, including reasonable attorney's
fees, incurred in contesting, protesting, attempting to reduce and/or
attempting to restrict increases in taxes; and (10) all other costs
properly constituting operating costs according to sound accounting
principles consistently applied.
(c) EXCLUSIONS FROM OPERATION COSTS. Operating Costs do not
include costs for (1) capital improvements made to the Building (except
capital improvements described in Section 3.2(b)(3) above; (2) repair,
replacements and general maintenance paid by proceeds of insurance or
by Tenant or other third parties; (3) interest, principal, amortization
or other payments on loans to Landlord, except for interest payments
made in connection with Subsection 3.2(b)(3) above; (4) depreciation;
(5) real estate brokerage and/or leasing commissions and promotional or
marketing expenses; and (6) renovations, alterations or improvements to
the space of other tenants or occupants of the Building or vacant space
in the Building.
(d) DEFINITION - TAXES. The term "TAXES" means all taxes,
assessments, and governmental charges payable in a calendar year,
regardless when such Taxes become a lien upon the Building, including
but not limited to all real estate and transit district taxes and
assessments, sewer charges, sales and use taxes, ad valorem taxes,
personal property taxes, the Illinois Property Replacement Tax and any
other taxes and
2
assessments attributable to the Building (or its operation), the
grounds, parking areas, driveways, and alleys around the Building, but
excluding any federal and state taxes on the income of Landlord from
the operation of the Building. If the present method of taxation
changes so that in lieu of the whole or any part of any Taxes, there is
levied on Landlord a capital tax directly on the rents received from
the Building or a franchise tax, assessment, or charge based, in whole
or in part, upon such rents for the Building, then all such taxes,
assessments, or charges, or the part of such taxes so based, will be
deemed to be included within the term "Taxes" for purposes of this
Lease.
(e) PAYMENT OF ADDITIONAL RENT. Landlord will make a good
faith estimate of the Additional Rent to be due from Tenant for all or
part of any calendar year during the Term, and Tenant agrees to pay to
Landlord, on the Commencement Date and on the first day of each
subsequent calendar month during the Term, an amount equal to 1/12th of
the estimated Additional Rent for such full or partial calendar year.
From time to time, Landlord may estimate and re-estimate the Additional
Rent to be due from Tenant and deliver a copy of the estimate or
re-estimate to Tenant. Subsequently, the monthly installments of
Additional Rent payable by Tenant will be appropriately adjusted in
accordance with Landlord's estimations so that by the end of the
calendar year in question Tenant will have paid all of the Additional
Rent as estimated by Landlord. By April 1 of each calendar year, or as
soon after that date as practicable, Landlord will furnish to Tenant a
statement of Operating Costs paid for the previous year, adjusted as
provided in Section 3.2(f) below (the "OPERATING COSTS STATEMENT"). By
September 1 of each calendar year, or as soon after that date as
practicable, Landlord will furnish to Tenant a statement of the Taxes
paid for the previous year, adjusted as provided in Section 3.2(f)
below (the "TAX STATEMENT"). If the Operating Costs Statement and/or
the Tax Statement reveal(s) that Tenant paid more in Operating Costs
Adjustment or Tax Adjustment than the actual amount for the year for
which such statement was prepared, then Landlord will promptly credit
Tenant for such excess. Likewise, if Tenant paid less in Operating
Costs Adjustment than the actual amount for the year for which such
statement was prepared, then Tenant shall pay such deficiency to
Landlord within ten (10) days after Landlord's demand. This provision
will survive the Termination Date of this Lease.
(f) OCCUPANCY AND TAX ADJUSTMENT. With respect to any calendar
year or partial calendar year in which the Building is not fully
occupied, the Operating Costs and/or Taxes for such period will, for
the purposes of this Lease, be increased to the amount which would have
been incurred had the Building been fully occupied.
(g) AUDIT OF BOOKS AND RECORDS. Landlord shall maintain books
and records with respect to Operating Costs and Taxes in accordance
with sound accounting and management practices. Tenant shall have the
right to examine such books and records showing the Operating Costs and
Taxes upon reasonable prior notice to Landlord and during normal
business hours within thirty (30) days following the delivery of the
Operating Costs Statement and the Tax Statement described in Section
3.2(e) above. Unless Tenant takes written exception to any item of
Operating Costs or Taxes and specifies to Landlord in detail the
reasons for such exception as to a particular item within thirty (30)
days after the delivery of the Operating Costs Statement and the Tax
Statement, the Operating Costs Statement and the Tax Statement shall be
considered as final and accepted by Tenant. Notwithstanding any
exception made by Tenant, Tenant shall pay to Landlord the full amount
of the Operating Costs Adjustment and the
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Tax Adjustment, subject to readjustment at such time as any such
exception may be resolved. If Tenant takes exception to the Operating
Costs Adjustment and/or the Tax Adjustment and so notifies Landlord in
writing prior to the expiration of said thirty (30) day period, then
Landlord will seek certification from Landlord's independent certified
public accountant or consultant as to the proper amount of the
Operating Costs Adjustment and/or the Tax Adjustment. In such event,
the certification obtained by Landlord shall be considered final and
binding on both Landlord and Tenant and Tenant shall reimburse Landlord
immediately upon demand for the cost of obtaining such certification,
unless the certification reveals that the Operating Costs Adjustment
and/or the Tax Adjustment were overstated by at least five percent
(5%), in which event the cost of obtaining such certification shall be
borne by Landlord.
3.3. PAYMENT.
Tenant agrees to timely pay to Landlord during the Term Base Rent,
Additional Rent and all additional sums to be paid by Tenant to Landlord under
this Lease (collectively the "RENT"), without notice, demand, abatement,
deduction, setoff or counterclaim, at Landlord's Address for Payment of Rent or
as otherwise specified by Landlord. Tenant further agrees to pay a late fee
equal to three percent (3%) of any delinquent payment to reimburse Landlord for
its cost and inconvenience incurred as a consequence of Tenant's delinquency. In
no event, however, will the charges permitted under this Section 3.3 or
elsewhere in this Lease, to the extent they are considered to be interest under
law, exceed the maximum lawful rate of interest.
4. SECURITY DEPOSIT.
4.1. INTENTIONALLY DELETED.
4.2. LETTER OF CREDIT.
As an alternative to the cash payment set forth in Section 4.1 above,
Landlord may require Tenant to deliver to Landlord, simultaneously with the
execution of this Lease, a letter of credit (the "LETTER OF CREDIT") in the
amount of the Security Deposit as security for the prompt, full and faithful
performance by Tenant of the terms and provisions of this Lease, subject to the
following provisions:
(a) FORM AND ISSUER. The Letter of Credit must be a
clean, unconditional, stand-by, irrevocable Letter of Credit in favor of
Landlord in substantially the form attached as EXHIBIT C, issued by a federally
insured national banking association which is acceptable to Landlord in all
respects.
(b) EXPIRATION; EXTENSION OR REPLACEMENT. The Letter of
Credit must: (i) have an expiration date no earlier than the Termination Date of
this Lease, or (ii) be renewed annually through the Termination Date, in which
event Tenant must submit to Landlord original amendments extending the Letter of
Credit expiration date (or replacement Letters of Credit with extended
expiration dates), on an annual basis no later than thirty (30) days prior to
the expiration date of the Letter of Credit then in effect. Failure to so extend
the expiration date of the Letter of Credit in the foregoing manner will, in
addition to all of Landlord's other remedies, entitle Landlord to draw down the
Letter of Credit without notice to Tenant and to hold or apply the proceeds as
provided in this Lease.
(c) DRAWS. If Tenant violates this Lease, Landlord may,
but is not obligated to, draw down on all or a portion of the Letter of Credit
without notice to Tenant and apply the proceeds to the payment of any sum owing
or any other sum which Landlord may be required or deems necessary to spend or
incur by reason of such violation. If Landlord draws upon the
4
Letter of Credit and any portion of the proceeds of such draw is not required
for such purposes, Landlord will treat such unused proceeds as a cash security
deposit, as security for the full and prompt performance by Tenant of the terms
and covenants of this Lease and apply the same as provided in Section 4.1 above.
Following any such application of the Security Deposit as described above,
Tenant agrees to pay to Landlord on demand the amount so applied in order to
restore the Security Deposit to its original amount. Provided that Tenant has
performed all of its obligations under this Lease, Landlord will, within thirty
(30) days after the end of the Term, return the Letter of Credit to Tenant. If
Landlord transfers its interest in the Premises and the transferee assumes
Landlord's obligations under this Lease, then Landlord will assign the Security
Deposit to the transferee and Landlord subsequently will have no further
liability for the return of the Letter of Credit.
4.3. INTENTIONALLY DELETED.
5. LANDLORD'S OBLIGATIONS.
5.1. SERVICES.
Landlord will furnish to the Premises (1) water at those points of
supply provided for general use of tenants of the Building; (2) heating and air
conditioning between 8:00 a.m. and 6:00 p.m. on weekdays and from 8:00 a.m. to
1:00 p.m. on Saturdays (collectively "NORMAL BUSINESS HOURS"); (3) janitorial
service to the Premises on weekdays, other than holidays, for Building-standard
installations and such window washing as may, from time to time, be reasonably
required; (4) passenger elevators for ingress and egress, provided that Landlord
may reasonably limit the number of operating elevators during non-business hours
and holidays; and (5) electrical current for Tenant's equipment in a sufficient
quantity to meet normal office usage, provided that Tenant will be responsible
for the cost of any additional electrical requirements beyond the usage
contemplated under this Lease in accordance with Section 5.3 below. Landlord
will maintain the common areas of the Building in reasonably good order and
condition, except for damage caused by Tenant, or its employees, agents or
invitees. If Tenant desires any heating or air conditioning at any time other
than during Normal Business Hours, then such services will be supplied to Tenant
upon the written request of Tenant delivered to Landlord not less than
twenty-four (24) hours prior to the business day preceding such extra usage, and
Tenant, upon demand from Landlord, will pay Landlord for such services, at rates
determined by Landlord from time to time. Landlord and Tenant acknowledge that
Tenant has access to the Building twenty-four (24) hours a day, seven (7) days a
week.
5.2. UTILITIES.
If the respective utilities are not separately metered at the Premises
and billed directly to Tenant by the service provider, then Tenant will pay
directly to Landlord as Rent, upon demand by Landlord, the cost of all utilities
used or consumed at, on or in the Premises. Such cost will be computed by
multiplying the Electrical Usage Rate then in effect times the square footage of
the Premises, or as adjusted by Landlord from time to time. If the respective
utilities are separately metered at the Premises, then Tenant shall pay directly
to each provider of such utilities the cost of all utilities used or consumed
at, on or in the Premises as and when the charges for the same become due and
payable. If Tenant fails to pay for any of the above services when the same
become due and payable, Landlord will have the right but not the duty to pay the
same, which amount so paid will be deemed Rent and will be payable immediately
upon demand from Landlord. Tenant agrees to (i) keep and cause to be kept closed
all windows in the Premises, (ii) at all times cooperate fully with Landlord in
the operation of the
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heating and air conditioning systems, and (iii) abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the proper
functioning and protection of the heating and air conditioning systems.
5.3. EXCESS UTILITY USE.
Landlord is not required to furnish electrical current for equipment
whose electrical energy consumption exceeds normal office usage. If Tenant's
requirements for or consumption of electricity exceed the electricity to be
provided by Landlord as described in Section 5.1 above, Landlord will, at
Tenant's expense, make reasonable efforts to supply such service through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant agrees to pay to Landlord the cost of such service within ten days after
Landlord has delivered to Tenant an invoice for such services. Landlord may
determine the amount of such additional consumption and potential consumption by
any verifiable method, including installation of a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's expense.
Tenant may not install any electrical equipment requiring special wiring or
requiring voltage in excess of normal office usage or otherwise exceeding
Building capacity unless approved in advance and in writing by Landlord, which
approval will be within Landlord's sole discretion. Tenant agrees not to use
electricity in the Premises which exceeds the capacity of existing feeders and
risers to or wiring in the Premises. If approved by Landlord, any risers or
wiring required to meet Tenant's excess electrical requirements will be
installed by Landlord, upon Tenant's request and at Tenant's cost, if, in
Landlord's judgment, the same are necessary and will not cause permanent damage
to the Building or the Premises, cause or create a dangerous or hazardous
condition, entail excessive or unreasonable alterations, repairs, or expenses,
or interfere with or disturb other tenants of the Building. If Tenant uses
machines or equipment in the Premises which affect the temperature otherwise
maintained by the air conditioning system or otherwise overload any utility,
Landlord may install supplemental air conditioning units or other supplemental
equipment in the Premises, and such cost, including the cost of installation,
operation, use, and maintenance, will be paid by Tenant to Landlord within ten
(10) days after Landlord has delivered to Tenant an invoice for such cost.
5.4. RESTORATION OF SERVICES.
Landlord agrees to use reasonable efforts to restore any service that
becomes unavailable. Such unavailability will not, however, render Landlord
liable for any damages, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or entitle Tenant to any abatement of Tenant's
obligations under this Lease.
6. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
6.1. IMPROVEMENTS; ALTERATIONS.
Landlord will afford Tenant an allowance of $30.00 per rentable square
foot to cover the cost of certain non-structural, tenant improvements, including
all architectural related fees, to be made to the Premises by Tenant, as more
particularly described in the Workletter. The cost of any tenant improvements
and all fees and expenses relating thereto in excess of the amount of said
allowance shall be borne and paid for by Tenant. Landlord will enter into a
contract with the general contractor to perform the alterations and tenant
improvements. No other alterations or physical additions in or to the Premises
may be made without Landlord's prior written consent. Landlord may withhold its
consent to any alteration or addition that could affect the Building's structure
or its HVAC, plumbing, electrical or mechanical systems. Tenant may not paint or
install lighting, signs, window or door lettering, or advertising media of any
type on or about the
6
Premises without the prior written consent of Landlord. Landlord may withhold
its consent to any such painting or installation which could affect the
appearance of the exterior of the Building or of any common areas of the
Building. All alterations, additions, and improvements installed in the Premises
must be (i) performed at Tenant's expense and only in accordance with plans and
specifications which have been previously submitted to and approved in writing
by Landlord, and (ii) constructed, maintained and used by Tenant at its own risk
and expense in accordance with all laws. Landlord's approval of the plans and
specifications is not a representation by Landlord that such alterations,
additions, or improvements comply with any law. Prior to commencing any work,
Tenant agrees to pay to Landlord a supervisory and administrative fee equal to
five percent (5%) of the cost of any alterations, additions or improvements
performed by Tenant subsequent to the tenant improvements described in the
Workletter. Tenant agrees that it will remove or cause its contractor(s) to
remove all waste and debris from the Premises upon the completion of any
alterations, additions or improvements.
6.2. REPAIRS AND MAINTENANCE.
Tenant agrees to maintain the Premises in a clean, safe, and operable
condition, and will not permit or allow to remain any waste or damage to any
portion of the Premises. Tenant agrees to pay for the cost of repairing or
replacing, subject to Landlord's direction and supervision, any damage to the
Premises and the Building caused by Tenant, Tenant's employees, Tenant's
transferees, or their respective agents, contractors, or invitees. If Tenant
fails to make such repairs or replacements within twenty (20) days after the
occurrence of such damage, then Landlord may make the same at Tenant's cost. If
any such damage occurs outside of the Premises, then Landlord may elect to
repair such damage at Tenant's expense, rather than having Tenant repair such
damage. The cost of all repair or replacement work performed by Landlord under
this Section 6.2 must be paid by Tenant to Landlord, together with a supervisory
and administrative fee equal to five percent (5%) of the cost of the repair or
replacement work performed by Landlord, within twenty (20) days after Landlord
has invoiced Tenant for such cost and will constitute Rent under this Lease.
6.3. PERFORMANCE OF WORK.
Only Landlord or contractors and subcontractors approved in writing by
Landlord may perform the work described in this Section 6. Tenant will cause all
contractors and subcontractors to procure and maintain insurance coverage naming
Landlord as an additional insured against such risks, in such amounts, and with
such companies as Landlord may reasonably require. All such work must be
performed in accordance with all applicable governmental requirements and in a
good and workmanlike manner so as not to damage the Premises, the Building or
the components of the Building. Tenant agrees to defend, indemnify and hold
Landlord, its trustees, beneficiaries, employees, successors and assigns
harmless from and against any claims, liabilities, damages, losses, costs and
expenses, including but not limited to attorney's fees and court costs, suffered
or incurred by Landlord arising from any of Tenant's alterations, additions or
improvements to the Premises.
6.4. MECHANIC'S LIENS.
Tenant must not permit any mechanic's lien(s) to be filed against the
Premises or the Building for any work performed, materials furnished, or
obligations incurred by or at the request of Tenant. If such a lien is filed,
then, within ten (10) days after Landlord has delivered notice of the filing to
Tenant, Tenant must either pay the amount of the lien or diligently contest such
lien and deliver to Landlord a bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such action, then Landlord may
pay the lien claim, and any amounts so
7
paid, including expenses and interest, will constitute Rent payable by Tenant to
Landlord within ten (10) days after Landlord has invoiced Tenant for such
payment. Tenant agrees to defend, indemnify and hold Landlord, its trustees,
beneficiaries, employees, successors and assigns harmless from and against any
claims, liabilities, damages, losses, costs and expenses, including but not
limited to attorney's fees and court costs, suffered or incurred by Landlord
arising from the presence or removal of any mechanic's lien(s) affecting the
Premises and/or the Building relating to any work performed, materials furnished
or obligations incurred by or at the request of Tenant.
7. USE.
Tenant may use the Premises only for the Permitted Use, and must comply
with all applicable statutes, laws, ordinances, codes, orders, rules and
regulations, as well as all requirements of any of Landlord's insurance
providers, relating to the use, condition and occupancy of the Premises. The
Premises may not be used for any use which (i) is disreputable, creates fire
hazards, or results in an increased rate of insurance on the Building or its
contents; (ii) would violate any covenant, agreement, term, provision or
condition of this Lease or is in contravention of the certificate of occupancy
or zoning ordinances pertaining to the Building; (iii) would alter, affect or
interfere with or would overload the electrical, mechanical or HVAC systems or
any other component of the Building, or would exceed the floor load per square
foot which the floor was designed to carry and which is allowed by law; or (iv)
would, in Landlord's judgment, in any way impair or tend to impair or exceed the
design criteria, structural integrity, character, reputation or appearance of
the Building. Tenant will not conduct or permit the generation, transportation,
storage, installation, treatment or disposal, either in the Building or in the
Premises, of any hazardous or toxic materials, and Tenant will keep the Building
and the Premises free of any lien or claim imposed under any federal, state or
local environmental statute, law, ordinance, code, rule or regulation. If,
because of Tenant's acts, the rate of insurance on the Building or its contents
increases, then such acts will constitute an Event of Default, Tenant must pay
to Landlord the amount of such increase on demand, and acceptance of such
payment will not waive any of Landlord's other rights. Tenant agrees to conduct
its business and control its agents, employees, and invitees in such a manner as
not to create any nuisance or unreasonably interfere with other tenants or
Landlord in its management of the Building.
8. ASSIGNMENT AND SUBLETTING.
8.1. TRANSFERS; CONSENT.
(a) TRANSFERS. Tenant may not do any of the following
without the prior written consent of Landlord, which consent will not
be unreasonably withheld or delayed so long as Landlord determines in
its reasonable discretion that the proposed transferee is of similar
reputable character as Tenant, has a net worth and financial stability
comparable to or better than Tenant, and intends to use the Premises
only for the Permitted Use:
(i) assign, transfer, or encumber this Lease or
any estate or interest in this Lease, whether directly or by
operation of law;
(ii) permit any other entity to become Tenant
under this Lease by merger, consolidation, or other
reorganization; provided, however, Tenant does not need to
obtain Landlord's consent if the transfer is to an affiliate
of Tenant or if, after giving effect to such merger,
consolidation or other reorganization, the
8
minimum tangible net worth of such new entity is the same as
that of Tenant at the beginning of this Lease (a "PERMITTED
TRANSFEREE");
(iii) if Tenant is an entity other than a
corporation whose stock is publicly traded, permit the
transfer of an ownership interest in Tenant so as to result in
a change in the current control of Tenant;
(iv) sublet any portion of the Premises;
(v) grant any license, concession, or other
right of occupancy of any portion of the Premises; or
(vi) permit the use of the Premises by any
parties other than Tenant.
Any of the events listed in Section 8.1(a)(i) through 8.1(a)(vi) above
are referred to as a "TRANSFER".
(b) PROCEDURE TO OBTAIN CONSENT. If Tenant requests Landlord's
consent to a Transfer, then Tenant must provide Landlord with a written
description of all terms and conditions of the proposed Transfer, copies of the
proposed documentation, and the following information about the proposed
transferee: name and address; reasonably satisfactory information about its
business and business history; its proposed use of the Premises; banking,
financial, and other credit information that Landlord may request; and general
references sufficient to enable Landlord to determine the proposed transferee's
creditworthiness and character. Provided Tenant acts promptly to respond to
Landlord's inquires, Landlord will provide Tenant with a written response to
such Transfer request within thirty (30) days after Landlord's receipt of
Tenant's written request. Concurrently with Tenant's request for consent to a
Transfer, Tenant agrees to (i) pay to Landlord an assignment fee in the amount
of Two Hundred Fifty and 00/100 Dollars ($250.00), and (ii) reimburse Landlord
immediately upon its request for all of its direct, third party expenses
(including but not limited to reasonable attorneys' fees and administrative
fees) incurred in connection with considering any request for consent to a
Transfer. Nothing in this Section 8.1(b) may be construed as granting to any
third party the rights of a third-party beneficiary, so as to entitle such third
party to seek to enforce any of the above provisions.
(c) OBLIGATIONS AFTER TRANSFER. If Landlord consents to a proposed
Transfer, then both Tenant and the proposed transferee must (i) deliver to
Landlord a written agreement reasonably acceptable in all respects to Landlord
under which the proposed transferee expressly assumes all of Tenant's
obligations under this Lease, and (ii) if requested by Landlord, execute the
consent form required by Landlord. Landlord's consent to a Transfer will not
release Tenant from its obligations under this Lease, but rather Tenant and its
transferee will be jointly and severally liable for such obligations. Landlord's
consent to any Transfer does not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or any part of the
Premises are subject to a Transfer, then Landlord, in addition to its other
remedies, may collect rent due and owing directly from such transferee and apply
such rent against Rent. Tenant authorizes its transferees to make payments of
rent directly to Landlord upon receipt of notice from Landlord to do so.
8.2. RECAPTURE.
In the event Tenant causes or seeks to cause a Transfer to any third
party other than a Permitted Transferee, Landlord may terminate this Lease and
recapture the applicable space as
9
of the date the proposed Transfer is to be effective, or within thirty (30) days
after the date of Landlord's discovery of the Transfer, as the case may be.
Landlord may exercise this termination and recapture right (i) within ten (10)
days after Landlord's receipt of Tenant's written request for Landlord's
consent, unless Tenant rescinds its request by so notifying Landlord in writing
within ten (10) days after Landlord advises Tenant of Landlord's election to
exercise its termination and recapture right, in which event Landlord will not
exercise its termination and recapture right and Tenant may retain possession of
the applicable space in accordance with this Lease; or (ii) within thirty (30)
days after Landlord learns of such Transfer if Landlord's consent has not been
requested by Tenant. If Landlord terminates this Lease as provided above, then
this Lease will cease and Tenant shall pay to Landlord all Rent accrued through
the Termination Date. Subsequently, Landlord may lease the Premises to the
prospective transferee (or to any other person) without liability to Tenant.
8.3. ADDITIONAL COMPENSATION.
Tenant agrees to pay to Landlord, immediately upon receipt, any and all
funds received by Tenant for a Transfer in excess of the Rent aIlocable to the
Premises.
8.4 INJUNCTIVE RELIEF.
Notwithstanding anything in this Lease to the contrary, in the event
Landlord wrongfully prevents a Transfer by Tenant, or if Landlord commits any
other default under this Section 8, Tenant's sole remedy will be limited to an
action for injunctive relief to permit the Transfer to occur.
9. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
9.1. INSURANCE.
Tenant agrees to maintain throughout the Term the following insurance
policies:
(a) comprehensive general liability insurance in amounts of not
less than a combined single limit of $3,000,000 or such other amounts
as Landlord may, from time to time, reasonably require, insuring
Tenant, Landlord, Landlord's agents and their respective affiliates
against all liability for injury to or death of a person or persons or
damage to property arising from the use and occupancy of the Premises;
(b) insurance covering the full value of Tenant's property and
improvements, and other property (including property of others) in the
Premises;
(c) contractual liability insurance sufficient to cover Tenant's
indemnity obligations under this Lease;
(d) worker's compensation insurance, containing a waiver of
subrogation endorsement acceptable to Landlord; and
(e) business interruption insurance.
Tenant will, prior to taking possession of the Premises and prior to
the commencement of any work in the Premises, furnish Landlord with certificates
of such insurance (which may be provided under blanket coverage) and such other
evidence reasonably satisfactory to Landlord confirming Tenant's maintenance of
all insurance coverages required under this Lease and naming Landlord and any
other parties reasonably requested by Landlord as additional insured(s). Each
certificate must contain a written obligation on the part of each insurance
company to notify Landlord at least thirty (30) days before cancellation or a
material change of
10
any such insurance policies. All such insurance policies must be (i) issued by
insurers authorized to do business in the State of Illinois and which are rated
at least A+XII in Best's Key Rating Guide, and (ii) issued by companies and be
in form and substance reasonably satisfactory to Landlord. The term "AFFILIATE"
means any person or entity, directly or indirectly, controlling, controlled by,
or under common control with the party in question. Tenant acknowledges and
agrees that it is not permitted to self-insure under this Lease.
9.2. WAIVER OF NEGLIGENCE; NO SUBROGATION.
Landlord and Tenant each waives any claim it might have against the
other for damage to or theft, destruction, loss, or loss of use of any property
(a "LOSS"), to the extent the same is insured against under any insurance policy
that covers the Building, the Premises, Landlord's or Tenant's fixtures,
personal property, leasehold improvements, or business, or with respect to such
matters as are required to be insured against under the terms of this Section 9,
regardless of whether the negligence of the other party caused such loss.
Landlord's waiver under this Section 9.2 will not, however, include any
deductible amounts on insurance policies carried by Landlord or to any
coinsurance penalty which Landlord may sustain. Each party will cause its
insurance carrier to endorse all applicable policies waiving the carrier's
rights of recovery under subrogation or otherwise against the other party.
9.3. INDEMNITY BY TENANT.
Tenant agrees to defend, indemnify, and hold Landlord, its trustees,
beneficiaries, employees and agents harmless from and against (i) all claims,
demands, liabilities, causes of action, suits, judgments, and expenses
(including attorneys' fees) for any Loss arising from any occurrence on the
Premises and the Building caused or contributed to by Tenant, its subtenants,
licensees, employees, invitees, contractors and/or agents (collectively
"TENANT'S AFFILIATES"), and (ii) Tenant's or any of Tenant's Affiliates' failure
to perform its obligations under this Lease, except to the extent such Loss was
caused solely by the gross negligence of Landlord or its agents. This indemnity
provision will survive the termination or expiration of this Lease.
10. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
10.1. SUBORDINATION.
This Lease is automatically subordinate to any deed of trust, mortgage
or other security instrument, or any ground lease, master lease or primary
lease, that now or subsequently covers all or any part of the Building without
any further action or writing of the parties (the mortgagee under any such
mortgage or the lessor under any such lease is referred to below as a
"LANDLORD'S MORTGAGEE"). However, any Landlord's Mortgagee may at any time
unilaterally elect to make this Lease superior to its mortgage, ground lease or
other interest in the Premises by so notifying Tenant in writing. As a condition
to Tenant's execution of this Lease, Landlord will cause Landlord's Mortgagee to
sign a subordination, non-disturbance and attornment agreement in the form
attached hereto as EXHIBIT H, and Tenant agrees that it will also execute said
agreement.
10.2. ATTORNMENT.
Tenant agrees to attorn to any party succeeding to Landlord's interest
in the Premises, whether by purchase, foreclosure, deed in lieu of foreclosure,
power of sale, attornment, termination of lease, or otherwise. Within twenty
(20) days after such party's request, Tenant will execute and deliver to the
requesting party a written agreement(s) confirming such attornment. If Tenant
fails to deliver the attornment agreement(s) described herein within the
11
twenty (20) day period, Tenant acknowledges and agrees that Landlord is
authorized to act as Tenant's attorney-in-fact to execute the agreement(s) on
behalf of Tenant, and Tenant will be bound by the terms of the agreement(s)
executed by Landlord.
10.3. NOTICE TO LANDLORD'S MORTGAGEE.
Tenant may not seek to enforce any remedy it may have for any default
on the part of the Landlord without first giving written notice by (i) facsimile
accompanied by acknowledgment of receipt by the recipient, or (ii) certified
mail, return receipt requested, specifying the default in reasonable detail, to
any Landlord's Mortgagee whose address has been given to Tenant, and affording
such Landlord's Mortgagee a reasonable opportunity to perform Landlord's
obligations under this Lease.
11. RULES AND REGULATIONS.
Tenant must comply with the rules and regulations of the Building which
are attached as EXHIBIT B. Landlord may, from time to time, change such rules
and regulations for the safety, care, or cleanliness of the Building and related
facilities, provided that such changes will not unreasonably interfere with
Tenant's use of the Premises. Landlord will uniformly apply the rules and
regulations to all tenants in the Building. Tenant is responsible for the
compliance with such rules and regulations by its employees, agents, and
invitees.
12. CONDEMNATION.
12.1. TOTAL TAKING.
If the entire Building or Premises is taken by right of eminent domain
or conveyed in lieu of eminent domain (a "TAKING"), this Lease will terminate
and Rent will be apportioned as of the date of the Taking, and Tenant will have
no claim against Landlord for the value of the unexpired Term.
12.2. PARTIAL TAKING -- TENANT'S RIGHTS.
If any part of the Building becomes subject to a Taking and such Taking
will prevent Tenant from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such Taking for a
period of more than ninety (90) days, then Tenant may terminate this Lease as of
the date of such Taking by giving written notice to Landlord within twenty (20)
days after the Taking, and Rent will be apportioned as of the date of such
Taking. If Tenant does not terminate this Lease, then Rent will xxxxx on a basis
reasonably determined by Landlord as to that portion of the Premises rendered
untenantable by the Taking.
12.3. PARTIAL TAKING -- LANDLORD'S RIGHTS.
If any material portion but less than all of the Building becomes
subject to a Taking and Landlord makes a good faith determination that (i) such
Taking will prevent Tenant from conducting its business in the Premises in a
manner reasonably comparable to that conducted immediately before such Taking
for a period of more than one hundred fifty (150) days, (ii) restoring the
Premises would be uneconomical, (iii) the condemnation award is insufficient to
rebuild or restore the Building or the Premises, or (iv) Landlord is required to
pay any condemnation award arising from the Taking to any Landlord's Mortgagee,
then Landlord may terminate this Lease by delivering written notice to Tenant
within twenty (20) days after such Taking, and Rent will be apportioned as of
the date of such Taking. If Landlord does not so
12
terminate this Lease, then this Lease will continue, but if any portion of the
Premises has been taken, Rent will xxxxx as provided in the last sentence of
Section 12.2 above.
12.4. AWARD.
If any Taking occurs, then Landlord is entitled to receive the entire
award or other compensation for the land on which the Building is situated, the
Building, and other improvements taken, and Tenant may separately pursue a claim
against the condemnor for the value of Tenant's personal property which Tenant
is entitled to remove under this Lease (but because of the condemnation is
unable to move such property), moving costs, and other claims it may have so
long as such claim does not diminish Landlord's award. In no event may Tenant
seek or file any claim against Landlord.
13. FIRE OR OTHER CASUALTY.
13.1. LANDLORD'S RIGHTS.
If all or any part of the Building and/or the Premises is(are) damaged
by fire or other casualty (a "CASUALTY"), and if Landlord makes a good faith
determination that (i) restoring the Premises would be uneconomical, (ii) there
are insufficient insurance proceeds to rebuild or restore the Building or the
Premises, or (iii) Landlord is required to pay any insurance proceeds arising
out of the Casualty to any Landlord's Mortgagee, then Landlord may terminate
this Lease by giving Tenant written notice of Landlord's election to terminate
(the "CASUALTY TERMINATION NOTICE") within one hundred twenty (120) days after
the Casualty has occurred, and Base Rent and Additional Rent will xxxxx as of
the date of the Casualty, unless Tenant or any of Tenant's Affiliates caused
such damage, in which event Tenant shall continue to pay Rent without abatement.
Such termination shall be effective sixty (60) days after the date of the
Casualty Termination Notice.
13.2. REPAIR OBLIGATION.
If Landlord elects not to terminate this Lease following a Casualty,
then Landlord, within a reasonable time after such Casualty, will proceed with
reasonable diligence to repair, restore or rehabilitate the Building and/or the
Premises, as the case may be, to substantially the same condition as they
existed immediately before such Casualty. However, Landlord will not be required
to repair or replace any of the furniture, equipment, fixtures, and other
leasehold improvements which may have been placed by or at the request of Tenant
or other occupants in the Building or the Premises and required to be insured by
Tenant or other tenants, and Landlord's obligation to repair or restore the
Building and/or the Premises will be limited to the extent of the insurance
proceeds actually received by Landlord for the Casualty in question. In the
event that Landlord elects not to terminate the Lease and Landlord proceeds to
repair the Building and/or the Premises, then Tenant must apply to the
replacement or restoration of the furniture, equipment, fixtures and other
improvements in the Premises (if replacement or restoration is necessary because
of the Casualty) any proceeds of insurance that it may have received from its
policy(ies) on account of the Casualty. During such repair or rebuilding of the
Building and/or the Premises, Rent for the portion of the Premises rendered
untenantable by the damage will be abated on a reasonable basis determined by
Landlord from the date of damage until the completion of the repair, restoration
or rehabilitation, unless the Casualty was caused by Tenant or any of Tenant's
Affiliates, in which event Tenant shall continue to pay Rent without abatement.
13
14. PERSONAL PROPERTY TAXES.
Tenant is liable for all taxes, if any, based upon this Lease or the
receipt of Rent due under this Lease and all taxes levied or assessed against
any personal property, furniture or fixtures placed by Tenant in the Premises.
If any taxes for which Tenant is liable are levied or assessed against Landlord
or Landlord's property and Landlord elects to pay the same, or if the assessed
value of Landlord's property is increased by inclusion of such personal
property, furniture or fixtures and Landlord elects to pay the taxes based on
such increase, then Tenant shall pay to Landlord as Rent, upon demand, the part
of such taxes for which Tenant is primarily liable under this Lease. Landlord
may not, however, pay such amount if Tenant notifies Landlord that it will
contest the validity or amount of such taxes before Landlord makes such payment,
and subsequently diligently proceeds with such contest in accordance with law
and if the non-payment does not pose a threat of lien or other cloud on
Landlord's title to the Building, or threat of loss or seizure of the Building
or interest of Landlord in the Building.
15. DEFAULT.
15.1. EVENTS OF DEFAULT.
Each of the following occurrences will constitute an "EVENT OF
DEFAULT":
(a) Tenant's failure to pay Rent or any other amount due
hereunder on or before the date said payment is due and such default
continues for three (3) days after notice from Landlord which may be
delivered by facsimile or in writing; provided, however, if Tenant
fails to make any such payment on more than two (2) occasions in any
consecutive twelve (12) month period, then no notice of any subsequent
default shall be required from Landlord;
(b) Tenant's failure to perform, comply with, or observe
any other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than twenty (20) days
after Landlord has delivered to Tenant written notice;
(c) The filing of a petition by or against Tenant (the
term "TENANT" includes, for the purpose of this Section 15(c), any
guarantor of the Tenant's obligations under this Lease) (1) in any
bankruptcy or other insolvency proceeding; (2) seeking any relief under
any state or federal debtor relief law; (3) for the appointment of a
liquidator or receiver for all or substantially all of Tenant's
property or for Tenant's interest in this Lease; or (4) for the
reorganization or modification of Tenant's capital structure. If,
however, such a petition is filed against Tenant, then such filing will
not be an Event of Default unless Tenant fails to have the proceedings
initiated by such petition dismissed within sixty (60) days after such
filing;
(d) The failure by Tenant to take possession of the
Premises in accordance with the terms of this Lease;
(e) The discontinuance of its business by Tenant for
thirty (30) or more consecutive days; and
(f) Tenant's vacating or abandoning of the Premises for
thirty (30) or more days during the Term.
15.2. DEFAULT INTEREST.
All past due Rent and any other payments required of Tenant under this
Lease will be deemed Rent and interest will accrue from the date due until paid
at the rate of interest equal to
14
two percent (2%) over the corporate base rate or so-called "prime rate" as
announced from time to time by Bank One Corporation or its successors and
assigns.
16. REMEDIES.
Upon any Event of Default, Landlord may, at its election, in addition
to all other rights and remedies afforded Landlord under this Lease or by law or
equity, take any one or more of the following actions:
16.1. RIGHT TO TERMINATE.
Upon the occurrence of an Event of Default, Landlord has the right to
terminate the Lease and obtain possession of the Premises. Landlord may make its
election to terminate known to Tenant by delivery of a notice of termination.
Such termination is immediately effective and Landlord, if necessary, is
entitled to commence immediately an action in summary proceedings to recover
possession of the Premises.
16.2. RECEIPT OF MONEY AFTER TERMINATION.
No receipt of money by the Landlord from the Tenant after the
termination of this Lease acts to reinstate, continue or extend the Term, nor
affect or waive any notice given by the Landlord to the Tenant prior to such
receipt of money.
16.3. RECOVERY OF DAMAGES.
Landlord agrees to use commercially reasonable efforts to mitigate
damages caused by a default or breach of Tenant. If Landlord at any time
terminates this Lease for any breach, then in addition to any other remedies it
may have, Landlord may recover from Tenant by reason of such breach all Rent and
Additional Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by Tenant under
this Lease. In addition, Landlord may recover as damages for loss of the bargain
and not as a penalty the sum of (i) the unamortized cost to Landlord, computed
and determined in accordance with generally accepted accounting principles, of
any tenant improvements provided by Landlord at its expense, (ii) the aggregate
sum which at the time of such termination represents the excess, if any, of the
present value of the aggregate Rent and Additional Rent at the same annual rate
for the remainder of the Term as then in effect over the then present value of
the then aggregate fair rental value of the Premises for the balance of the Term
immediately prior to such termination, such present worth to be computed in each
case on the basis of a five percent (5%) per annum discount from the respective
dates upon which Rent would have been payable under this Lease had the Term not
been terminated, and (iii) any additional damages, including any costs or
expenditures to fit the Premises to the needs of Tenant, reasonable attorneys'
fees and court costs which Landlord sustains by reason of the breach of any of
the covenants of this Lease other than for the payment of Base Rent and
Additional Rent.
16.4. RIGHT TO RE-ENTER.
If the Event of Default is the nonpayment of Rent, Landlord may, as an
alternative to terminating the Lease, serve a written demand for possession or
payment. Unless the Rent is paid in accordance with the demand for possession or
payment, Landlord is entitled to possession of the premises and Tenant will then
have no further right to possession under the Lease. Tenant remains liable to
Landlord for the payment of all Rent and other charges which Tenant has agreed
to pay under this Lease throughout the remainder of its Term. If Landlord elects
to re-enter, as provided, it may from time to time, without terminating this
Lease, make such alterations and repairs as may be necessary in order to relet
the Premises, and relet all or
15
any part of such Premises for such term or terms (which may be for a term
extending beyond the Term of this Lease) and at such rental or rentals and upon
such other terms and conditions as Landlord in its reasonable discretion may
deem advisable. Upon each such reletting all rentals and other sums received by
Landlord from such reletting are applied, first, to the payment of any
indebtedness other than rent due under this Lease from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting, including
reasonable brokerage fees and attorneys' fees and of costs of such alterations
and repairs; third, to the payment of Rent and other charges due from Tenant,
and the residue, if any, will be held by Landlord and applied in payment of
future rent as the same may become due and payable. If such rentals and other
sums received from such reletting during any month are insufficient to pay the
Rent and other charges due from Tenant, Tenant agrees to pay such deficiency to
Landlord. Such deficiency will be calculated and paid monthly. No such re-entry
or taking possession of such premises by Landlord may be construed as an
election on its part to terminate this Lease. Notwithstanding any such reletting
without termination, Landlord may at any time elect to terminate this Lease for
such previous breach.
16.5. INDEPENDENT COVENANT.
Tenant acknowledges and agrees that its obligation to pay Rent under
this Lease is an independent covenant and that such obligation to pay rent is
not subject to setoff or recoupment in connection with any action for summary
proceedings to recover possession of the Premises.
16.6. LEGAL EXPENSES.
If Landlord or Tenant is required to bring an action arising out of the
covenants, terms, conditions or provisions of this Lease, or if Landlord
undertakes an action for summary proceedings to recover possession of the
Premises, the prevailing party will be reimbursed by the other party for such
reasonable costs and attorneys' fees as the prevailing party may incur in
connection with such action.
17. PAYMENT BY TENANT; NON-WAIVER.
17.1. PAYMENT BY TENANT.
Upon any Event of Default, Tenant agrees to pay to Landlord all costs
incurred by Landlord (including court costs and reasonable attorneys' fees and
expenses) in (1) obtaining possession of the Premises, (2) removing and storing
Tenant's or any other occupant's property, (3) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition acceptable to a new
tenant, (4) if Tenant is dispossessed of the Premises and this Lease is not
terminated, reletting all or any part of the Premises (including brokerage
commissions, cost of tenant finish work, and other costs incidental to such
reletting), (5) performing Tenant's obligations which Tenant failed to perform,
(6) enforcing its rights, remedies, and recourses arising out of the Event of
Default or in obtaining advice about same; and (7) the reasonable value of
Landlord's and its agents' and employees' time in connection with such activity.
To the full extent permitted by law, Landlord and Tenant agree the federal and
state courts of the state in which the Premises and Building are located have
exclusive jurisdiction over any matter relating to or arising from this Lease
and the parties' rights and obligations under this Lease. Tenant agrees to pay
all costs, expenses and reasonable attorneys' fees incurred by Landlord in
successfully enforcing and/or defending any provision contained in this Lease.
16
17.2. NO WAIVER.
Landlord's acceptance of any payment from Tenant following an Event of
Default will be deemed Rent and will not waive Landlord's rights regarding such
Event of Default. No waiver by Landlord of any violation or breach of any of the
terms contained in this Lease will waive Landlord's rights regarding any future
violation of such term. Landlord's acceptance of any partial payment of Rent
will not waive Landlord's rights with regard to the remaining portion of the
Rent that is due, regardless of any endorsement or other statement on any
instrument delivered in payment of Rent or any writing delivered in connection
with such Rent. Accordingly, Landlord's acceptance of a partial payment of Rent
will not constitute an accord and satisfaction of the full amount of the Rent
that is due.
18. SURRENDER OF PREMISES.
No act by Landlord will be deemed an acceptance of a surrender of the
Premises, and no agreement to accept a surrender of the Premises will be valid
unless it is in writing and signed by Landlord. At the expiration or termination
of this Lease, Tenant must deliver to Landlord the Premises with all
improvements in good repair and condition, broom-clean, except for reasonable
wear and tear (and condemnation and Casualty damage not caused by Tenant, as to
which Sections 12 and 13 above control). All alterations, additions,
improvements, equipment, wiring and furniture made in or upon the Premises must,
at Landlord's option upon notice to Tenant, either be removed by Tenant (and
Tenant must repair all damage caused by such removal) or remain on the Premises
without compensation to Tenant. Tenant must also deliver to Landlord all keys to
the Premises. Provided that Tenant has performed all of its obligations under
this Lease, Tenant may remove all unattached trade fixtures and personal
property placed in the Premises by Tenant. Tenant is obligated to repair all
damage caused by such removal. All items not so removed will be deemed to have
been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items. The provisions of this Section 18 will
survive the end of the Term.
19. HOLDING OVER.
If Tenant fails to vacate the Premises at the end of the Term, then
Tenant will be a tenant-at-will and, in addition to all other damages and
remedies to which Landlord may be entitled for such holding over, Tenant must
pay to Landlord a monthly Base Rent for all or any part of a month equal to 150%
of the aggregate Base Rent plus all other Rent payable during the last month of
the Term. Tenant is also responsible for all damages, consequential as well as
direct, incurred or sustained by Landlord by reason of such retention, together
with all costs incurred by Landlord (including but not limited to reasonable
attorneys' fees) in connection with such holdover. In addition, if Tenant holds
over for thirty (30) or more days, then Landlord may elect, upon notice to
Tenant, that such holding over will constitute a renewal of this Lease for one
(1) year at the stated holdover rate, but acceptance by Landlord of Rent after
such termination will not in and of itself constitute a renewal. Nothing
contained in this Section 19, however, will be construed or operate as a waiver
of Landlord's right of re-entry or any other right of Landlord.
20. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord reserves the following rights which may be exercised without
notice (except as otherwise expressly provided below) and without liability to
Tenant for damage or injury to
17
property, person or business, and without effecting an eviction or disturbance
of Tenant's use or possession of the Premises, nor giving rise to any claim for
setoff or abatement or Rent or affecting any of Tenant's obligations under this
Lease:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise,
in and about the Building during ordinary business hours, and if Tenant
desires to have such work done during other than business hours, Tenant
agrees to pay all overtime and additional expenses resulting from such
work; to enter upon the Premises and, during the continuance of any
such work, to temporarily close doors, entryways, public space, and
corridors in the Building; and to interrupt or temporarily suspend
Building services and facilities agreed to be furnished by Landlord,
all without the same constituting an eviction of Tenant in whole or in
part and without abatement of Rent by reason of loss or interruption of
the business of Tenant or otherwise and without in any manner rendering
Landlord liable for damages or relieving Tenant from the performance of
Tenant's obligations under this Lease; provided, however, that
reasonable access to the Premises will be maintained and the business
of Tenant may not be interfered with unreasonably;
(b) To change the name and street address of the Building; and to
change the arrangement and location of entrances or passageways, doors,
and doorways, corridors, elevators, stairs, restrooms, or other public
parts of the Building;
(c) To take such reasonable measures as Landlord deems advisable
for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily
denying access to the Building; and closing the Building after normal
business hours and on Sundays and holidays, subject, however, to
Tenant's right to enter when the Building is closed after normal
business hours under such reasonable regulations as Landlord may
prescribe from time to time for application to and for the benefit and
protection of all tenants of the Building;
(d) Upon prior oral notice to Tenant, to enter the Premises during
reasonable hours (i) at any time during the Term to show the Premises
to prospective purchasers or lenders, or (ii) during the last twelve
(12) months of the Term to show the Premises to prospective tenants,
and to decorate, remodel, repair, alter or otherwise prepare the
Premises for reoccupancy at any time after Tenant vacates or abandons
the Premises;
(e) Upon prior written notice to Tenant, to relocate Tenant within
the Building to new space (the "RELOCATION SPACE") which is comparable
in size, utility and condition to the Premises and which is situated on
the west side of the Building and not lower than the tenth (10th) floor
of the Building. Such relocation will be effective on a date specified
by Landlord, which date will not be less than ninety (90) days after
Landlord's notice. If Landlord relocates Tenant, Landlord will
reimburse Tenant for (i) Tenant's reasonable out-of-pocket expenses
directly related to Tenant's move to the Relocation Space, and (ii)
Tenant's stationary costs not to exceed Five Thousand and 00/100
Dollars ($5,000.00). Upon such relocation, the Relocation Space will be
deemed to be the Premises, the terms of the Lease will remain in full
force and apply to the Relocation Space, and Landlord and Tenant agree
to execute an amendment to this Lease confirming such relocation of
Tenant to the Relocation Space within twenty (20) days after Tenant
takes possession of the Relocation Space;
(f) To maintain within the lobby of the Building a directory
containing a standard listing with Tenant's name;
18
(g) To install and maintain signs on the exterior and interior of
the Building;
(h) To prescribe and approve in advance the location and style of
any suite number and identification sign or lettering on the door to
the Premises occupied by Tenant, the cost of which signage shall be
borne by Tenant;
(i) To retain at all times and to use in appropriate instances
pass keys to the Premises;
(j) To grant to anyone the right to conduct any business or render
any service in the Building, whether or not it is the same as or
similar to the use expressly permitted to Tenant in Section 7 above;
(k) To have access for Landlord and other tenants of the Building
to all mail chutes according to the rules of the United States Post
Office;
(l) To enter the Premises after advance notice to Tenant (except
that no such notice shall be required in the event of an emergency) at
any time for reasonable purposes, including and supplying janitor
service or other service to be provided to Tenant under this Lease;
(m) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time determine to identify
themselves to watchmen or security personnel by registration or
otherwise, and to establish their right to enter or leave the Building;
provided Landlord will not be liable in damages for any error with
respect to admission to or eviction or exclusion of any person from the
Building. In case of fire, invasion, insurrection, mob, riot, civil
disorder, public excitement or other commotion, or threat thereof,
Landlord reserves the right to limit or prevent access to the Building
during the continuance of same, shut down elevator service, activate
elevator emergency controls, or otherwise take such action or
preventive measures deemed necessary by Landlord for the safety of the
tenants or other occupants of the Building or the protection of the
Building and the property in the Building. Tenant agrees to cooperate
in any reasonable safety program developed by Landlord; and
(n) From time to time to make and adopt such reasonable
rules and regulations uniformly applied, in addition to or other than
or by way of amendment or modification of the rules and regulations
contained in EXHIBIT B attached to this Lease or other sections of this
Lease, for the protection and welfare of the Building, its tenants and
occupants, as Landlord may reasonably determine, and Tenant agrees to
abide by all such rules and regulations.
21. MISCELLANEOUS.
21.1. LANDLORD TRANSFER.
Landlord may transfer any portion of the Building and any of its rights
under this Lease. If Landlord assigns its rights under this Lease, then Landlord
will be released from any further obligations under this Lease, provided that
the assignee assumes Landlord's obligations under this Lease in writing and
written notice thereof is provided to Tenant.
21.2. LANDLORD'S LIABILITY.
The liability of Landlord and Landlord's Affiliates (as defined below)
to Tenant for any default by Landlord under the terms of this Lease will be
recoverable only from the interest of Landlord in the Building, and Tenant
agrees to look solely to landlord's interest in the Building for
19
the enforcement of any judgment, award, order or other remedy under or in
connection with this Lease. Under no circumstances will Landlord or Landlord's
Affiliates have any personal liability for any of the foregoing matters. The
term "LANDLORD'S AFFILIATES" means collectively Landlord's property manager and
its and Landlord's respective current and future affiliates, trustees,
beneficiaries, principals, investors, directors, officers, general or limited
partners, shareholders, managers, employees, agents, representatives, successors
and assigns.
21.3. FORCE MAJEURE.
Other than for Tenant's obligations under this Lease that can be
performed by the payment of money (e.g., payment of Rent and maintenance of
insurance), whenever a period of time is prescribed for action to be taken by
either party, such party will not be liable or responsible for, and there will
be excluded from the computation of any such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war, governmental
laws, regulations, or restrictions, or any other causes of any kind whatsoever
which are beyond the reasonable control of such party.
21.4. BROKERAGE.
Neither Landlord nor Tenant has dealt with any broker or agent in
connection with the negotiation or execution of this Lease other than Landlord's
Broker and Tenant's Broker, whose commissions are payable by Landlord. Landlord
and Tenant agree to defend, indemnify and hold each other harmless from and
against all claims, damages, costs, expenses, attorneys' fees and other
liabilities for commissions or other compensation claimed by any other broker or
agent.
21.5. ESTOPPEL CERTIFICATES.
From time to time, Tenant agrees to furnish to Landlord, Landlord's
Mortgagee or any third party designated by Landlord, within ten (10) business
days after Landlord has made a request, a written estoppel certificate signed by
Tenant or an authorized signatory of Tenant in the form attached as EXHIBIT D,
confirming and certifying to such party, as of the date of such estoppel
certificate, to the extent factual or known, (i) that Tenant is in possession of
the Premises, (ii) that this Lease is unmodified and in full force and effect
(or if there have been modifications, that this Lease is in full force and
effect as modified and setting forth such modification); (iii) that Tenant has
no offsets, claims or defenses against Rent or the enforcement of any right or
remedy of Landlord, or any duty or obligation of Tenant under this Lease (and,
if so, specifying the same in detail); (iv) the dates through which Base Rent
and Additional Rent have been paid; (v) that Tenant has no knowledge of any then
uncured defaults on the part of Landlord under this Lease (or if Tenant has
knowledge of any such uncured defaults, specifying the same in detail); (vi)
that Tenant having made due investigation has no knowledge of any event having
occurred that authorizes the termination of this Lease by Tenant (or if Tenant
has such knowledge, specifying the same in detail): (vii) the amount of any
Security Deposit held by Landlord; (viii) that there are no actions, whether
voluntary or otherwise, pending against Tenant; and (ix) other matters
reasonably requested by Landlord or such other party. If Tenant fails to deliver
the estoppel certificate described above within such ten (10) business day
period, Tenant acknowledges and agrees that Landlord is authorized to act as
Tenant's attorney-in-fact to execute the estoppel certificate on behalf of
Tenant, and Tenant will be bound by the terms of the estoppel certificate
prepared and executed by Landlord.
20
21.6. NOTICES.
All notices and other communications given pursuant to this Lease must
be in writing and must be sent to the parties listed in the Lease Information
Summary above by any of the following: (1) first class mail, United States Mail,
postage prepaid, certified, with return receipt requested, and addressed to the
parties at the address specified next to their signature block, (2) a nationally
recognized overnight courier, (3) personal delivery to the intended address, or
(4) prepaid telegram, cable, facsimile transmission or telex with confirmation
of successful transmission followed by a confirmatory letter. All notices will
be effective upon delivery to the address of the addressee, or, if the addressee
refuses delivery, then delivery will be deemed effective as of the date of the
attempted delivery. The parties may change their addresses by giving notice of
such change to the other party in conformity with this provision.
21.7. SEVERABILITY.
If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws, then the remainder of this Lease
will not be affected, and in lieu of such clause or provision, a clause or
provision as similar in terms to such illegal, invalid, or unenforceable clause
or provision will be deemed added to this Lease as may be possible and be legal,
valid, and enforceable.
21.8. AMENDMENTS; AND BINDING EFFECT.
This Lease may not be amended except by instrument in writing signed by
Landlord and Tenant. No provision of this Lease will be deemed to have been
modified or waived by Landlord unless such modification or waiver is in writing
signed by Landlord. No custom or practice which may evolve between the parties
in the administration of the terms of this Lease will waive or diminish the
right of Landlord to insist upon the performance by Tenant in strict accordance
with the terms of this Lease, except as expressly modified in writing signed by
Landlord and Tenant. The terms and conditions contained in this Lease will inure
to the benefit of and be binding upon the parties, and upon their respective
successors in interest and legal representatives, except as otherwise expressly
provided. This Lease is for the sole benefit of Landlord and Tenant, and, other
than Landlord's Mortgagee, no third party may be deemed a third party
beneficiary.
21.9. QUIET ENJOYMENT.
Provided Tenant has performed all of its obligations under this Lease,
Tenant may peaceably and quietly hold and enjoy the Premises for the Term,
without hindrance from Landlord or any party claiming by, through, or under
Landlord, subject to the terms and conditions of this Lease.
21.10. NO MERGER.
No merger of the leasehold estate created under this Lease with the fee
estate in all or any part of the Premises will occur if the same person acquires
or holds, directly or indirectly, this Lease or any interest in this Lease and
the fee estate in the leasehold Premises or any interest in such fee estate.
21.11. NO OFFER.
The submission of this Lease to Tenant may not be construed as an
offer, and Tenant will have no rights under this Lease unless Landlord executes
a copy of this Lease and delivers it to Tenant.
21
21.12. ENTIRE AGREEMENT.
This Lease constitutes the entire agreement between Landlord and Tenant
regarding the subject matter of this Lease and supersedes all prior related oral
statements and writings. Except for those set forth in this Lease, no
representations, warranties, or agreements have been made by Landlord or Tenant
to the other with respect to this Lease or the obligations of Landlord or Tenant
in connection with this Lease.
21.13. CALENDAR DAYS.
All references in this Agreement to a certain number of days will be
deemed to mean calendar days, unless otherwise expressly stated.
21.14. PROHIBITION AGAINST LEASEHOLD MORTGAGES.
Tenant will not mortgage, pledge or otherwise encumber its interest in
this Lease or in the Premises during the Term without the prior written consent
of Landlord, which consent will not be unreasonably withheld.
21.15. WAIVER OF TRIAL BY JURY.
Landlord and Tenant mutually, knowingly, irrevocably, voluntarily and
intentionally waive the right to a trial by jury in any action, proceeding or
counterclaim brought by either of the parties against the other in connection
with this Lease. Each party further warrants and represents that it has reviewed
this waiver with its legal counsel and that each has waived its jury trial
rights following consultation with legal counsel. This waiver applies to any and
all subsequent amendments and any other agreements relating to this Lease. In
the event of litigation, this Lease may be filed as a written consent to a trial
by the court sitting without a jury. Tenant further agrees that in the event
Landlord commences any summary proceeding for non-payment of Rent, Tenant will
not interpose any counterclaim of any nature or description in such proceeding.
21.16. LANDLORD'S REMEDIES CUMULATIVE.
No reference to any specific right or remedy will preclude Landlord
from exercising any other right, having any other remedy or maintaining any
action to which it may otherwise be entitled at law or in equity. No failure by
Landlord to insist upon the strict performance of any agreement, term, covenant
or condition of this Lease, or to exercise any right or remedy consequent upon a
breach thereof, and no acceptance of full or partial Rent during the continuance
of any such breach will constitute a waiver of any such breach, agreement, term,
covenant or condition. No waiver by Landlord of any breach by Tenant under this
Lease or of any breach by any other tenant under any other lease or any portion
of the Building will affect or alter this Lease in any way whatsoever. No
covenant, term or condition of this Lease will be deemed waived by Landlord
unless such waiver is in writing and executed by Landlord. Landlord may accept a
partial payment of Rent or other sums due under this Lease without such
acceptance constituting an accord and satisfaction and without prejudice to
Landlord's right to demand the balance of such Rent or other sum,
notwithstanding any notation on a check or letter accompanying such partial
payment, unless Landlord expressly waives its right to such balance in writing.
21.17. PROHIBITION AGAINST RECORDATION.
Tenant may not record all or any part of this Lease or any memorandum
of this Lease. Any recording by Tenant of all or any part of this Lease or any
memorandum of this Lease will be in violation of this Lease and will be void,
and Tenant agrees to indemnify Landlord, its
22
trustees, beneficiaries, agents, successors and assigns for any losses, damages
or expenses of any nature whatsoever incurred by reason of such recording. In
the event Tenant records or causes all or any part of this Lease or any
memorandum of this Lease to be recorded, Tenant hereby irrevocably appoints
Landlord as Tenant's attorney-in-fact, coupled with an interest, to execute and
record a certificate to clear any cloud on the title to the Building created by
the improper recordation.
21.18. JOINT AND SEVERAL LIABILITY.
If two (2) or more individuals, corporations, partnerships or other
business associations (or any combination of two (2) or more thereof) sign this
Lease as Tenant, the liability of each such individual, corporation, partnership
or other business association to pay Rent and perform all of Tenant's other
obligations under this Lease are deemed to be joint and several.
21.19. CORPORATE TENANTS.
If Tenant is a corporation, the persons executing this Lease on behalf
of Tenant hereby covenant and warrant that Tenant is a duly constituted
corporation qualified to do business in the State of Illinois; all of Tenant's
franchise and corporate taxes have been paid to date; all future forms, reports,
fees and other documents necessary for Tenant to comply with all applicable laws
will be filed by Tenant when due; and such persons are duly authorized by the
board of directors of such corporation to execute and deliver this Lease on
behalf of Tenant.
21.20. OPTION TO RENEW.
So long as (i) Tenant is not in default under this Lease, and (ii) no
event has occurred but for the passage of time or the giving of notice, or both,
would constitute a default under this Lease, Tenant shall have the option (the
"RENEWAL OPTION") to renew the Term of this Lease for one (1) additional five
(5) year period (the "RENEWAL PERIOD"). If Tenant desires to exercise the
Renewal Option, Tenant must deliver written notice (the "RENEWAL NOTICE") to
Landlord at least six (6) months prior to the expiration of the Term. The same
terms and conditions as contained in this Lease will apply during the Renewal
Period, except that the Base Rent during the Renewal Period will be equal to 95%
of the then prevailing fair market rental rate for buildings of similar size and
class located in the downtown Chicago area as reasonably determined by
Landlord., which rate will be communicated to Tenant by Landlord within ten (10)
days after Landlord's receipt of the Renewal Notice. Tenant shall then have
twenty (20) days to accept or reject the rental terms for the Renewal Period by
so notifying Landlord in writing within said twenty (20) day period. Any attempt
by Tenant to exercise the Renewal Option by any method, at any time or in any
circumstances other than as specifically set forth herein will be deemed null
and void and of no force or effect at the sole option and discretion of
Landlord.
21.21. RIGHT OF FIRST REFUSAL.
Subject to the right(s) of any pre-existing tenant(s) of the Building
to lease the "Additional Premises" (as defined below) or any portion of the
Additional Premises [about which Landlord hereby acknowledges it knows of no
such right(s) of any pre-existing tenant(s)], and provided Tenant has
continuously occupied the Premises and is not in default under the terms and
conditions of this Lease as of the date Tenant notifies Landlord of its desire
to exercise a "Right of First Refusal" (as defined below), and further provided
no event has occurred but for the passage of time or the giving of notice, or
both, would constitute a default under this Lease, at any time prior to the end
of the third lease year Tenant shall have an ongoing right of first refusal (the
"RIGHT OF FIRST REFUSAL") to rent any space on the thirteenth (13th) floor of
the Building which is contiguous to that portion of the Premises on the
thirteenth (13th) floor then being
23
occupied by Tenant (the "ADDITIONAL PREMISES"), subject to the terms and
conditions below. Prior to entering into any lease or other agreement with a
third party with respect to the Additional Premises during the first three (3)
years of the Term, Landlord will give Tenant notice in writing ("LANDLORD'S
NOTICE") when the Additional Premises can be made available to Tenant (the
"AVAILABILITY DATE") and the terms evidenced in writing upon which a third party
is willing to rent the Additional Premises. Tenant must notify Landlord in
writing within ten (10) business days after Tenant's receipt of Landlord's
Notice whether Tenant desires to exercise its Right of First Refusal. Tenant's
Right of First Refusal may only be exercised as to the entire Additional
Premises and on the same terms as offered by Landlord to the third party. If
Tenant does not notify Landlord of its election to exercise its Right of First
Refusal with respect to the Additional Premises within the ten (10) business day
period described herein, then Tenant will be deemed to have waived and elected
not to exercise its Right of First Refusal with respect to the Additional
Premises, and Landlord may enter into a lease or other agreement with any third
party with respect to the Additional Premises on the same terms and conditions
set forth in Landlord's Notice. If Tenant elects to exercise its Right of First
Refusal and so notifies Landlord within such ten (10) business day period, then
Tenant will accept the Additional Premises on the Availability Date in "AS-IS"
condition and on the same terms and conditions as offered to the third party,
except that (1) the term "PREMISES" for all purposes of this Lease will
thereafter include the Additional Premises, and (2) the numerator of Tenant's
Proportionate Share will increase by the amount of rentable square feet
contained within the Additional Premises. Tenant will commence paying Rent for
the Additional Premises on the Availability Date.
LANDLORD:
000 XXXXX XXXXXXXX TRUST,
a Delaware business trust
By: XXXXXXX XXXXXXX-XXXXXXX MANAGEMENT
CORPORATION,
an Illinois corporation, its agent
By
------------------------------
Its:
------------------------------
TENANT:
XXXXXXX.XXX, LTD.,
a Delaware corporation
By:
---------------------------------
Its:
--------------------------------
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EXHIBIT A
OUTLINE OF PREMISES
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations will apply to the Premises, the
Building and any appurtenances:
Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas may not be obstructed by tenants or used by any tenant for purposes other
than ingress and egress to and from their respective leased premises and for
going from one to another part of the Building.
Plumbing fixtures and appliances may be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable material may
be thrown or deposited in such fixtures and appliances. Damage resulting to any
such fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
No signs, advertisements or notices may be painted or affixed on or to
any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws may be driven or inserted in any
part of the Building except by Building maintenance personnel. No curtains or
other window treatments may be placed between the glass and the Building
standard window treatments.
Landlord will provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
Landlord will provide all door locks in each tenant's leased premises,
at the cost of such tenant, and no tenant may place any additional door locks in
its leased premises without Landlord's prior written consent. Landlord will
furnish to each tenant a reasonable number of keys to such tenant's leased
premises, at such tenant's cost, and no tenant may make a duplicate.
Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby may be conducted under Landlord's supervision at such times
and in such a manner as Landlord may reasonably require. Each tenant assumes all
risks of and will be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which will in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such supporting devices as Landlord may require.
All damages to the Building caused by the installation or removal of any
property of a tenant, or done by a tenant's property while in the Building, will
be repaired at the expense of such tenant.
Corridor doors, when not in use, must be kept closed. Nothing may be
swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals may be brought into or kept in, on or about any tenant's leased
premises. No portion of any tenant's leased premises may at any time be used or
occupied as sleeping or lodging quarters.
Tenant will cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants will not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. may be delivered to any leased area except by
persons approved by Landlord.
Tenant may not make or permit any improper, objectionable or unpleasant
noises or odors in the Building or otherwise interfere in any way with other
tenants or persons having business with them.
No machinery of any kind (other than normal office equipment) may be
operated by any tenant on its leased area without Landlord's prior written
consent, nor may any tenant use or keep in the Building any flammable or
explosive fluid or substance.
Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord, which
permission will not be unreasonably withheld or delayed.
EXHIBIT C
LETTER OF CREDIT
EXHIBIT D
ESTOPPEL CERTIFICATE
The undersigned tenant ("TENANT") certifies as follows:
1. Tenant entered into a written lease dated September ___, 1999 (the
"LEASE") with 000 Xxxxx Xxxxxxxx Trust, as landlord ("LANDLORD"), under which
Lease Landlord leased to Tenant and Tenant rented from Landlord certain premises
on the 13th floor of the building located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the "PREMISES").
2. The Lease is in full force and effect; Tenant accepted and presently
occupies the Premises and is paying rent currently; Tenant has no setoffs,
claims or defenses to the enforcement of the Lease; and Tenant has not assigned
or transferred its interest thereunder.
3. Tenant's Base Rent under the Lease is currently $____________.
4. As of this date, Tenant is not in default in the performance of the
Lease, has not committed any breach of the Lease and no notice of default has
been given to Tenant.
5. As of this date, Landlord is not in default under the Lease, and no
notice of default has been given to Landlord.
6. No rent or other moneys have been paid to Landlord or Landlord's
agent by Tenant more than thirty (30) days in advance under the Lease, and a
security deposit has been paid by Tenant in the amount of
$_____________.
7. The term of the Lease expires on __________________, and Tenant has
no rights to extend the term of the Lease nor purchase all or any portion of the
Premises.
8. Tenant has no claim against Landlord for any security deposit or
prepaid rent.
9. The Lease constitutes the only agreement between Landlord and Tenant
with respect to the Premises, and the Lease has not been amended, modified or
superseded.
Dated: September ___, 1999.
TENANT:
XXXXXXX.XXX, LTD.,
a Delaware corporation
By
--------------------------
Its
--------------------------
EXHIBIT E
INTENTIONALLY DELETED
EXHIBIT F
WORKLETTER
This Workletter (the "WORKLETTER") is referred to in and specifically
made a part of that certain lease dated September ___, 1999 (the "LEASE")
between XXXXXXX XXXXXXX-XXXXXXX MANAGEMENT CORPORATION, as agent for 000 Xxxxx
Xxxxxxxx Trust, a Delaware business trust ("LANDLORD"), and XXXXXXX.XXX, LTD., a
Delaware corporation ("TENANT").
Landlord and Tenant agree that their respective rights and obligations
with respect to the construction of the Premises shall be as provided in the
Lease and in this Workletter. All of the terms used herein which are defined in
the Lease shall have the same meanings as provided in the Lease unless otherwise
stated herein.
1. TENANT'S PLANS AND SPECIFICATIONS
(A) Tenant, at Tenant's sole cost and expense, except as
otherwise provided herein, shall cause Tenant's architect and
Landlord's MPE engineer(s) to prepare complete, finished architectural
plans and specifications in sufficient detail as to heat loads,
ventilation, electrical loads and plumbing requirements for preparation
of HVAC, mechanical, electrical, plumbing, fire protection, structural
and telephone drawings by other professionals engaged by Tenant,
including all dimensions and specifications for all work to be
performed in the Premises as tenant improvements (collectively
"TENANT'S PLANS").
(B) Tenant's Plans shall include all information which may be
required by Landlord's engineers in connection with mechanical plans,
including but not limited to the following:
(1) Any special floor loading conditions which
may exceed the structural weights limits of any floor;
(2) Specifications of any heat emanating
equipment to be installed by Tenant which may require special
air conditioning;
(3) Telephone specifications and electrical
specifications of any equipment that requires additional
electrical power or outlets;
(4) Complete specifications of any dataline wiring
required, including routing, conduit size, cable type and
similar items.
(5) Furniture plans (including locations of
files) showing details of space occupancy;
(6) Reflected ceiling plans;
(7) Partition and door location plans;
(8) Fire safety plans;
(9) Detail and finish plans and schedules,
together with specifications for any "TENANT'S WORK" (as
hereinafter defined) to be performed in the Premises; and
(10) Plans for any stairwell to be constructed in
the Premises.
(C) Tenant's Plans are expressly subject to Landlord's
prior written approval. Landlord shall, within ten (10) business days
after submission of any of Tenant's Plans, either (i) approve Tenant's
Plans as submitted, or (ii) advise Tenant of the changes required in
Tenant's Plans in order to meet Landlord's requirements. If Landlord
does not respond to Tenant within said ten (10) business day period,
then Tenant's Plans shall be deemed approved as submitted. Neither
review nor approval by Landlord of any of Tenant's Plans shall
constitute a representation or warranty by Landlord that Tenant's Plans
are complete or suitable for their intended purpose, or comply with
applicable laws, ordinances, codes and regulations, it being expressly
agreed by Tenant that Landlord assumes no responsibility or liability
to Tenant or to any other person or entity for such completeness,
suitability or compliance.
(D) Tenant shall make no material changes in Tenant's Plans
after approval thereof by Landlord without the prior written consent of
Landlord.
(E) Tenant's preliminary space plans have been delivered to
Landlord. Tenant's final mechanical and engineering plans and
specifications, and final architectural plans shall be delivered to
Landlord on or before four (4) weeks after the date of the Lease.
Revised plans incorporating any changes requested by Landlord shall be
resubmitted to Landlord within ten (10) business days after notice of
disapproval is delivered to Tenant.
(F) All requests by Tenant for reimbursement of expenses as
provided in this Workletter shall be paid: (i) by Landlord within
thirty (30) days after
-2-
Landlord's receipt of such written request, accompanied by invoices or
other appropriate documentation reasonably satisfactory to Landlord
which evidences the actual charges incurred by Tenant pursuant to
subparagraph (E) above; or (ii) in accordance with the construction
escrow agreement in the form attached hereto as Schedule A, if
applicable. All costs in excess of the maximum reimbursements specified
herein or in the Lease shall be paid by Tenant.
2. THE WORK. Upon receipt and approval by Landlord of all of
Tenant's Plans, Landlord shall cause the Premises to be improved in
accordance with Tenant's Plans. The improvement of the Premises in
accordance with Tenant's Plans is sometimes referred to herein as the
"WORK". Upon approval by Landlord of Tenant's Plans, Landlord shall
cause Tenant's Plans to be filed with the governmental agencies having
jurisdiction thereof in order to obtain all governmental permits and
authorizations which may be required in connection with the Work to be
done.
3. ACCEPTANCE OF WORK. Landlord shall give Tenant or shall cause
Landlord's architect or interior space planner to give Tenant written
notice (the "COMPLETION NOTICE") of the date on which (i) the Work
shall be "SUBSTANTIALLY COMPLETED" in accordance with Tenant's Plans
(the "SUBSTANTIAL COMPLETION DATE"), and (ii) the Premises shall be
"READY FOR OCCUPANCY." Tenant shall then have the obligation, within
three (3) business days after Landlord's delivery of the Completion
Notice, to prepare a punchlist (to be signed by both Landlord and
Tenant) of all items to be completed and/or corrected (the "PUNCHLIST
ITEMS") based on Tenant's inspection of the Premises with Landlord or
Landlord's representative(s) within such three (3) business day period.
Any items not listed or described on such punchlist shall be deemed
accepted by Tenant. Subject to any "EXCUSED DELAY", Landlord shall
correct the Punchlist Items within a reasonable period of time after
the Substantial Completion Date; provided, however, in no event shall
such period exceed sixty (60) days. The determination by Landlord's
architect or interior space planner that the Work has been
substantially completed shall be final, conclusive and binding on
Tenant as to whether the Premises are substantially complete in
accordance with Tenant's Plans and Ready for Occupancy. Substantial
completion of the Work shall mean the completion of the Work in a good
and workmanlike manner and substantially in accordance with Tenant's
Plans, as the same may be amended from time to time, with the exception
of minor or insubstantial details of construction, mechanical
adjustment or decoration, the incompletion of which will not
unreasonably interfere with the normal use or occupancy of the Premises
by Tenant.
4. LANDLORD'S CONTRIBUTION. Landlord shall contribute the sum of
$158,790.00 (based on $30.00 per rentable square foot of Rentable Area
in the
-3-
Premises) (the "CONTRIBUTION") toward the "COST OF THE WORK" (as
hereinafter defined). As used herein, "COST OF THE WORK" shall mean the
costs of all labor and materials for improvements to the Premises in
accordance with Tenant's Plans, the preparation of Tenant's Plans,
general contractor's fees, costs of built-in furniture, costs of
separately metering electricity to the Premises and costs for the
purchase, delivery and installation of any other item which, when
installed in the Premises, shall be deemed a fixture or a permanent
improvement to the Premises. No supervisory fees shall be payable to
Landlord in connection with the Work. In the event the Cost of the Work
is for an amount in excess of the Contribution, or, as a result of
approved change orders, becomes in excess of the Contribution, or if
the Cost of the Work is or becomes in excess of the Contribution, then
Tenant shall deposit the amount of such excess into the construction
escrow (if applicable). In no event shall Landlord have any liability
or responsibility for any Cost of the Work in excess of the
Contribution. At Landlord's election, the Contribution shall, within
fourteen (14) days after the execution of the Lease, be placed into the
construction escrow (if applicable) which shall provide for payments
from the escrowee to the general contractor upon the deposit into
escrow of customary contractors' affidavits, lien waivers and
architects' affidavits in accordance with the provisions of the
construction escrow agreement (if applicable) attached hereto as
Schedule A. The cost of any such escrow shall be included in the Cost
of the Work.
5. ACCESS BY TENANT PRIOR TO COMPLETION OF WORK. If Tenant
desires to do any construction, decorating or finish work in the Premises in
addition to the Work ("TENANT'S WORK"), then Tenant's Work shall comply with all
of the provisions of the Lease, including, without limitation, section 6 of the
Lease. Landlord will permit Tenant and Tenant's agents, suppliers, contractors
and workmen to enter the Premises to perform Tenant's Work prior to the
Commencement Date, provided that Tenant's Work does not interfere with or delay
the completion of the Work to the extent applicable. Landlord shall also provide
Tenant with access to loading docks, freight elevators, construction hoists and
electrical service prior to the Commencement Date in connection with the
completion of Tenant's Work. Scheduling of Tenant's Work in the Premises and the
use of loading docks, freight elevators and construction hoists shall be subject
to advance scheduling as reasonably determined by Landlord. Tenant's right of
entry as provided herein shall be a license only, conditioned upon Tenant fully
performing and complying with each of the following covenants, conditions and
requirements:
(A) Tenant and Tenant's agents, contractors, workmen,
mechanics, suppliers and invitees shall work in harmony and not
interfere with Landlord and Landlord's agents in the performance of the
Work or work for other tenants and occupants of the Building. If at any
time such entry shall, in the reasonable judgment of
-4-
Landlord, cause or threaten to cause disharmony or interference,
Landlord shall have the right to withdraw such permission upon
twenty-four (24) hours notice to Tenant;
(B) Tenant agrees that any such entry into the Premises shall
be deemed to be under all of the terms, covenants, conditions and
provisions of the Lease, except as to the covenant to pay Rent, and
Tenant further agrees that in connection therewith Landlord shall not
be liable in any way for any injury, loss or damage (unless caused by
Landlord's gross negligence) which may occur to any of Tenant's Work
and/or to property placed in the Premises prior to the Commencement
Date and thereafter, the same being at Tenant's sole risk. Tenant shall
allow Landlord access to the Premises for inspection purposes at all
times during the period that Tenant is performing any Tenant's Work. If
Tenant or any entity performing Tenant's Work on behalf of Tenant
causes any injury to any person or any damage to the Premises, the
Building, any other property of Landlord or to any other person, then
Tenant agrees to indemnify, defend and hold Landlord harmless from and
against any loss, damage or injury suffered in connection with any such
damage or injury. Further, Tenant shall cause such damage to be
repaired at Tenant's expense, and if Tenant fails to cause such damage
to be repaired within ten (10) days after Landlord's demand therefor,
then Landlord may, in addition to any other rights or remedies
available to Landlord under this Lease or at law or in equity, cause
such damage to be repaired, in which event Tenant shall promptly upon
Landlord's demand pay to Landlord the cost of such repairs;
(C) All contractors and subcontractors performing Tenant's
Work shall use only those service corridors and service entrances
designated by Landlord for ingress and egress of personnel, and the
delivery and removal of equipment and material through or across any
common areas of the Building shall only be permitted with the written
approval of Landlord and during hours determined by Landlord. Landlord
shall have the right to order Tenant or any contractor or subcontractor
who violates these requirements to cease work in the Building and
remove its equipment and its employees from the Building. At Landlord's
option, Landlord may require Tenant to remove any work that has not
been done according to approved plans, and to restore any portion of
the Building on which Tenant has performed such nonconforming work to
its original condition;
(D) During the performance of Tenant's Work and Tenant's
fixturing, Landlord shall provide trash removal service from a location
designated by Landlord. Tenant shall be responsible for breaking down
boxes and placing trash in Landlord's containers at such designated
location. Tenant shall accumulate its
-5-
trash in containers supplied by Landlord and shall not permit trash to
accumulate within the Premises or in any Building corridors or public
areas. Tenant shall perform Tenant's Work in a manner that dust or dirt
is contained entirely within the Premises, and Tenant shall cause
Tenant's contractors to leave the Premises in broom clean condition at
the end of each day. Should Landlord deem it necessary to remove
Tenant's trash because of accumulation, Tenant shall pay to Landlord an
additional charge for such removal on a time and material basis;
(E) Tenant agrees that all services and work performed on the
Premises by, on behalf of or for the account of Tenant, including
installation of telephones, carpeting, materials and personal property
delivered to the Premises, shall be done in a first-class, workmanlike
manner using only good grades of material and shall be performed only
by persons covered by a collective bargaining agreement with the
appropriate trade union; and
(F) Tenant agrees to protect, indemnify, defend and hold
Landlord and its agents, partners, contractors and employees harmless
from and against any and all losses, damages, liabilities, claims,
liens, costs and expenses (except those caused by the grossly negligent
or intentional actions of Landlord), including reasonable attorney's
fees, of whatever nature, including those to the person and property of
Tenant, its employees, agents, invitees, licensees and others arising
out of or in connection with the activities of Tenant or Tenant's
contractors in or about the Premises or the Building, and the cost of
any repairs to the Premises or the Building necessitated by activities
of Tenant or Tenant's contractors.
6. COMPLETION OF WORK. Subject to any Tenant Delay or "EXCUSED DELAY"
(as defined below), the Premises shall be Ready For Occupancy on the
Commencement Date. In the event the Premises are not Ready for Occupancy on the
Commencement Date as a result of any Tenant Delay, Rent shall commence as
scheduled on the Commencement Date. As used herein, the following terms are
defined as follows:
(A) "EXCUSED DELAY" means any delay caused by strike, lockout
or labor trouble; civil disorder; inability to procure materials,
provided that failure to order materials in a commercially reasonable
and timely manner shall not be deemed to be inability to procure such
materials; failure of power; restrictive governmental laws and
regulations not in effect on the date the Lease is executed; riots,
insurrections or war; fuel shortages; accidents; casualties; acts of
God; or any other cause beyond the reasonable control of Landlord.
-6-
(B) "TENANT DELAY" means any delay (which delays the
completion of the Work beyond the Commencement Date) caused by (i)
Tenant's failure to submit Tenant's Plans, supply information or give
authorizations, approvals or responses within the time periods set
forth herein; (ii) changes, alterations or additions to the Work
required by Tenant in the improvement of the Premises; (iii) Tenant's
performance of any Tenant Work in a manner that interferes with or
delays the completion of the Work; (iv) special equipment, fixtures or
materials ordered by or requested by Tenant requiring long lead times
and not included in Tenant's Plans; or (v) any other delay or default
on the part of Tenant or its agents or contractors.
(C) The Premises shall be deemed "READY FOR OCCUPANCY" on the
date of substantial completion of the Work in a manner which will allow
Tenant to occupy the Premises for its intended use, even though
punchlist items relating to construction, decoration or mechanical
adjustments remain to be completed.
In no event shall Landlord incur any liability for failure to deliver the
Premises to Tenant on the Commencement Date if such failure is caused by any
Tenant Delay or any Excused Delay.
7. MISCELLANEOUS.
(A) Except as expressly set forth herein, Landlord has no
other agreement with Tenant to improve the Premises and has no other
obligation to do any other work or pay any amounts with respect to the
Premises. Any other work in the Premises which may be permitted by
Landlord pursuant to the terms and conditions of the Lease or this
Workletter shall be done at Tenant's sole cost and expense and in
accordance with the terms and conditions of the Lease.
(B) This Workletter shall not be deemed applicable to any
additional space added to the original Premises at any time or from
time to time, whether by any options under the Lease or otherwise, or
to any portion of the original Premises or any additions thereto if the
initial term of the Lease is renewed or extended, whether by any
options under the Lease or otherwise, unless expressly so provided in
the Lease or any amendment or supplement thereto.
(C) The failure by Tenant to pay any amount(s) due Landlord
pursuant to this Workletter within the time periods herein stated shall
be deemed a default under the terms of the Lease, for which Landlord
shall be entitled to exercise all
-7-
remedies available to Landlord for nonpayment of Rent, and all late
payments shall be subject to interest and late charges as provided in
the Lease.
(D) This Workletter is being executed in conjunction with the
Lease and is subject to the limitation of Landlord's liability set
forth therein. In the event of a conflict between the Lease and this
Workletter, the terms of this Workletter shall govern.
(E) Tenant agrees that any existing improvements in the
Premises not used in construction of the Work, including but not
limited to doors, door frames, lighting, light fixtures and other
detachable improvements, shall be returned to Landlord for its use.
IN WITNESS WHEREOF, the parties hereto have executed this Workletter as
of this _____ day of September, 1999.
LANDLORD: TENANT:
XXXXXXX XXXXXXX-XXXXXXX MANAGEMENT HOT XXXX.XXX, LTD.,
CORPORATION, as agent for 360 North a Delaware corporation
Michigan Trust, a Delaware business trust
By: By:
--------------------------- ------------------------------
Its: Its:
--------------------------- ------------------------------
-8-
EXHIBIT G
CERTIFICATE OF COMMENCEMENT DATE
With respect to that certain Lease Agreement dated September ___, 1999
(the "LEASE") for the premises commonly known as Suite 1300 in the Building
located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, the undersigned certify
and agree that the date of the commencement of the Term of the Lease will be
_______________, 1999, and the date of expiration of the Term of the Lease will
be ______________, 2004.
Dated this _____ day of September, 1999.
LANDLORD:
360 NORTH MICHIGAN TRUST,
a Delaware business trust
By: XXXXXXX XXXXXXX-XXXXXXX MANAGEMENT
CORPORATION,
an Illinois corporation, its agent
By
-----------------------------
Its:
-----------------------------
TENANT:
XXXXXXX.XXX, LTD.,
a Delaware corporation
By:
-----------------------------------
Its
-----------------------------------
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EXHIBIT H
AFTER RECORDING, RETURN TO:
------------------------------
------------------------------
------------------------------
------------------------------
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SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(hereinafter referred to as the "Agreement"), is dated as of September ____,
1999 by and among CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware
limited liability company, having an office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (hereinafter referred to as "MORTGAGEE"), XXXXXXX.XXX, LTD., a
Delaware corporation, having an office at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "TENANT"), and 000 XXXXX
XXXXXXXX TRUST, a Delaware business trust, having an office at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"LANDLORD").
W I T N E S S E T H:
WHEREAS, Mortgagee made a loan to Landlord which is secured by a
mortgage encumbering certain real property described in EXHIBIT A attached
hereto and made a part hereof (hereinafter called the "MORTGAGED Property"),
which was executed by Landlord as of September ____, 1999 and recorded in the
Office of the Recorder of Deeds of Xxxx County, Illinois on _____________, 1999
as Document No. __________ (hereinafter called the "MORTGAGE");
WHEREAS, by written Lease Agreement dated September ____, 1999
(hereinafter called the "LEASE") Tenant has leased a portion of the Mortgaged
Property as more fully described in the Lease (the "PREMISES") for an initial
term commencing on the "COMMENCEMENT DATE" and ending on the "TERMINATION DATE"
(as such terms are
-10-
defined in the Lease), subject to being shortened or extended on terms and
conditions specified in the Lease; and
WHEREAS, Tenant has agreed to acknowledge the subordination of the
Lease to the lien of the Mortgage and Mortgagee has agreed to grant
non-disturbance to Tenant under the Lease.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00)
paid by each party to the other, the receipt of which is hereby acknowledged,
the parties hereby agree as follows:
1. Provided Tenant is not in default under the Lease, (a) the rights of
Tenant under the Lease shall not be affected or disturbed by Mortgagee in the
exercise of any of its rights under the Mortgage or any note secured thereby,
(b) any sale of the Mortgaged Property pursuant to the exercise of any rights
and remedies under the Mortgage or otherwise shall be made subject to Tenant's
right of possession under the Lease, and (c) Mortgagee shall not join Tenant in
any foreclosure or summary proceedings.
2. Tenant shall attorn to Mortgagee, any receiver or any other person
or entity which acquires title to the Mortgaged Property pursuant to any remedy
set forth in the Mortgage or by deed in lieu of foreclosure (any such person or
entity being hereinafter referred to as a "SUCCESSOR LANDLORD"), and the Lease
shall continue in accordance with its terms between Tenant and Mortgagee or such
Successor Landlord, except as modified by this Agreement.
3. (a)______Neither Mortgagee nor any Successor Landlord shall be (i)
liable for any act or omission of any prior landlord (including Landlord), (ii)
liable for the return of any security deposit not actually received by Successor
Landlord, (iii) subject to any offsets or defenses which Tenant might have
against any prior landlord (including Landlord), (iv) bound by any advance
payment of rent or additional rent made by Tenant to Landlord except for rent or
additional rent applicable to the then current month, (v) bound by any amendment
or modification of the Lease made without the written consent of Mortgagee, or
(vi) bound to effect or pay for any construction for Tenant's occupancy.
(b)______Tenant agrees that it will not, without the prior
consent of Mortgagee, do any of the following, and any such purported action
without such consent shall be void as against Mortgagee and any Successor
Landlord: (i) modify or amend the Lease, (ii) terminate the Lease, (iii) enter
into any extensions or renewals of the lease in such a way as to reduce the
rent, accelerate rent payments, shorten the term of the Lease, or change any
renewal option, or (iv) tender or accept a surrender of the Lease or make a
prepayment in excess of one month of rent thereunder.
-11-
4. The Lease and the rights of Tenant thereunder shall be subject and
subordinate to the lien of the Mortgage and to all of the terms, conditions and
provisions thereof, to all advances made or to be made thereunder, and to all
renewals, extensions, modifications and replacements thereof, including any
increases therein or supplements thereto.
5. The foregoing provisions shall be self-operative. However, Tenant agrees to
execute and deliver to Mortgagee or to any person to whom Tenant herein agrees
to attorn, such other instrument as either shall reasonably request in order to
effectuate said provisions.
6. Tenant certifies that there are no known defaults on the part of Landlord,
that the Lease is a complete statement of the agreement of the parties thereto
with respect to the letting of the Premises, that (after the release of any
escrow governing the delivery of the Lease pending receipt by Tenant of this
Agreement) the Lease is in full force and effect and that all conditions to the
effectiveness and continuing effectiveness thereof required to be satisfied at
the date hereof have been satisfied.
7. Tenant shall notify Mortgagee at the aforesaid address, by registered or
certified mail, return receipt requested, of any default of Landlord which would
entitle Tenant to cancel the Lease or xxxxx the rent payable thereunder or
exercise any rights of "self-help", and agrees that, notwithstanding any
provision of the Lease to the contrary, no notice of cancellation thereof nor
any abatement shall be effective and no right of "self-help" shall be exercised
unless Mortgagee has received the aforesaid notice and has failed within the
period provided in the Lease for Landlord to cure such default plus an
additional thirty (30) days to cure Landlord's default or, if the default cannot
be cured within such period, has failed, within such period, to commence and to
thereafter diligently prosecute the cure of Landlord's default which gave rise
to such right of cancellation, abatement or "self-help". Notwithstanding the
foregoing, Mortgagee may, but shall not be obligated to, so cure Landlord's
default.
8. Tenant agrees that notice from Mortgagee to Tenant shall have the same effect
under the Lease as notice to Tenant from Landlord thereunder and Tenant agrees
to be bound by such notice notwithstanding the existence or nonexistence of a
default under the Mortgage or any dispute with respect thereto between Mortgagee
and the mortgagor under the Mortgage.
9. In the event that a default occurs under the terms of the Mortgage, Tenant
agrees, upon written notification from Mortgagee of said default made to Tenant,
to pay all rents then due or to become due directly to Mortgagee (which notice
Mortgagee agrees shall only be given in accordance with the terms of the
Mortgage) or until further notice is received from Mortgagee. Landlord agrees
that any such payment to
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Mortgagee shall satisfy pro tanto the obligations of Tenant under the Lease.
Tenant shall continue to look to Landlord for the performance of Landlord's
obligations under the Lease.
10. Any notice required or desired to be given hereunder shall be in writing and
shall be sent by certified or registered mail, return receipt requested,
addressed as follows:
If to Mortgagee: CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
If to Tenant: XXXXXXX.XXX, LTD.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
If to Landlord: 000 XXXXX XXXXXXXX TRUST
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Manager
11. Anything herein or in the Lease to the contrary notwithstanding, in the
event that Successor Landlord shall acquire title to the Mortgaged Property,
Successor Landlord shall have no obligation, nor incur any liability, beyond its
then interest, if any, in the Mortgaged Property and Tenant shall look
exclusively to such interest, if any, of Successor Landlord in the Mortgaged
Property for the payment and discharge of all obligations and liabilities
imposed upon Mortgagee hereunder or under the Lease, and Successor Landlord is
hereby released and relieved of any and all other obligations and liabilities
hereunder and under the Lease in excess of Successor Landlord's interest in the
Mortgaged Property. Tenant agrees that, with respect to any money judgment which
may be obtained or secured by Tenant against Successor Landlord, Tenant shall
look solely to the estate or interest owned by Successor Landlord in the
Mortgaged Property, and
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Tenant will not collect or attempt to collect any such judgment out of any other
assets of Successor Landlord.
12. This Agreement shall inure to the benefit of and be binding upon Tenant and
any successor or assignee of Tenant which pursuant to the provisions of the
Lease is entitled to succeed to Tenant's interest therein. This Agreement shall
inure to the benefit of and be binding upon Mortgagee and its successors and
assigns, including any purchaser of the Mortgaged Property at a foreclosure sale
and the Landlord and its successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
MORTGAGEE:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
TENANT:
XXXXXXX.XXX, LTD.
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
LANDLORD:
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000 XXXXX XXXXXXXX TRUST, a
Delaware business trust
By:
---------------------------------
Name:
----------------------------
Title:
----------------------------
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the ____ day of September in the year 1999 before me, the
undersigned, a notary public in and for said state, personally appeared
___________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
------------------------------
Notary Public
My Commission Expires:
----------------
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On the ____ day of September in the year 1999 before me, the
undersigned, a notary public in and for said state, personally appeared
___________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
------------------------------
Notary Public
My Commission Expires:
----------------
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On the ____ day of September in the year 1999 before me, the
undersigned, a notary public in and for said state, personally appeared
___________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
------------------------------
Notary Public
My Commission Expires:
----------------
