OFFICE LEASE
INFORTE CORP., a Delaware corporation
OFFICE LEASE
INFORTE CORP., a Delaware corporation
TABLE OF CONTENTS
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PAGE
RECITALS 1
TERMS 1
1. Basic Lease Provisions 1
2. Rent 2
2.1. Base Rent 2
2.2. Interest and Late Charges 2
3. Operating Expense Rent and Real Estate Taxes Rent 3
3.1. Operating Expense Rent 3
3.1.1. Operating Expenses Defined 3
3.1.2. Partial Occupancy 4
3.2 Real Estate Taxes Rent 4
3.2.1. Real Estate Taxes Defined 4
3.3. Payment 4
3.4. Statement 5
3.5. Proration 5
3.6. Additional Taxes Payable by Tenant 5
3.7. Change in Tenant's Percentage Share 5
4. Use of Premises 5
4.1. Use Restrictions 5
4.2. Access 6
4.3. Tenant's Right to Use Common Areas 6
4.4. Outdoor Deck 6
4.4. Miscellaneous Restrictions 6
5. Landlord's Reservation of Rights 6
6. Parking 7
7. Graphics 7
8. Assignment and Subletting 7
8.1. Assignment and Subletting 7
8.2. Restrictions on Terms 8
8.3. Assumption of Liability 8
8.4. Assignment by Landlord 8
9. Ordinances and Statutes 9
10. Tenant Improvements; Maintenance, Repairs and Alterations 9
10.1. Tenant's Obligations 9
10.2. Limits on Alterations 9
10.3. Liens 9
10.4. Landlord's Obligations 10
10.5 Initial Tenant Improvements 10
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11. Entry and Inspection 11
12. Indemnification. 11
13. Tenant's Insurance 12
13.1. Types of Insurance 12
13.2. Form of Insurance and Selection of Insurers 12
13.3. Waiver of Subrogation 13
14. Landlord's Insurance 13
15. Utilities and Services 13
15.1. Separate Metering 13
15.2. HVAC 13
15.3. Building Standard Services 14
15.4 Water Usage 14
15.5. Additional Tenant Responsibilities 14
15.6. Payment 14
16. Condemnation 14
17. Destruction of Premises 15
18. Hazardous Substances 15
19. Events of Xxxxxxx 00
00. Landlord's Remedies on Xxxxxxx 00
00. Security Deposit 17
22. Limitation on Landlord's Personal Liability 17
23. Attorneys' Fees 17
24. Waiver 18
25. Severability 18
26. Notices 18
27. Surrender of Premises 18
28. Holding Over 18
29. Time 18
30. Successors and Assigns 18
31. Subordination/Non-Disturbance & Attornment 18
32. Estoppel Certificate 19
33. Right of First Refusal 19
34. Renewal Option 19
35. Storage Space 20
36. Authorization 20
37. Joint and Several Liability 20
38. Force Majeure 20
39. Recording 20
40. Governing Law 20
41. Jury Waiver 20
42. Covenant of Quiet Enjoyment 20
43. Encumbrances 20
44. Real Estate Broker Disclosure 20
45. Entire Agreement 21
46. Construction of Lease Document 21
47. Third Party Disclosure 21
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EXHIBIT A 23
PLAN OF LEASED PREMISES 23
EXHIBIT B 24
RULES AND REGULATIONS 24
EXHIBIT C 27
TENANT'S EXTERIOR SIGNAGE 27
EXHIBIT D 28
OWNER AND TENANT "S CONSTRUCTION ESCROW AGREEMENT 28
EXHIBIT E 29
JANITORIAL SPECIFICATIONS 29
EXHIBIT F 33
FORM OF SUBORDINATION,
NON-DISTURBANCE & ATTORNMENT AGREEMENT 33
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OFFICE LEASE
This Lease (this "Lease") is dated the 19th day of August 2005, between
THE XXXXX BUILDING GROUP L.L.C., an Illinois limited liability company acting
through its managing agent Xxxxxxxx Properties, Ltd., an Illinois corporation
("Landlord") and INFORTE CORP., a Delaware corporation ("Tenant").
RECITALS
1. Landlord owns the building located at 000-000 Xxxxx Xxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the "Building").
2. Landlord agrees to lease space (the "Premises") in the Building to Tenant,
and Tenant agrees to lease the Premises from the Landlord, all on the terms
described below.
SCHEDULE OF TERMS
1. Basic Lease Provisions. The basic provisions of this Lease contained in this
Schedule of Terms ("Schedule") are as follows:
1.1. The Premises: Suite 1200 (as shown on the plan of Premises
attached to this Lease as Exhibit A-1) and Suite 1300,
including the 13th floor outdoor deck (as shown on the plan of
Premises attached to this Lease as Exhibit A-2) of the
Building.
1.2. Rentable Area of Premises: approximately 16,102 rentable
square feet consisting of approximately 12,000 square feet on
the twelfth (12th) floor and approximately 4,102 square feet
on the thirteenth (13th) floor (as shown on the plan of
premises attached to this Lease as Exhibit A-1 and A-2,
respectively). The Premises shall also include the outdoor
deck depicted on Exhibit A-2.
1.3. Tenant's Percentage Share of Operating Expenses (as defined in
Paragraph 3 below): 10.85% (16,102 rsf/ 148,353 rsf)
1.4. Commencement Date: The earlier of (a) Tenant's occupancy of
the Premises or (b) January 1, 2006. Tenant shall have access
to the Premises after mutual execution of the Lease to
commence Tenant Improvements (as set forth in Section 10.5
below). Tenant shall also have access to the Premises at least
thirty (30) days prior to occupancy for the purpose of
installing furniture, fixtures and equipment ("Fixturing
Period").
1.5. Rent Commencement Date: January 1, 2006.
1.6. Lease Term: The Term of the Lease shall commence on the
Commencement Date and expire on the last day of the month five
(5) years following the Rent Commencement Date.
1.7. Base Rent: Monthly installments of Base Rent shall be payable
as follows:
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January 1, 2006 through December 31, 2006: $26,501.21 per month
January 1, 2007 through December 31, 2007: $27,172.13 per month
January 1, 2008 through December 31, 2008: $27,843.04 per month
January 1, 2009 through December 31, 2009: $28,513.96 per month
January 1, 2010 through December 31, 2010: $29,184.88 per month
1.8. Security Deposit: $26,501.21 due upon execution of this Lease
and subject to the terms and conditions of Paragraph 21
below).
1.9. Permitted Use: General office use and use of the 13th floor
outdoor deck, as more fully set forth in Section 4.4 herein.
1.10. Guarantor: None.
1.11. Base Year for Operating Expenses: 2006
1.12. Base Year for Real Estate Taxes: 2006 (including 2005 real
estate taxes payable in 2006)
1.13. Notices for Tenant:
Prior to the Commencement Date: 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000
Following the Commencement Date: The Premises
1.14. Tenant's Federal Employer Identification Number (FEIN) is:
00-0000000.
2. Rent.
2.1. Base Rent. Tenant shall pay to Landlord as rent for the use and
occupancy of the Premises, at the times and in the manner provided below, Base
Rent in the amount specified in Paragraph 1 above. Base Rent is payable in
advance beginning on the Rent Commencement Date and on the first day of each
successive calendar month during the Lease Term without demand, setoff or
deduction. If the first or last month of this Lease is not a full month, Base
Rent will be prorated in proportion to the number of days the Premises are
occupied in such month. All payments to the Landlord will be made to Xxxxxxxx
Properties, Ltd., 000 Xxxxx XxXxxxx Xxxxxx - Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000
or to a lock box location designated by landlord in writing.
2.2 Interest and Late Charges. If Tenant fails to pay any Base Rent
or any other amount when due and payable under this Lease, the unpaid amount
shall bear interest from the due date to the date of payment at the lesser rate
of (1) Prime Rate plus 5% per annum and (2) the highest rate permitted by law.
In addition, a $100.00 charge shall be imposed on any check that is returned for
insufficient funds. As used herein the "Prime Rate" shall mean the Prime Rate
published from time to time by LaSalle Bank National Association.
Notwithstanding the foregoing, if there is no uncured Event of Default by Tenant
under this Lease and amounts due hereunder are received by Landlord prior to the
fifth (5th) day of the month in which such amounts are due, the Landlord shall
waive the assessment of interest once for every year of the Lease Term.
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3. Operating Expense Rent and Real Estate Taxes Rent.
3.1. Operating Expense Rent. Commencing on the first day of the
calendar year following the Base Year, Tenant shall pay Tenant's Percentage
Share, as defined in the Schedule, of the Operating Expenses ("Operating Expense
Rent") paid or incurred by Landlord in each calendar year of the Lease Term in
excess of the Operating Expenses of the Base Year as set forth in the Schedule
of Terms. Operating Expense Rent, except Real Estate Taxes and insurance
premiums, shall be limited to an increase of five percent (5%) annually.
3.1.1. Operating Expenses Defined. "Operating Expenses" means
all costs of operating, servicing, repairing and maintaining the Building (as
hereinafter defined), but does not include any costs which are paid directly by,
or which are incurred for the sole benefit of, any tenant in the Building. The
Landlord will calculate Operating Expenses in accordance with generally accepted
accounting principles applied on a consistent basis ("GAAP"). Examples of
Operating Expenses are:
(a) utility charges, including water, sewer, heating, air
conditioning, ventilating and all other utility charges (other than charges for
utilities separately metered and paid directly by the Tenant or by other
tenants);
(b) costs of janitorial and maintenance services, which
include cleaning of Common Areas (as defined below), exterior window cleaning,
fire detection and security services, gardening and landscape maintenance, snow
and ice removal, garbage and other refuse removal, pest control, painting (other
than painting of any tenant space), facade maintenance, Common Area lighting,
exterior and Common Area partition wall repairs, roof repairs, maintenance of
all pipes, repair and repainting of sidewalks. No credit shall be given to
Tenant for janitorial services engaged by Tenant for Premises cleaning;
(c) insurance premiums for public liability, property
damage, flood and all other types of insurance that Landlord maintains for the
Building, including any amounts that would be paid by Landlord as premiums for
usual and customary self-insurance risks for similarly situated buildings,
including insurance deductibles;
(d) a property management fee of not more than 4% of gross
rents collected by Landlord from tenants of the Building;
(e) the costs (amortized together with a reasonable finance
charge in accordance with GAAP) of any capital improvements which Landlord makes
to the Building if such improvements are intended primarily (A) for the purpose
of reducing Operating Expenses; or (B) are required to comply with any
governmental law or regulation that was not in force at the time this Lease
began; and
(f) interest and amortization expense in connection with any
expenditure made for any of the above items.
Operating Expenses do not include, and therefore Landlord is not entitled to be
reimbursed under this Lease for, the following items: (i) depreciation on the
Building or any Common Areas; (ii) costs of planning, designing, improving or
altering any tenant's space; (iii) costs of relocating any tenant, and expenses
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of marketing and leasing space in the Building, including finders' fees and real
estate broker commissions; (iv) costs for which Landlord is otherwise
reimbursed, but only to the extent of such other reimbursement, such as, for
example, expenses reimbursed by another tenant under the provisions of such
other tenant's lease; (v) costs in connection with services or benefits that are
not provided to Tenant, but are provided to another tenant in the Building; (vi)
Landlord's general overhead and administrative expenses not directly allocable
to the operation of the Building; (vii) court costs and legal fees which
Landlord pays to enforce the obligations of tenants in the Building; (viii)
wages of any employee not related to the Building; (ix) expenditures that are
considered to be capital expenditures under GAAP, other than those listed in
clause (e) above, (x) fines, levies, or penalties imposed upon Landlord by any
governmental authority as a result of the violation of any Law, by Landlord,
(xi) political and charitable contributions, (xii) the cost of encapsulating
asbestos and (xiii) costs and expenses associated with leasing the Building.
3.1.2. Partial Occupancy. For the purpose of determining
Operating Expense Rent for any calendar year, or a portion thereof, if the
Building is not fully rented, Landlord may make appropriate adjustments to the
Operating Expenses for such calendar year, employing sound accounting and
management principles consistently applied, to determine the amount of Operating
Expenses that would have been paid or incurred by the Landlord had the Building
been 90% occupied, and the amount so determined shall be deemed to have been the
amount of Operating Expenses for such calendar year.
3.2. Real Estate Taxes Rent. Commencing on the first day of the
calendar year following the Base Year, Tenant shall pay Tenant's Percentage
Share, as specified in the Schedule, of the Real Estate Taxes ("Real Estate
Taxes Rent") paid or incurred by Landlord in each calendar year of the Lease
Term in excess of the Real Estate Taxes for the Base Year as set forth in the
Schedule of Terms.
3.2.1. Real Estate Taxes Defined. "Real Estate Taxes" mean all
property taxes and assessments of every type, whether general or special, and
sewer rents, rates and charges, and any taxes enacted in place of those taxes,
which are at any time levied or assessed against any or all of the Building, or
the furniture, fixtures, machinery, equipment and systems located in the
Building (except that personal property taxes for personal property located in
any premises leased to another tenant shall not be included). These taxes are
sometimes referred to in this Lease as "Taxes." Taxes also shall include all
amounts expended by Landlord for legal fees and other expenses incurred in
obtaining a reduction in Taxes, so long as such fees are less than the amount of
the reduction received by Tenant. Taxes shall not include any income, franchise,
gift or inheritance taxes that the Landlord must pay in connection with the
Building.
3.3. Payment. During December of each calendar year, or as soon after
that date as practicable, Landlord shall give Tenant written notice of its
estimate of Operating Expense Rent and Real Estate Taxes Rent for the following
calendar year. On or before the first day of each month during the following
calendar year, Tenant shall pay to Landlord 1/12th of such estimated amounts,
provided that if such notice is not given in December, Tenant shall continue to
pay on the basis of the prior year's estimate until the month after such notice
is given. If at any time it appears to Landlord that the amounts payable for
Operating Expense Rent and Real Estate Taxes Rent for the current calendar year
will vary from its estimate by more than 10%, Landlord, by written notice to
Tenant, shall revise its estimate for that year, and subsequent payments by
Tenant for that year shall be in an amount so that by the end of the year Tenant
will have paid an amount equal to the revised estimate. Landlord shall indicate
in its notice to Tenant the reasons Landlord believes its estimate is low by
more than 10%.
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3.4. Statement. Within 90 days after the end of each calendar year or
as soon after that date as practicable, Landlord shall deliver to Tenant a
detailed line item statement of amounts of Operating Expense Rent and Real
Estate Taxes Rent payable for that calendar year. If the statement shows that
Tenant owes more than the estimated payments that Tenant made for the calendar
year, Tenant shall pay the deficiency to Landlord within 30 days after delivery
of the statement. If the total of the estimated monthly installments paid by
Tenant during any calendar year exceeds the actual amounts due from Tenant for
the calendar year and if Tenant is not in default, the excess shall, at
Landlord's option, either be credited against payments next due from Tenant or
refunded by Landlord to Tenant. Tenant has the right to cause an audit to be
performed at Tenant's sole cost and expense of Landlord's operations and books
and records pertaining to Operating Expenses and/or Real Estate Taxes for the
preceding two calendar years. If Landlord has overstated Operating Expenses
and/or Real Estate Taxes, within 30 days after demand by Tenant accompanied by
Tenant's verification of such overcharges, Landlord shall reimburse Tenant for
all such overcharges and the reasonable cost of said audit. Any overpayment by
Tenant at the end of the Lease Term shall be reimbursed to Tenant within sixty
(60) days following the end of the Lease Term.
3.5. Proration. If this Lease terminates on a day other than the last
day of a calendar year, the amount of Operating Expense Rent and Real Estate
Taxes Rent payable by Tenant applicable to that calendar year will be prorated
to reflect the number of days from the commencement of the year to and the date
of termination.
3.6. Additional Taxes Payable by Tenant. Tenant shall pay any taxes
reasonably attributable to (i) the cost or value of Tenant's equipment,
furniture, fixtures and other personal property located in the Premises, or (ii)
the cost or value of any leasehold improvements made in or to the Premises by or
for Tenant other than any initial improvements installed at Landlord's expense,
regardless of whether Tenant or Landlord has title to such improvements.
3.7. Change in Tenant's Percentage Share. "Tenant's Percentage Share"
means a fraction, the numerator of which is the Rentable Area of the Premises
and the denominator of which is the Rentable Area of the Building, determined by
measuring all of the areas located within the exterior walls of the Building. As
of the date of this Lease, Tenant's Percentage Share is as described in the
Schedule. Landlord shall recalculate Tenant's Percentage Share if the Rentable
Area of the Premises or the Building changes for any reason, such recalculation
to reflect the rentable area of the Premises expressed as a percentage of the
Rentable Area of the Building; provided, however, in no event shall Tenant's
Percentage Share be greater than the share set forth in Section 1.3 of the
Lease, except as a result of the removal or addition of area of the Building.
Landlord shall notify Tenant in writing of any recalculation.
4. Use of Premises.
4.1. Use Restrictions. Tenant may not use any portion of the Premises
for any use which is unlawful or which interferes with the use of other premises
by other tenants of the Building or for purposes other than those specified in
Paragraph 1. Tenant may not use the Premises for any purpose that will increase
the existing rate of insurance on the Building, or cause cancellation of
insurance policies covering the Building. Tenant's use of the Premises in
accordance with the Permitted Use, shall not increase the existing rate of
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insurance on the Building or cause cancellation of insurance policies covering
the Building.
4.2. Access. Tenant shall have access to the Building and the
Premises seven (7) days per week, twenty-four (24) hours per day. Access to the
Building other than during normal business hours will be subject to such rules
and regulations, as Landlord reasonably requires, including without limitation
the rules and regulations attached as Exhibit B. Upon Tenant's request, Landlord
shall, at Tenant's sole cost and expense, install a security system in the
Building's elevators. Landlord and Tenant shall agree on the reasonable cost of
same prior to the installation of the security system.
4.3. Tenant's Right to Use Common Areas. Landlord grants Tenant and
its authorized representatives and invitees the non-exclusive right to use the
Common Areas (as hereinafter defined) with others who are entitled to use the
Common Areas subject to Landlord's rights as set forth in this Lease. "Common
Areas" shall consist of the following elements of the Building, whether now
existing or hereafter installed, modified or altered: all areas outside the
Premises that (1) are provided by Landlord for the general use and convenience
of Tenant and other tenants of the Building and (2) are not leased to any
tenant. Common Areas are located both inside and outside the Building, and
include all areas designated as Common Areas by Landlord as long as they fall
within the scope of the preceding sentence. Examples of Common Areas are common
entrances to the Building, lobbies, hallways, walkways, patios (excluding the
roof deck which is part of the Premises and is for Tenant's exclusive use), if
any, landscaped areas maintained by Landlord, if any, in connection with the
Building, sidewalks including public sidewalks, service corridors, elevators,
restrooms, stairways, decorative walls, plazas, if any, loading areas, parking
areas, driveways and public alleys adjacent to the Building. The Building and
the Common Areas are sometimes collectively referred to in this Lease as the
"Building".
4.4 Outdoor Deck. Tenant shall be permitted to use the outdoor deck
located on the 13th floor of the Premises for business entertainment and as a
lounge and dining area for clients, customers, employees and guests. Such use
shall not violate the restrictions in Section 4.1 herein. In the event Tenant
serves liquor in the Premises or outdoor deck, Tenant shall be required to
maintain liquor liability insurance in accordance with the requirements in
Section 13.1(e) herein.
4.5 Miscellaneous Restrictions. Tenant shall not use the Premises
for any offensive, noisy or dangerous trade, business, manufacture or occupation
or interfere with the business of any other tenant in the Building. Tenant shall
not cause, permit or suffer any waste or damage, disfigurement or injury to the
Premises, or the fixtures or equipment in the Premises or the Common Areas.
Tenant shall not obstruct the sidewalks or other Common Areas of the Building or
use them for business operations or advertising. Tenant shall not use the
Premises for any purpose that would emit any offensive odor, create unreasonable
elevator loads, cause structural loads to be exceeded or adversely affect the
mechanical, electrical, plumbing or other base building systems.
5. Landlord's Reservation of Rights. Landlord may (i) increase, reduce or
change the number, dimensions or locations of the walks, parking, if any, and
other Common Areas and other improvements located in or about the Building in
any manner that Landlord in its sole discretion deems proper, so long as
Landlord does not materially and adversely affect Tenant's use of or access to
the Premises; (ii) make alterations and additions to the Building, and build
additional stories on the Building (except over the 13th floor roof deck); (iii)
install, maintain, use, repair and replace pipes, ducts, conduits and wires
leading through the Premises and serving other parts of the Building in a manner
that will not materially interfere with Tenant's use of the Premises; (iv)
change the Building's name or street address upon 90 days prior notice (provided
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that if the change is made voluntarily by Landlord, Landlord will reimburse
Tenant, upon presentation of invoices paid by Tenant, for reasonable costs of
stationery and business cards not to exceed $1,000 in the aggregate); (v) grant
to any person or entity the exclusive right to conduct any business or render
any service in or to the Building; (vi) retain at all times master keys or
passkeys to the Premises, and place such signs, notices or displays as Landlord
reasonably deems necessary or desirable on the roof (provided the same do not
affect Tenant's use and enjoyment of the roof deck) and exterior of the
Building; (vii) make reasonable rules and regulations applicable to all tenants
concerning the Common Areas; (viii) close temporarily any of the Common Areas
for maintenance purposes; and (ix) designate other lands outside (but adjacent
to) the exterior boundaries of the Building to become part of the Common Areas,
provided they are utilized in connection with the Building.
6. Parking. Tenant shall not park or permit the parking of any vehicles
adjacent to loading areas so as to interfere in any way with their use. Parking
and standing in public streets and alleys adjacent to the Building is prohibited
subject to local law.
7. Graphics. Landlord, at Landlord's expense, will install directory
signage with Tenant's name and suite number in each of the applicable lobby
directories and the hall directories, and will include Tenant's name in the main
lobby directory. Tenant shall have the ability to list a reasonable number of
names of its various departments and company officers in the main lobby
directory. Tenant shall have the right to install an identifying plaque on the
exterior of the Building, which will be similar in size and finishes to the
existing signage of Bartlit, Xxxx, Xxxxxx, Xxxxxxxxx & Xxxxx, L.L.P., at the
corner of Xxxxxxx and Dearborn, and in accordance with the design and
specifications attached hereto as Exhibit C. Tenant shall submit architectural
plans for exterior signage for Landlord's review and approval, which shall
include design, size, placement and method of attachment. Landlord's approval
shall not be unreasonably withheld, conditioned or delayed. All signage is
subject to review and approval by all applicable governmental authorities.
Tenant, at Tenant's expense, shall have the right to place signage in the 12th
floor elevator lobby and will have the ability, at Tenant's expense, to match
the finishes in the elevator lobby in the 12th floor consistent with the
finishes within the Premises. Notwithstanding anything herein to the contrary,
Landlord shall not install signage on the roof, which materially interferes with
Tenant's use of the 13th floor outdoor deck.
8. Assignment and Subletting
8.1 Assignment and Subletting. Tenant may not assign this Lease or
sublet any portion of the Premises without the prior written consent of
Landlord, which will not be unreasonably withheld, conditioned or delayed.
Following Landlord's receipt of all reasonably requested information, Landlord
shall have fifteen (15) days to approve or disapprove of Tenant's proposed
assignment or sublease. It is reasonable for Landlord, among other things, to
withhold consent if Landlord is not satisfied with the identity, reputation or
business character of the proposed assignee or subtenant, or if the proposed
assignee or subtenant would violate any restrictions in any leases with another
tenant in the building or if there is an Event of Default by Tenant and such
default remains uncured. Any change in the ownership of Tenant that results in a
change in control of Tenant, if Tenant is a corporation, limited liability
company or general or limited partnership, shall constitute an assignment for
purposes of this Paragraph 8. Notwithstanding the foregoing, Tenant may sublet
or assign all or a portion of the Lease or Premises, as the case may be, upon
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notice to, but not consent of Landlord, to a fully owned subsidiary, division,
joint venture, parent company, subsidiary or affiliate of Tenant or company
related to Tenant. Landlord acknowledges that, from time to time, Tenant may
allow certain offices within the Premises to be used on a temporary basis by
employees of Cerenti, which is not an affiliated entity, and that such temporary
office use will not violate the restrictions on assignment and subletting set
forth herein. If requested by Tenant, Landlord will cooperate with Tenant in
providing directory listings for Cerenti on the main lobby directory, at
Tenant's expense.
8.2 Restrictions on Terms. Tenant may not advertise the Premises for
sublease at a rental rate below the rate, if any, that Landlord is then
advertising other available space in the Building, but Tenant may quote a lower
rental rate to potential subtenants and actually sublease the Premises at a
rental rate below the rate Landlord is advertising other space in the Building,
provided Tenant shall remain responsible for the entire Base Rent amount
required under this Lease. If Tenant subleases or assigns this Lease, it shall
be entitled to 50% of the net Profit from such action and Landlord shall be
entitled to the remaining 50%. The term Profit shall mean any premium (whether
payable in a lump sum or in installments over the balance of the Term or
otherwise) secured by Tenant in connection with the assignment or sublease
transaction which represents, to the fullest extent which may be implied or
inferred from the totality of the documentation, an excess differential over
Rent payable under this Lease (whether resulting from increased rental value of
the Premises at such time or otherwise) less Tenant's reasonable costs in
securing such assignee or sublessee, including, but not limited to, brokerage
commissions, tenant improvements, rental concessions, reasonable marketing costs
and attorney's fees, and its own credit check fees,. Any sublease rent payable
under a sublease, or any payment for an assignment of this Lease, shall be
payable to Tenant and Tenant shall promptly submit to Landlord a list of all
expenses incurred by Tenant including, but not limited to, concessions,
construction costs and other similar costs paid for by Tenant for or on behalf
of Subtenant, that are part of the calculation of net Profit plus 50% of the net
Profit, plus interest if not remitted after thirty (30) days following receipt
by Tenant. In promoting the Premises, Tenant may not use any marketing materials
prepared by Landlord, and may not use any picture or rendering of the Building
prepared by Landlord. If Tenant offers more than 35% of the Premises (the
"Offered Premises") for sublease or assignment at any one time, Tenant shall so
notify Landlord in writing and Landlord shall be entitled, at Landlord's sole
discretion, to recapture the Offered Premises; provided that such recapture
right shall not apply if such sublease or amendment is to an affiliate of
Tenant. To exercise its election, Landlord shall give written notice of such
election to Tenant within 10 days of receipt of Tenant's notice, in which case
this Lease shall be terminated as to the Offered Premises as of the last day of
the month in which such notice is given, and Landlord shall have the exclusive
right to lease the Offered Premises to third parties or Tenant shall have the
right to rescind its notice to Landlord by written notice within 10 days of
receipt of Landlord's notice.
8.3. Assumption of Liability. Tenant shall remain liable for all
covenants, duties and obligations under this Lease notwithstanding any permitted
assignment or subletting under Subparagraph 8.1 above. Tenant will cause any
permitted assignee to expressly assume in writing and agree to perform all of
the covenants, duties and obligations of Tenant under this Lease, and such
assignee shall be jointly and severally liable along with Tenant.
8.4. Assignment by Landlord. Landlord shall have the right to assign
or transfer, in whole or in part, Landlord's rights and obligations under this
Lease in connection with a transfer of the Building and the Premises. Tenant
shall recognize as its landlord any party to whom Landlord assigns this Lease.
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9. Ordinances and Statutes. At Tenant's sole cost, Tenant shall comply
with all statutes, ordinances and requirements of all municipal, state and
federal authorities pertaining to the Premises including, but not limited to,
the Americans With Disabilities Act, except to the extent of any breach of the
representation and warranty made by Landlord below. Tenant is not obligated,
however, to cause the Common Areas to comply with such statutes, ordinances and
requirements.
Landlord represents and warrants that to its actual knowledge, the
Building and the Premises comply with the Americans with Disabilities Act of
1990, as amended and other federal, state and local accessibility laws and
ordinances ("Accessibility Laws"). If Tenant performs any work in the Premises,
Tenant shall be required to cause such work to comply with all Accessibility
Laws.
10. Tenant Improvements; Maintenance, Repairs and Alterations.
10.1. Tenant's Obligations. Except to the extent set forth in Section
10.4 hereof, Tenant shall, at its own expense and at all times, maintain the
Premises in good repair and safe condition, including but not limited to
performing its obligations under Paragraph 15 below. Tenant shall not use the
Premises in any way that affects the structural integrity or mechanical systems
of the Building. Tenant shall observe and keep all reasonable rules and
regulations promulgated by Landlord from time to time for the safe, secure and
efficient operation of the Building, and the Premises and for the safety of all
tenants, occupants and invitees thereof. Landlord's current rules and
regulations are set forth in Exhibit B attached to this Lease, which Landlord
shall have the right to reasonably amend from time to time.
10.2. Limits on Alterations. Tenant may not make any structural
alterations to the Premises without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole discretion. Tenant may not make any
nonstructural alterations to the Premises in excess of $50,000.00 without the
prior written consent of the Landlord, which consent may not be unreasonably
withheld. Whether or not any Tenant nonstructural alteration to the Premises
requires Landlord's prior written consent, Tenant shall coordinate such
nonstructural alteration with Landlord prior to any work being performed and
along such parameters as stated herein. Landlord may require reasonable
assurances of lien-free completion of alterations, such as, for example,
performance bonds and construction escrows. All alterations shall be performed
in a good and workmanlike manner and performed by a licensed contractor
reasonably acceptable to Landlord. All materials shall be of a quality
comparable to or better than those in the Premises and installed in accordance
with plans and specifications approved by Landlord. No alterations may be made
that penetrate the roof of the Building or the floor of the Premises or in any
way impair the safety of the Building. Landlord shall be entitled to supervise
any alterations which Tenant, through an outside contractor, makes to the
Premises (including the Initial Tenant Improvements), in which case Landlord
shall be entitled to reimbursement of its actual out-of-pocket costs incurred in
retaining such outside contractor, (which shall be payable within thirty (30)
days following Tenant's receipt of Landlord's invoice. Notwithstanding the
foregoing, Landlord shall not seek reimbursement for any out-of-pocket costs for
the supervision of any cosmetic alterations Tenant makes to the Premises and
which do not require Landlord approval.
10.3. Liens. Tenant shall pay all costs of alterations permitted under
Subparagraph 10.2. Tenant shall keep the Premises and the Building free and
clear of all mechanic's and materialman's liens resulting from construction done
by or for Tenant. If any mechanic's or materialman's lien is ever claimed, fixed
or asserted against the Premises or the Building in connection with any Tenant
work, Tenant shall, within ten days after receipt by Tenant of notice of such
lien, either (i) discharge the lien either by payment or by posting a bond as
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permitted by law or (ii) provide Landlord with title indemnity over such lien.
If Tenant does not discharge the lien, whether valid or not, Landlord shall have
the right, but not the obligation, to discharge the lien on Tenant's behalf, and
Tenant shall promptly reimburse Landlord for all costs and expenses incurred by
Landlord associated with the discharge of the lien, including without limitation
reasonable attorneys' fees.
10.4. Landlord's Obligations. During the Term, Landlord shall make all
repairs to and perform necessary maintenance on: (a) all structural elements of
the Building; (b) all mechanical, electrical and plumbing systems that serve the
Building in general; and (c) the Building facilities common to all tenants,
including the Common Areas. Landlord shall also make all repairs to and perform
necessary maintenance on the elevator that exclusively serves the 12th and 13th
floors of the Premises. Landlord shall also perform the following items, at
Landlord's expense (and not subject to reimbursement from Tenant as an Operating
Expense) and exclusive of the Allowance (hereinafter defined): (a) repair, clean
and replace as necessary the existing blinds; and (b) repair (including, without
limitation, repairs to warped boards, xxxxxxxx repairs and application of new
stain) and maintain the existing deck on the roof of the Building.
10.5. Initial Tenant Improvements.
(a) Following execution of this Lease, Tenant shall provide to
Landlord, for Landlord's reasonable approval, a full set of architectural plans
and specifications ("Plans") to the extent necessary for the build-out of the
Premises ("Initial Tenant Improvements") and capable of being presented for the
purposes of obtaining all applicable building permits from the City of Chicago.
The Plans shall be prepared by a reputable architect selected by Tenant and
approved by Landlord and shall be paid for by Tenant, except as set forth in
Section 10.5(c) below. Landlord may engage, at Landlord's sole cost and expense,
an architect to review the Plans, in which event Tenant shall cause its
architect to coordinate with Landlord's architect. If needed, Tenant shall
engage, at Tenant's sole cost and expense, a permit expediter, approved by
Landlord. Upon receipt of Landlord's approval of the Plans, Tenant shall present
the Plans to contractors for bids. All contractors bidding on the Initial Tenant
Improvements shall be subject to Landlord's prior reasonable approval, which
approval shall not be unreasonably withheld. Tenant shall construct or cause to
be constructed in the Premises, all improvements in accordance with the
provisions of this Lease, and all applicable laws, codes, ordinances, statutes
and regulations. Tenant shall be responsible for all utilities consumed in the
Premises during the construction of the Initial Tenant Improvements. Tenant
shall also reimburse Landlord for its actual costs for rubbish removal during
the construction of the Initial Tenant Improvements if rubbish removal is not
provided directly by Tenant's contractor.
(b) During the construction of the Initial Tenant Improvements,
Landlord will not charge a "Coordination or administrative" fee (or any fees
associated with using the freight elevators) during normal business hours
(Monday-Friday, 8:00am-6:00pm). Currently, the after hours charge for using the
freight elevator is $60.00 per hour. However, Landlord will be reimbursed by
Tenant for Landlord's actual out-of-pocket if any of the following occur: (a)
Landlord pays for the services of an outside vendor or consultant in the process
of reviewing/approving Tenant's plans or construction; or (b) if Landlord incurs
actual costs in the coordination/assistance of Tenant during the construction
phase; or (c) a supervisory fee is incurred related to Tenant's use of the
loading dock or hoist after normal business hours (Monday-Friday,
8:00am-6:00pm).
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(c) Landlord shall provide Tenant with a Tenant Improvement
Allowance ("Allowance") for hard and soft costs in the amount of $35.00 per
rentable square foot or $563,570.00 based on 16,102 rentable square feet, of
which no more than $10.00 per rentable square foot shall be used to pay for the
soft costs associated with the Initial Tenant Improvements. Tenant may take, as
a base rental credit, up to $5.00 per rentable square foot of the soft costs.
The Allowance shall be disbursed through a construction escrow at Near North
National Title, LLC in substantially the form attached hereto as Exhibit D,
which escrow shall provide interest at competitive rates. In addition to the
Allowance, Landlord shall reimburse Tenant's space planner for one (1) original
set of space plans and one (1) revision.
(d) Upon execution of this Lease and mutual approval of the Plans
and costs for the Initial Tenant Improvements, if the cost of the Initial Tenant
Improvements exceeds the Allowance, Tenant shall deposit the difference in the
cost of the Initial Tenant Improvements and the Allowance into the construction
escrow. If as a result of a proposed change order, the cost of the Initial
Tenant Improvements increases, (and such increased cost exceeds the Allowance),
Tenant shall upon execution of such change order, deposit the amount of the
increase into the construction escrow. Any change order must be reviewed and
approved by Tenant and Landlord.
(e) Tenant's contractor shall make requests for payment no more
frequently than monthly (the "Draw"). Each Draw shall be submitted by Tenant's
contractor to Tenant for its review and approval. After Tenant has approved such
Draw, Tenant shall forward it to Landlord for its review and approval of the
Draw and its determination that the Initial Tenant Improvements are in
substantial compliance with the plans and specifications. Landlord shall review
and submit each Draw to Near North National Title, LLC for payment.
11. Entry and Inspection. Tenant shall permit Landlord or Landlord's agents
to enter the Premises at reasonable times upon reasonable notice (which can
include verbal notice, except that no notice is necessary if Landlord must enter
the Premises because of an emergency) for the purpose of inspecting the
Premises, performing any services required of Landlord under this Lease and
showing the Premises to potential and existing mortgagees and purchasers of the
Building and, during the last year of the Lease Term, prospective tenants of the
Building. Landlord shall use reasonable efforts to minimize any interference to
Tenant's business as a result of any such entry.
12. Indemnification. Tenant shall indemnify, defend (by counsel reasonably
acceptable to Landlord), protect and hold Landlord harmless from and against any
and all claims, demands, losses, damages, costs and expenses, including
reasonable attorneys' fees ("Damages"), arising out of or relating to Tenant's
default under this Lease or Tenant's use or occupancy of the Premises or caused
by acts of Tenant or its agents, employees or invitees, except to the extent
such Damages are caused by the negligence or willful misconduct of Landlord or
its agents or employees. Landlord shall not be liable to Tenant for any damage
caused by any act or negligence of any other tenant or occupant of the Building
or by any owner or occupant of adjoining or contiguous property, nor shall
Landlord be liable to Tenant other than for Landlord's negligence or willful
misconduct. Landlord shall indemnify, defend (by counsel reasonably acceptable
to Tenant), protect and hold Tenant harmless from and against any and all
Damages arising from the negligence or willful misconduct of Landlord or its
agents or employees.
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13. Tenant's Insurance.
13.1 Types of Insurance. At all times during the Lease Term, Tenant
shall, at its sole expense, maintain the following types of insurance coverage:
(a) comprehensive commercial general liability insurance
against any and all damages and liability arising from injuries to or death of
any person or damage to property, however occasioned, in, on or about the
Premises in amounts not less than $2,000,000 for injury or death of one or more
persons in a single accident and $100,000 for damage to property;
(b) property insurance adequate in amount to cover damage to
or replacement of, as necessary, the leasehold improvements paid for by Tenant,
trade fixtures, furnishings, equipment, goods and inventory;
(c) business interruption insurance in an amount equal to
all fixed Rent payable under this Lease for a period of at least 6 months
commencing with the date of loss;
(d) employer's liability insurance and worker's compensation
insurance providing benefits for all persons employed by Tenant in connection
with the Premises to the extent required by applicable law;
(e) if Tenant elects to serve liquor in the Premises or on
the outdoor deck, a policy or policies insuring Tenant, Landlord and such other
parties as designated by Landlord, against all liability now or hereinafter
imposed by law for damage on account of any claims which may arise by virtue of
the sale or distribution of any intoxicating beverages in or from the Premises,
including without limitation loss of means of support and loss of consortium,
under and by virtue of the Illinois Alcoholic Liquor Control Act or the Illinois
Liquor Control Act as may be amended or such other act or acts now or
hereinafter in effect or any other laws, ordinances, rules or regulations of any
other applicable governmental agency (including without limitation Illinois
"home rule units") superseding or supplementing any Illinois laws, ordinances,
rules or regulations. Such policy or policies shall provide that the liability
of the issuer shall be as provided by law, but in no event less than
$5,000,000.00 combined single limit respecting death or bodily injury in any one
occurrence (or such greater amount as Landlord reasonably may determine and
notify Tenant of from time to time), together with $500,000.00 minimum single
limits on loss of means of support/consortium and $500,000.00 minimum on
property losses. The policy or policies shall be maintained throughout the Term
(as may be extended), and the policy, policies or certificates thereof shall be
deposited with Landlord and shall name the additional insureds, and contain the
non-cancellation provisions, otherwise provided elsewhere in this Section; and
(f) such other insurance in such amounts as may be
reasonably required by Landlord from time to time.
13.2. Form of Insurance and Selection of Insurers. All insurance shall
be in a form satisfactory to Landlord and carried with companies reasonably
acceptable to Landlord that are licensed or authorized to do business in the
State of Illinois. On commencement of this Lease, Tenant shall provide Landlord
with a Certificate of Insurance, together with proof of payment of premium,
showing Landlord and, if requested by Landlord, Landlord's mortgagee as an
additional insured. The Certificate must provide for a 30-day written notice to
Landlord in the event of cancellation or material change of coverage. At least
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10 days prior to the expiration of any coverage, Tenant shall give Landlord
proof of renewals of or replacements for such insurance, together with proof of
payment of premium. If Tenant does not procure any contract of insurance or any
renewal or replacement required under this Xxxxxxxxx 00, Xxxxxxxx may, but shall
not be obligated to, procure such insurance on behalf of Tenant. The cost of the
insurance shall be payable to Landlord as additional rent on written demand.
13.3. Waiver of Subrogation. Landlord and Tenant release each other to
the extent of any amount recovered by such party by reason of insurance required
under this Lease, and each waives any right of subrogation in connection with
such loss, cost, damage or expense. Such release of liability and waiver of the
right of subrogation are not operative in any case where the effect is to
invalidate insurance or increase the cost of insurance (provided that in the
case of increased cost the party responsible for providing such insurance shall,
within 30 days following written notice, pay the increased cost and keep the
release and waiver in full force and effect).
14. Landlord's Insurance. Landlord shall maintain property and liability
insurance policies on the Building in amounts Landlord chooses, but not less
than commercially reasonable. The cost of such insurance, including the cost of
repairs paid by Landlord which are equal to or less than the amount of any
deductibles, shall be included as a part of the Operating Expenses, and any
property insurance proceeds payable under such policies shall be paid solely to
Landlord or its mortgagee[s].
15. Utilities and Services.
15.1 Separate Metering. The Premises are separately metered from the
Common Areas and the balance of the Building for utility services such as
electricity and similar services (except for those certain HVAC items which are
not separately metered in section 15.2 below), and Tenant shall pay, when due,
all charges for such utilities to the Premises and shall indemnify and hold
Landlord harmless from and against any and all liabilities and charges on
account thereof. Telephone service, including all installation, wiring, and
monthly charges, shall be the sole responsibility of Tenant.
15.2 HVAC. The HVAC for the Premises shall operate as follows:
(a) 12th Floor Heat. During regular business hours, the
twelfth (12th) floor is served by the building's central system, for
which the Tenant shall not be charged. There is also a gas powered
supplemental heating unit for the twelfth (12th) floor. The Tenant
shall be responsible for costs associated with operating this unit,
except that Landlord shall maintain the unit.
(b) 12th Floor AC. The twelfth (12th) floor is served by a
dedicated package unit. Electrical usage for AC will be at the Tenant's
expense and will be separately metered by Commonwealth Edison. Landlord
shall provide all necessary maintenance for the 12th Floor AC unit.
(c) 13th Floor Heat. There is a dedicated, forced air
heating unit for the thirteenth (13th) floor. The Tenant shall be
responsible with costs associated with operating this unit, except that
Landlord shall provide all necessary maintenance for the 13th Floor
heating unit.
(d) 13th Floor AC. The thirteenth (13th) floor is served by
a dedicated package unit. Electrical usage for AC will be at the
Tenant's expense and will be separately metered by Commonwealth Edison.
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Landlord shall provide all necessary maintenance for the 13th Floor AC
unit.
(e) The cost to maintain all HVAC systems will be borne by
the Landlord. Landlord confirms that there are no fees for chilled
water or condenser water for the supplemental HVAC systems. Tenant
shall have the right to install a supplemental HVAC unit in its server
room; the design and installation of which shall be subject to
Landlord's prior approval. The costs of installing, operating and
maintaining such supplemental unit shall be borne by Tenant.
15.3 Building Standard Services. Landlord shall furnish the Common
Areas and Premises with Building services equal to comparable River North office
buildings, including elevator service every day 24 hours per day and HVAC
service, Mondays through Fridays from 8:00 a.m. to 6:00 p.m. and Saturdays from
8:00 a.m. to 1:00 p.m., except that on holidays Landlord may reduce or eliminate
certain services as Landlord reasonably determines. Landlord shall provide
standard janitorial services Monday through Friday pursuant to the Janitorial
Specifications attached hereto and incorporated herein as Exhibit E. If these
services or utilities are not available for five (5) or more consecutive
business days and such failure in service is caused by Landlord's act or
omission, and the Premises are rendered untenantable as a result of such
interruption, then Tenant shall receive a day for day rent abatement for the
period during which the service or utility is not available. However, no such
failure shall constitute an eviction. Landlord shall not be liable for loss of
or injury to property in connection with Landlord's failure to furnish any of
the listed services. Tenant shall be solely responsible for any services it
requests that are beyond Building standard.
For the purpose hereof, "holidays" shall be limited to the following: New Year's
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and Christmas.
15.4 Water Usage. Tenant shall not be charged for incidental water
usage.
15.5 Additional Tenant Responsibilities. Tenant shall (i) not set
climate-control thermostats located in the Premises below 62(0)F during heating
seasons or above 85(0)F during cooling seasons; (ii) not waste utilities that
are not separately metered to the Premises; (iii) pay for all replacement
electrical light bulbs, tubes, ballasts and starters used and consumed in the
Premises; (iv) not use the Premises or Common Areas in a way that unreasonably
increases the costs of services and utilities not separately metered to the
Premises; and (v) make reasonably safe use of all services and utilities.
15.6 Payment. Payments due for any service or utility not separately
metered to the Premises shall be as Landlord reasonably determines based upon
applicable meter readings, applicable public utility rates and tariffs,
applicable reseller rates and tariffs, and the Premises' proportionate area or
share of use of such service or utility. Such amounts shall be deemed Additional
Rent payable by Tenant within 10 days after Landlord's rendering of a statement
therefor. If Tenant fails to pay for non-separately metered services and
utilities, Landlord may, in addition to all other remedies available to
Landlord, disconnect or cease such service or utility on not less than five
days' prior written notice to Tenant.
16. Condemnation. If any material portion (as reasonably determined by
Tenant) of the Premises is taken for public use, either party may elect to
terminate this Lease as of the date of taking. If less than a material portion
of the Premises is taken and a part remains that is reasonably suitable for
Tenant's use, this Lease shall, as to the part taken, terminate as of the date
14
of taking, and Tenant shall then pay such proportion of the rent for the
remaining term as the value of the Premises remaining bears to the total value
of the Premises at the date of the taking. Any election to terminate this Lease
as provided above must be exercised, if at all, within 60 days after the nature
and extent of the taking is determined or this Lease shall remain in full force
and effect. Tenant shall not share in the award that may be payable to Landlord
for any taking; Tenant may, however, seek a separate award for its trade
fixtures and moving expenses.
17. Destruction of Premises.
If the Premises are made substantially untenantable for more than
thirty (30) days by fire or other casualty not due to the act or neglect of
Tenant or its employees, agents or servants, Landlord may elect to: (i)
terminate this Lease as of the date of the fire or other casualty by giving
notice of termination to Tenant within 45 days after the date of the fire or
other casualty; or (ii) without terminating this Lease proceed with reasonable
diligence to repair or restore the Premises, other than leasehold improvements
paid for by Tenant, at Landlord's expense but not to exceed the amount of
insurance proceeds received by Landlord. If Landlord elects to repair or restore
the Premises, it shall provide Tenant, within 45 days after the date of the fire
or other casualty, with an estimate of the completion date of the repair or
restoration. If Landlord's estimate shows that the appropriate repairs or
restoration cannot be completed within 180 days after the date of the fire or
other casualty, then Tenant may, by giving written notice within 10 days after
receipt of Landlord's estimate, terminate this Lease as of the date of the fire
or other casualty by giving notice of termination to Landlord. If (i) Landlord's
estimate indicates that the repairs can be completed within 180 days from the
date of the fire or other casualty or (ii) neither party terminates this Lease
as provided above, Landlord, at Landlord's expense, shall proceed with
reasonable diligence to repair or restore the Premises, other than leasehold
improvements paid for by Tenant, but not to exceed the amount of insurance
proceeds received by Landlord. If such repair or restoration is begun by
Landlord but is not completed by the expiration of the 180-day period, which
period shall be extended by any delays caused by the insurance process, by
Tenant or by other events beyond Landlord's reasonable control, then Tenant may,
upon 10 days written notice to Landlord, terminate this Lease. If this Lease is
not terminated, rent shall xxxxx for all or that part of the Premises that are
rendered untenantable on a per diem basis from and after the date of the fire or
other casualty until the Premises are substantially repaired or restored.
Notwithstanding the foregoing, if such damage occurs during the last 12
months of the Lease Term, either party may terminate this Lease as of the date
of the fire or other casualty by delivering written notice of termination to the
other party within 30 days after the date of such fire or other casualty.
18. Hazardous Substances. Tenant shall not cause or allow any Hazardous
Substance (as defined below) to be brought in, kept or used in or about the
Building by Tenant or its agents, employees, contractors or invitees, other than
standard cleaning materials. Tenant shall indemnify, defend (by counsel
reasonably acceptable to Landlord) and hold Landlord harmless from and against
any and all claims, damages, fines, judgments, penalties, costs, liabilities or
losses (including without limitation any and all sums paid for settlement of
claims, reasonable attorneys' fees, consultant fees and expert fees) arising as
a result of Tenant's violation of the obligations set forth in the preceding
sentence. This indemnification shall survive the termination of this Lease, and
includes, without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal or restoration mandated by
federal, state or local agency or political subdivision. For purposes of this
Paragraph 18, "Environmental Law" means any federal, state or local law,
15
statute, ordinance or regulation pertaining to health, industrial hygiene or the
environment, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 and the Resource Conservation
and Recovery Act of 1976. "Hazardous Substance" means any substance, material or
waste which is or becomes designated, classified or regulated as being "toxic"
or "hazardous" or a "pollutant" or which is or becomes similarly designated,
classified or regulated under any Environmental Law, including asbestos,
petroleum and petroleum products.
Landlord represents that to its actual knowledge, no "Hazardous
Substance" currently exists in the Building or the Premises.
19. Events of Default. Each of the following is an event of default ("Event
of Default") under this Lease:
(a) if Tenant abandons the Premises;
(b) if Tenant does not pay any monthly Base Rent when due, and such
failure to pay continues for five (5) days after written notice;
(c) if Tenant does not pay any sum or charge payable by Tenant under
this Lease, other than Base Rent when due and such failure to pay continues for
five (5) days after written notice;
(d) if Tenant does not perform or observe any agreement, covenant,
condition or provision of this Lease other than the payment of money and such
failure continues for thirty (30) days after written notice or such reasonable
additional time as is necessary to cure provided such cure is being diligently
pursued by Tenant;
(e) if Tenant (i) files or consents to the filing against it of a
petition for relief or reorganization or any other petition in bankruptcy or
liquidation; or (ii) makes an assignment for the benefit of its creditors; or
(iii) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers for all or a substantial part of its property;
(f) if a petition is filed against Tenant without Tenant's consent
for (i) the appointment of a custodian, receiver, trustee or other officer with
similar powers for all or a substantial part of Tenant's property; (ii) relief
or reorganization or any other petition in bankruptcy or insolvency; (iii) the
dissolution, winding up or liquidation of Tenant, and any such petition
described in (i), (ii) or (iii) above is not dismissed within 60 days;
(g) if this Lease or Tenant's interest in this Lease is levied upon
under any attachment or execution and the attachment or execution is not vacated
within 60 days; or
(h) if Tenant assigns this Lease or subleases all or any portion of
the Premises in violation of Paragraph 8 above.
20. Landlord's Remedies on Default. If an Event of Default occurs, Landlord
may, at its option, terminate this Lease and repossess the Premises pursuant to
state law, without demand or notice of any kind to Tenant, and recover from
Tenant as damages:
16
(a) the unpaid rent and other amounts due at the time of such
termination plus interest on such amounts at the rate set forth in Subparagraph
2.2 above from the due date until paid; plus
(b) the present value of the rent payable under the Lease for the
remainder of the Lease Term after the termination less the present value of the
fair rental value of the Premises, for that period (both determined by applying
a discount rate equal to the prime rate then published in The Wall Street
Journal); plus
(c) any other amount necessary to compensate Landlord for damages
caused by Tenant's failure to perform its obligations under this Lease,
including without limitation the cost of recovering the Premises.
In the alternative, Landlord may terminate Tenant's right of possession (but not
this Lease) and repossess the Premises pursuant to state law, without demand or
notice of any kind to Tenant. In that event, Landlord may relet the Premises for
the rent and upon such terms as shall be satisfactory to Landlord. For the
purpose of such reletting Landlord is authorized by Tenant to decorate or to
make any repairs, changes, alterations or additions in or to the Premises that
may be necessary or convenient. Tenant shall pay all reasonable costs of
re-letting, including without limitation, brokerage commissions and reasonable
attorneys' fees, and shall be liable for any difference between the rent
collected from such re-letting and the total rental and all other payments
required under this Lease for the unexpired balance of the Lease Term. In
addition, Landlord may exercise any and all other rights and remedies available
to Landlord at law or in equity. In exercising any of its rights and remedies
under this Xxxxxxxxx 00, Xxxxxxxx shall use reasonable efforts to mitigate
damages.
21. Security Deposit. The Security Deposit set forth in Paragraph 1 secures
Tenant's performance of its obligations under this Lease, including without
limitation its obligations to pay Base Rent and Operating Expense Rent. Landlord
may apply all or portions of the Security Deposit if Tenant does not perform all
of its obligations, and Tenant shall replace the amount so applied within 10
days after demand from Landlord. Tenant expressly acknowledges that Tenant may
not apply all or any portion of the Security Deposit to the payment of rent
under this lease, and if it attempts to do so, late charges and penalties shall
accrue until rent is paid in full without regard to the Security Deposit. If
Tenant is not in default, any balance of the Security Deposit remaining at the
expiration of the Lease Term shall be returned promptly to Tenant, without
interest. If the Building is sold, Landlord may transfer the Security Deposit to
the purchaser. Upon a transfer, Landlord shall have no further liability with
respect to the Security Deposit, and Tenant shall look solely to the purchaser
for the return of the Security Deposit. Landlord need not keep the Security
Deposit in a segregated account, and the Security Deposit may be commingled with
other funds of Landlord.
22. Limitation on Landlord's Personal Liability. Tenant shall look solely
to Landlord's interest in the Building for the recovery of any judgment from
Landlord, it being agreed that neither Landlord nor any of its officers,
shareholders, directors, partners or employees shall be personally liable for
any such judgment in favor of Tenant.
23. Attorneys' Fees. If either party to this Lease institutes any suit
against the other party to enforce this Lease, the prevailing party shall be
entitled to all of its costs, expenses and reasonable attorneys' fees in
connection with the suit.
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24. Waiver. No failure of Landlord to enforce any term of this Lease shall
be deemed to be a waiver of such term.
25. Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then it is the intention
of the parties that the remaining provisions of this Lease shall continue in
full force and effect.
26. Notices. Except as specifically provided to the contrary in this Lease,
all notices under this Lease to be enforceable at law or in equity must be in
writing, and shall be deemed given (i) when personally delivered (including by
means of professional messenger service), (ii) one business day after being sent
by overnight courier, with request for next business day delivery, or (iii) 2
business days after being sent by registered or certified mail, postage prepaid,
return receipt requested, to the address set forth in Paragraph 1 with respect
to Tenant, and to Xxxxxxxx Properties, Ltd., 000 Xxxxx XxXxxxx Xxxxxx - Xxxxx
000, Xxxxxxx, Xxxxxxxx 00000, with respect to Landlord.
27. Surrender of Premises. On the last day of the Lease Term or on any
earlier termination, Tenant shall surrender the Premises to Landlord in the
condition existing after completion of the Initial Tenant Improvements, ordinary
wear and tear and damage by fire or other casualty excepted, free and clear of
debris. At the time Landlord consents to any additional alterations, Landlord
shall advise Tenant whether Landlord shall require Tenant to remove such tenant
improvements at the end of the Lease Term. Landlord may require the removal of
any improvements that Tenant makes without Landlord's approval, or which do not
require Landlord's approval. Any improvements that Landlord does not require to
be removed shall belong to Landlord without compensation, allowance or credit to
Tenant, except movable trade fixtures, furnishings and equipment of Tenant that
can be removed without defacing the Premises or the Building. Tenant shall
repair any damage to the Premises occasioned by the installation or removal of
Tenant's trade fixtures, furnishings and equipment.
28. Holding Over. Any holding over after the expiration or termination of
this Lease shall be construed as a tenancy at sufferance at a rental of 150% of
the rent payable in the month immediately preceding the month in which the
expiration or termination occurred, and otherwise in accordance with the terms
of this Lease. If Tenant becomes a holdover tenant, Tenant shall also indemnify
Landlord against all claims as a result of Tenant's possession of the Premises,
including without limitation claims for damages by any tenant to whom Landlord
may have leased some or all of the Premises, for a term commencing after the
expiration or termination of this Lease.
29. Time. Time is of the essence of this Lease.
30. Successors and Assigns. This Lease is binding on and inures to the
benefit of Landlord and Tenant and their respective successors and assigns, so
long as, with respect to Tenant, its assigns are approved by Landlord pursuant
to this Lease.
31. Subordination/Non-Disturbance & Attornment. This Lease is subordinate
to the lien of any mortgages which are now or at any future time are placed on
the Building, the Premises or Landlord's rights under this Lease, and to any
renewals, extensions, modifications or consolidations of any mortgage so long as
such mortgagee agrees not to disturb Tenant's use and occupancy of the Premises
if there is no uncured Event of Default by Tenant. To confirm subordination,
Tenant shall execute a Subordination Non-Disturbance and Attornment Agreement in
18
the form attached hereto as Exhibit F. Landlord shall obtain any existing
mortgagee's signature on such Subordination, Non-Disturbance and Attornment
Agreement following execution of this Lease.
32. Estoppel Certificate. Tenant shall, within 10 days' after receiving a
written request from Landlord, execute, acknowledge and deliver to Landlord a
statement in writing: (a) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of the modification and
certifying that this Lease, as so modified, is in full force and effect), the
amount of any security deposit, and the date to which the rent and other charges
are paid in advance, if any; (b) acknowledging that there are not, to Tenant's
knowledge, any uncured defaults on the part of Landlord hereunder, or specifying
defaults if any are claimed; and, if part of the certification (c) confirmation
of subordination as outlined in Paragraph 31 above. All prospective purchasers
or mortgagees of the Building may conclusively rely on the statement. Tenant's
failure to deliver the statement shall be conclusive on Tenant that this Lease
is in full force and effect, without modification except as may be represented
by Landlord, that there are no uncured defaults of Landlord, that not more than
one month's rent has been paid in advance, and that subordination of this Lease
is confirmed. If Tenant does not respond to Landlord's request in a timely
manner, Landlord may complete such a statement and sign it on behalf of Tenant,
and Tenant acknowledges that Landlord and third parties may rely on such a
statement.
33. Right of First Refusal. Provided that the Lease is in full force and
effect, and there is no uncured Tenant default, Landlord hereby grants to Tenant
a continuing right of first refusal ("First Refusal Right"), subject to the
senior rights (in existence on the date hereof) of other tenants currently under
lease, to lease the following space in the Building: the adjacent 11th Floor
space ("Option Space"), on the following terms and conditions:
a. If Landlord receives an offer to Lease all or a portion
of the Option Space, (and if all the holders of superior rights
have waived their rights) Landlord shall provide written
notice ("Landlord's Notice") to Tenant identifying the portion
of the Option Space, the term of the proposed lease and the
payment obligations thereunder.
b. Tenant shall have three (3) business days after receipt
of Landlord's Notice to deliver to Landlord a legally binding
commitment to lease the same portion of the Option Space on
the terms set forth in Landlord's Notice. In the event Tenant
does not respond within said three (3) business day period,
Tenant will be conclusively deemed to have waived its First
Refusal Right and Landlord shall be free to lease the Option
Space to the offeror. In the event Landlord does not enter
into a lease with the offeror for the Option Space, Tenant's
First Refusal Right shall be reinstated.
34. Renewal Option. So long as this Lease is in full force and effect and
Tenant is not in default under this Lease, at the time the Renewal Option
(hereinafter defined) is exercised, or at the commencement of the Renewal Term
(hereinafter defined), Tenant shall have the option ("Renewal Option") to renew
this Lease for one five-year term ("Renewal Term") on the same terms and
conditions as set forth herein. In order to exercise the Renewal Option, Tenant
shall give Landlord at least twelve (12) months' written notice thereof prior to
the expiration of the initial Term. In the event Tenant exercises the Renewal
Option, Base Rent for the initial year of the Renewal Term shall be at 95% of
19
fair market value during the Renewal Term, and Base Rent for subsequent years
shall be subject to market escalation during the Renewal Term. Landlord shall
reasonably determine fair market value, but Landlord shall provided reasonable
supporting documentation for its determination.
35. Storage Space. Landlord shall cause its affiliates to provide up to 500
rentable square feet of storage space to Tenant located at 57 West Grand or
another property managed by Landlord's managing agent at an initial charge of
$10.00 per square foot on a gross basis, subject to annual escalations. If
storage space is leased subsequent to the execution of this Lease, the initial
base rental rate for such additional storage space will then be at prevailing
market rates. At such time Tenant desires to lease to such storage space from
Landlord's affiliate, Tenant shall execute a storage lease with the owner of the
building in which the storage space is located.
36. Authorization. If Tenant executes this Lease as a corporation, limited
liability company or partnership, then Tenant and the person(s) executing this
Lease on behalf of Tenant represent and warrant that the entity is duly
qualified to do business in the State of Illinois and that the individuals
executing this Lease on Tenant's behalf are duly authorized to execute and
deliver this Lease on Tenant's behalf.
37. Joint and Several Liability. In the event that more than one person or
entity executes the Lease as Tenant, they all are jointly and severally liable
for all of Tenant's obligations hereunder.
38. Force Majeure. Each party to this Lease is excused for the period of
any delay in performing of its obligations under this Lease when prevented from
doing so by causes beyond its reasonable control.
39. Recording. Tenant shall not record this Lease or any memorandum or
short form of this Lease.
40. Governing Law. The laws of the State of Illinois govern this Lease.
41. Jury Waiver. LANDLORD AND TENANT HEREBY KNOWINGLY AND INTENTIONALLY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT LANDLORD OR
TENANT MAY INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS LEASE OR THE LEASED PREMISES.
42. Covenant of Quiet Enjoyment. So long as Tenant is not in default under
this Lease beyond any cure period, Tenant's peaceful and quiet possession of the
Premises during the Lease Term shall not be disturbed by Landlord or by anyone
claiming by, through or under Landlord.
43. Encumbrances. Other than the rights articulated in the "Right of First
Refusal" section above, Landlord warrants that no other tenant in the Building
currently has any senior rights to the Premises.
44. Real Estate Broker Disclosure. Tenant represents that the Tenant has
dealt with (and only with) CB Xxxxxxx Xxxxx, as broker in connection with this
Lease and that insofar as the Tenant knows, no other broker negotiated this
Lease or is entitled to any commission in connection therewith. Tenant agrees to
indemnify, defend and hold Landlord and it beneficiaries, employees, agents,
their officers and partners, harmless from and against any claims made by any
other broker or finder for a commission or fee in connection with this Lease,
provided that Landlord has not in fact retained such broker or finder.
20
45. Entire Agreement. This Lease, including all attached Schedules and
Exhibits, is the entire agreement between the parties and may be modified only
by a writing signed by both parties.
46. Construction of Lease Document. This Lease shall not be construed more
strictly against Landlord than against Tenant, merely by virtue of the fact that
the same has been prepared by counsel for Landlord, it being recognized that
Tenant and Landlord have contributed substantially and materially to the
preparation of this Lease, and Tenant and Landlord each acknowledges and waives
any claim contesting the existence and the adequacy of the consideration given
by the other in entering into this Lease.
47. Third Party Disclosure. The terms and conditions of the Lease are
strictly confidential and may not be disclosed by Tenant to third parties
(except Tenant's lenders, attorneys, accountants, or as required under Tenant's
corporate reporting requirements) without the prior written consent of Landlord,
except as required by judicial process.
[Remainder of this page intentionally left blank.]
21
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the day and year first above written.
LANDLORD
by XXXXXXXX PROPERTIES, LTD., an Illinois corporation
(Managing Agent)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------------------
Xxxxxx X. Xxxxxxxx, President
TENANT
INFORTE CORP., a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Its: Facilities Director
22
EXHIBIT A
---------
PLAN OF LEASED PREMISES
[Exhibit A-1 and A-2 follow this page.]
23
EXHIBIT B
---------
RULES AND REGULATIONS
1. In the event of any conflict between the terms of these rules
and regulations and the express provisions of the Lease, the Lease shall
control. Landlord reserves the right to rescind, add to and amend any rules or
regulations, to add new reasonable rules or regulations and to waive any rules
or regulations with respect to any tenant or tenants, provided that such rules
are applied in a non-discriminatory manner. Tenant shall make available a copy
of these rules and regulations to each of its employees to facilitate compliance
with these standards.
2. The sidewalks, walks, plaza entries, corridors, ramps,
staircases and elevators of the Building shall not be obstructed, and shall not
be used by Tenant, or the employees, agents, servants, visitors or invitees of
Tenant, for any purpose other than ingress and egress to and from the Premises.
No skateboards, roller skates, roller blades or similar items shall be used in
or about the Building.
3. No freight, furniture or other large or bulky merchandise or
equipment of any description shall be received into the Building or carried into
the elevators except in such a manner, during such hours and using such
elevators and passageways as may be approved or designated by Landlord, and then
only upon having been scheduled in advance. Any hand trucks, carryalls, or
similar equipment used for the delivery or receipt of merchandise or equipment
shall be equipped with rubber tires, side guards and such other safeguards as
Landlord shall reasonably require. Although Landlord or its personnel may
participate or assist in the supervision of such movement, Tenant assumes
financial responsibility for all risks as to damage to articles moved and injury
to persons or public engaged or not engaged in such movement, including any
equipment, property or personnel of Landlord damaged or injured in connection
with carrying out this service for Tenant.
4. Landlord shall have the right to prescribe the weight, position
and manner of installation of safes or other heavy equipment which shall, if
considered necessary by Landlord, be installed in a manner which shall insure
satisfactory weight distribution. All damage done to the Building by reason of a
safe or any other article of Tenant's office equipment being on the Premises
shall be repaired at the expense of Tenant. The time, routing and manner of
moving safes or other heavy equipment shall be subject to prior approval by
Landlord.
5. Only persons authorized by Landlord shall be permitted to
furnish newspapers, ice, towels, barbering, shoe shining, janitorial services,
floor polishing and other similar services and concessions in the Building, and
only at hours and under regulations fixed by Landlord.
6. Tenant, or the employees, agents, servants, visitors or invitees
of Tenant, shall not at any time place, leave or discard any rubbish, paper,
articles or object of any kind whatsoever outside the doors of the Premises or
in the corridors or passageways of the Building.
7. Tenant shall not place, or cause or allow to be placed, any
sign, placard, picture, advertisement, notice or lettering whatsoever, on the
exterior of the Premises, (or visible from the outside of the Premises), or in,
about or on the Building or the exterior of the Building except in and at such
places as may be designated by Landlord and consented to by Landlord in writing.
Any such sign, placard, advertisement, picture, notice or lettering so placed
without such consent Landlord may remove without notice to and at the expense of
24
Tenant. All lettering and graphics on corridor doors shall conform to the
building standard prescribed by Landlord.
8. Tenant shall not place, or cause or allow to be placed, any
satellite dish, communications equipment, computer or microwave receiving
equipment, antennae or other similar equipment on the exterior of the Premises,
Building or Building without Landlord's consent, which consent may be withheld
in Landlord's sole discretion. Landlord may remove any such equipment so placed
without notice to and at the expense of Tenant.
9. Canvassing, soliciting or peddling in the Building and/or
Building is prohibited and Tenant shall cooperate reasonably to prevent same.
10. Landlord shall have the right to exclude any person from the
Building, and any person in the Building shall be subject to identification by
employees and agents of Landlord. Any persons in or entering the Building shall
be required to comply with the security policies of the Building, including,
without limitation, the showing of suitable identification and signing of a
Building register when entering or leaving the Building. If Tenant desires
additional security service for the Premises, Tenant shall have the right (with
advance written consent of Landlord) to obtain such additional service at
Tenant's sole cost and expense. Tenant shall keep doors to unattended areas
locked and shall otherwise exercise reasonable precautions to protect property
from theft, loss or damage. Landlord shall not be responsible for the theft,
loss or damage of any property or for any error with regard to the exclusion
from or admission to the Building of any person. In case of invasion, mob, riot
or public incitement, the Landlord reserves the right to prevent access to the
Building during the continuance of same by closing the doors or taking other
measures for the safety of the tenants and protection of the Building and
property or persons therein.
11. Only workmen employed, designated or approved by Landlord may be
employed for repairs, installations, alterations, painting, material moving and
other similar work that may be done in or on the Building.
12. Tenant shall not bring or permit to be brought or kept in or on
the Premises or Building any flammable, combustible, corrosive, caustic,
poisonous, or explosive substance, or firearms, or cause or permit any odors to
permeate in or emanate from the Premises, or permit or suffer the Building to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building by reason of light, radiation, magnetism, noise, odors
and/or vibrations.
13. Except as permitted by Section 10 of the Lease, Tenant shall not
xxxx, paint, drill into, or in any way deface any part of the Building or the
Premises. No boring, driving of nails or screws, cutting or stringing of wires
shall be permitted, other than for hanging standard-weight decorative pictures,
paintings or other artwork, except with the prior written consent of Landlord
which consent shall not be unreasonably withheld or delayed. Tenant shall not
install any resilient tile or similar floor covering in the Premises except with
the prior approval of Landlord, which approval shall not be unreasonably
withheld or delayed.
14. No additional locks or bolts of any kind shall be placed on any
door in the Building or the Premises and no lock on any door therein shall be
changed or altered in any respect. Tenant shall not make duplicate keys. All
keys shall be returned to Landlord upon the termination of this Lease and Tenant
shall give to Landlord the explanations of the combinations of all safes, vaults
and combination locks remaining with the Premises. Landlord may at all times
25
keep a passkey to the Premises. All entrance doors to the Premises shall be left
closed at all times and left locked when the Premises are not in use.
Landlord-assisted entries into the Premises shall bear a standard service charge
of $50.00 per entry.
15. Tenant shall give reasonable notice to Landlord in case of known
theft, unauthorized solicitation or accident in the Premises or in the Building,
or of known defects therein or in any fixtures or equipment, or of any known
emergency in the Building.
16. No animals or birds shall be brought or kept in or about the
Building, with the exception of guide dogs accompanying visually handicapped
persons.
17. No awnings, draperies, shutters or other interior or exterior
window coverings that are visible from the exterior of the Building or from the
exterior of the Premises within the Building may be installed by Tenant without
Landlord's prior written consent, which consent shall not be unreasonably
withheld; provided that it shall not be unreasonable for Landlord to withhold
its consent if Landlord requires uniform window treatments on all windows in the
Building.
18. Tenant shall not place, install or operate within the Premises
or any other part of the Building any engine, stove, or machinery, or conduct
mechanical operations therein, without the written consent of Landlord.
19. No portion of the Premises or any other part of the Building
shall at any time be used or occupied as sleeping or lodging quarters.
20. Tenant shall at all times keep the Premises neat and orderly.
21. The toilet rooms, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein. The
expenses of any breakage, stoppage or damage, resulting from the violation of
this rule shall be borne by the Tenant who (or whose employees or invitees)
shall have caused such damage.
22. All tenant modifications resulting from alterations or physical
additions in or to the Premises must conform to all applicable building and fire
codes. Tenant shall obtain written approval from the management office prior to
commencement of any such modifications and shall deliver as built plans to the
management office upon completion.
23. Tenant agrees to place all indoor potted plants requiring water
within a container capable of collecting any water overflow, such containers to
be approved and/or supplied by Landlord, at Tenant's sole expense. Tenant agrees
to use caution so that indoor plants do not damage or soil the Premises.
26
EXHIBIT C
---------
TENANT'S EXTERIOR SIGNAGE
27
EXHIBIT D
---------
OWNER AND TENANT'S CONSTRUCTION ESCROW AGREEMENT
[Exhibit "D" follows this page.]
28
EXHIBIT E
---------
JANITORIAL SPECIFICATIONS
TENANT AREAS
------------
Vacuum all carpeted areas, moving light furniture, except for desks, file
cabinets, etc. nightly.
Completely damp mop all cafeterias/vending areas, kitchens and coffee rooms
nightly.
Sweep and spot damp mop all uncarpeted areas including wood flooring to remove
spills, stains, heel marks, etc. Remove gum, tar and other foreign matter
adhering to floors. Completely damp mop all heavily trafficked areas, including
corridors, entrance areas, cafeterias/vending areas, kitchens and coffee rooms
nightly.
Empty all waste containers and replace plastic liners as necessary in accordance
with the buildings recycling program. Damp wipe waste containers as necessary.
Can liners to be furnished by Landlord.
Remove waste paper and waste materials to the dock area of the building using
janitor carts/carriages. Clear heavy duty plastic liners used in janitor
carts/carriages will be supplied by the Contractor. Contractor's personnel to
place waste material in compactors in accordance with the building's recycling
program and operate compactors nightly. All trash receptacles will be secured
with lock and chain as necessary.
Dust with a treated cloth or mitt all horizontal surfaces that can be reached
without a ladder, i.e., desks, file cabinets, binder bins, cubicles, window
xxxxx, book cases, ledges, trim, etc. nightly
Damp wipe and towel dry conference room tables nightly.
Spot clean to remove dirt, finger marks, smudges, etc. from all doors
doorframes, switch plates, walls, glass areas adjacent to doors, push plates,
handles, railings, etc. nightly. Clean polish and sanitize all drinking
fountains and water coolers using germicidal solution nightly.
Wet sponge wipe table tops in employee lounges nightly.
Spot clean all glass entrance doors and side panels to remove finger marks,
smudges, etc. nightly.
Turn off lights and secure space, double locking doors as necessary, when work
assignments are complete nightly.
Leave Venetian blinds in the down position nightly.
Wash all glass entrance doors and side panels inside and out once per week.
Dust baseboards, chair rails, trim, louvers, moldings and other "low-dust" areas
once per week.
Thoroughly damp mop uncarpeted areas once per week.
29
Wipe clean and sanitize all telephones with germicidal detergent using
disposable paper wipes which will be disposed of after use on each telephone
once per week.
Machine scrub and recondition all resilient and rubber floors and vestibule
areas using buffable non- slip type floor finish. Remove all scuffs, tar, gum
and other marks once every four months.
Machine strip, refinish and buff all resilient tile and other hard surface
flooring using an approved, high solid, non-slip, non-staining, buffable floor
finish once every four months.
Wash and clean baseboards during floor refinishing operations once every four
months.
MAIN ENTRANCES
--------------
Dust-sweep and wash hard surfaced flooring weekly. Remove gum, tar and other
foreign matter from flooring nightly.
If floor mats have been used during the day, they shall be thoroughly vacuumed
and cleaned nightly.
Clean building directory, mail depository and all other decorative metal; as
needed using a cloth dampened with water only nightly.
Completely clean all entrance and revolving door glass and entryway glass
sidelights; clean all glass in building directory nightly.
Police outside of entry only for debris nightly.
Empty and clean all waste receptacles and remove waste material to designated
areas in the building. Dispose of waste and replace plastic liners in accordance
with the building's recycling program nightly.
Clean public telephones with germicidal spray product and disposable paper wipe.
Discard wipe after each use. Dust the phone case and wooden booth using a cloth
dampened with water only nightly.
Remove dirt, finger marks, smudges, etc. from doors, doorframes walls up to
twelve feet, switch plates, glass, push plates handles, railings, moldings, trim
etc. Damp wipe metal trim as necessary using water only weekly.
Spray-buff marble, terrazzo and similar flooring using materials recommended by
marble installer weekly.
Using materials recommended by marble installer, machine strip, refinish and
buff marble and similar flooring using non-staining, non-slip, buffable floor
finish as necessary but not less frequently than once per month.
Do high dusting to include light lenses and fans up to level of twelve feet once
per month.
Completely clean floor mats as necessary, but not less than once per month,
using method(s) recommended by floor mat manufacturer(s).
30
ELEVATOR LOBBIES AND PUBLIC CORRIDORS
-------------------------------------
Dust-sweep and wash hard surfaces flooring. Remove gum, tar and other foreign
matter from flooring nightly.
Thoroughly vacuum and remove spots and stains from carpeting, including edges
and corners nightly
Empty and clean waste receptacles in accordance with the building's recycling
program (replace plastic liners), ash trays, etc. empty and clean cigarette urns
and replace sand or water as needed nightly.
..
Dust baseboards, trim, louvers, moldings, pictures, doors, planters, and all
other fixtures, etc. within reach. Wipe clean all signage nightly.
Remove dirt, finger marks, smudges, etc. from doors, door frames, wall, switch
plates, glass, push plates, handles, railing, molding, trim, etc. Wipe metal
trim as necessary using cloth dampened with water only weekly.
Wash and spray buff tile, terrazzo, marble, etc. flooring weekly.
Machine strip, refinish and buff resilient tile, terrazzo, marble, etc. flooring
using approved, non-slip, non-staining, buffable floor finish once every two
months.
Do high dusting once every three months.
LAVATORIES AND SHOWERS
----------------------
Sweep and wash flooring with approved germicidal detergents at disinfectant
strengths nightly.
Wash and polish mirrors nightly and all chrome and other bright work including
shelves, flushometers, exposed piping, toilet seat and partition hinges,
dispensers, and all other washroom fixtures nightly.
Wash all surfaces of toilets and urinals with approved germicidal detergent
solution at disinfectant strength. Bowl cleaner to be used in the interior
nightly.
Wash clean all wash basins and counter tops nightly.
Empty and clean towel and sanitary disposal receptacles and waste material and
refuse to designated area in the building using janitor carts/carriages. Replace
liners in all receptacles with liners supplied by the building. Wash clean
receptacles nightly.
Spot clean partitions, tile walls or painted walls, and doors with special
attention to areas behind sinks, around urinals and around entrance. Remove
graffiti weekly.
Clean and flush floor and other drains using germicidal detergent solutions once
per week.
31
Remove hard water stains from toilet fixtures by using one ounce of bowl cleaner
after normal cleaning once per week.
Refill toilet paper, paper towels, hand soap and sanitary products nightly.
Supplies to be furnished by "Landlord".
Machine scrub flooring with approved germicidal detergent solution once per
month. Floor shall be cleaned per manufacturers' recommendations.
Wash partition, tile walls and enamel painted surfaces with approved germicidal
detergent solution once per month.
Do high dusting and damp wipe ceiling vents once per month.
STAIRWAYS
---------
Police stairwells and remove trash and debris nightly.
Spot clean doors, windows and walls weekly.
Dust mop stair and landings; dust handrails and other horizontal surfaces
weekly.
Dust all vertical surfaces and light fixtures not dusted weekly once per month.
Wash stairs and landings once per month.
Do high dusting in stairwells once every three months.
ELEVATORS
---------
Floors in elevator cabs will be properly maintained. Vacuum and remove spots
from carpeted areas and sweep and wash hard surfaces nightly
Clean and polish doors, inside and outside, using a cloth dampened with water
only as nightly.
Hand clean and polish baseboards, trim railings, etc. using a cloth dampened
with water only nightly.
Keep walls, panels, buttons, etc. clean and free form finger marks and smudges
nightly.
Clean elevator saddles, door tracks, etc. once per month..
Clean carpeting by method recommended by manufacturer as necessary, but not less
than once per month.
Scrub and re-wax tile floor or terrazzo flooring once per month.
32
EXHIBIT F
---------
FORM OF SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[Exhibit "F" follows this page.]
33
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
("Agreement") is entered into as of July ____, 2005 (the "Effective Date") by
and between GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation
(together with its successors and assigns, the "Mortgagee"), and INFORTE CORP.,
a Delaware corporation (hereinafter, collectively the "Tenant"), with reference
to the following facts:
A. The Xxxxx Building Group, LLC, an Illinois limited
liability company whose address is 000 Xxxxx XxXxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 (the "Landlord") owns fee simple title or a leasehold interest in
the real property described in Exhibit "A" attached hereto (the "Property").
B. Mortgagee has made a loan to Landlord (the "Loan").
C. To secure the Loan, Landlord has encumbered all of the
Property by entering into that certain Mortgage dated July 30, 2004 in favor of
Mortgagee (as amended, increased, renewed, extended, spread, consolidated,
severed, restated, or otherwise changed from time to time, the "Mortgage") to be
recorded in the Recorder of Deeds' Office in and for the County of Xxxx, State
of Illinois.
D. Pursuant to the Lease between Landlord and Tenant, as
may be subsequently modified and amended (collectively the "Lease"), Landlord
demised to Tenant a portion of the Property consisting of the following (the
"Leased Premises"): approximately 16,102 rentable square feet at 500-510 North
Dearborn.
E. Tenant and Mortgagee desire to agree upon the relative
priorities of their interests in the Property and their rights and obligations
if certain events occur.
NOW, THEREFORE, for good and sufficient consideration, Tenant
and Mortgagee agree:
1. Definitions. The following terms shall have the following meanings for
purposes of this Agreement.
a. Foreclosure Event. A "Foreclosure Event" means: (i) foreclosure
under the Mortgage; (ii) any other exercise by Mortgagee of rights and remedies
(whether under the Mortgage or under applicable law, including bankruptcy law)
as holder of the Loan and/or the Mortgage, as a result of which a Successor
Landlord becomes owner of the Property; or (iii) delivery by Landlord to
Mortgagee (or its designee or nominee) of a deed or other conveyance of
Landlord's interest in the Property in lieu of any of the foregoing.
b. Former Landlord. A "Former Landlord" means Landlord and any
other party that was landlord under the Lease at any time before the occurrence
of any attornment under this Agreement.
c. Offset Right. An "Offset Right" means any right or alleged right
of Tenant to any offset, defense (other than one arising from actual payment and
performance, which payment and performance would bind a Successor Landlord
34
pursuant to this Agreement), claim, counterclaim, reduction, deduction, or
abatement against Tenant's payment of Rent or performance of Tenant's other
obligations under the Lease, arising (whether under the Lease or under
applicable law) from Landlord's breach or default under the Lease.
d. Rent. The "Rent" means any fixed rent, base rent or additional
rent under the Lease.
e. Successor Landlord. A "Successor Landlord" means any party that
becomes owner of the Property as the result of a Foreclosure Event.
f. Termination Right. A "Termination Right" means any right of
Tenant to cancel or terminate the Lease or to claim a partial or total eviction
arising (whether under the Lease or under applicable law) from Landlord's breach
or default under the Lease.
g. Other Capitalized Terms. If any capitalized term is used in this
Agreement and no separate definition is contained in this Agreement, then such
term shall have the same respective definition as set forth in the Lease.
2. Subordination. The Lease, as the same may hereafter be modified,
amended or extended, shall be, and shall at all times remain, subject and
subordinate to the lien imposed by the Mortgage, and all advances made under the
Mortgage.
3. Nondisturbance, Recognition and Attornment.
a. No Exercise of Mortgage Remedies Against Tenant. So long as the
Tenant is not in default under this Agreement or under the Lease beyond any
applicable grace or cure periods (an "Event of Default"), Mortgagee (i) shall
not terminate or disturb Tenant's possession of the Leased Premises under the
Lease, except in accordance with the terms of the Lease and (ii) shall not name
or join Tenant as a defendant in any exercise of Mortgagee's rights and remedies
arising upon a default under the Mortgage unless applicable law requires Tenant
to be made a party thereto as a condition to proceeding against Landlord or
prosecuting such rights and remedies. In the latter case, Mortgagee may join
Tenant as a defendant in such action only for such purpose and not to terminate
the Lease or otherwise adversely affect Tenant's rights under the Lease or this
Agreement in such action.
b. Recognition and Attornment. Upon Successor Landlord taking title
to the Property (i) Successor Landlord shall be bound to Tenant under all the
terms and conditions of the Lease (except as provided in this Agreement); (ii)
Tenant shall recognize and attorn to Successor Landlord as Tenant's direct
landlord under the Lease as affected by this Agreement; and (iii) the Lease
shall continue in full force and effect as a direct lease, in accordance with
its terms (except as provided in this Agreement), between Successor Landlord and
Tenant. Tenant hereby acknowledges notice that pursuant to the Mortgage and
assignment of rents, leases and profits, Landlord has granted to the Mortgagee
an absolute, present assignment of the Lease and Rents which provides that
Tenant continue making payments of Rents and other amounts owed by Tenant under
the Lease to the Landlord and to recognize the rights of Landlord under the
Lease until notified otherwise in writing by the Mortgagee. After receipt of
such notice from Mortgagee, the Tenant shall thereafter make all such payments
directly to the Mortgagee or as the Mortgagee may otherwise direct, without any
further inquiry on the part of the Tenant. Landlord consents to the foregoing
35
and waives any right, claim or demand which Landlord may have against Tenant by
reason of such payments to Mortgagee or as Mortgagee directs.
c. Further Documentation. The provisions of this Article 3 shall be
effective and self-operative without any need for Successor Landlord or Tenant
to execute any further documents. Tenant and Successor Landlord shall, however,
confirm the provisions of this Article 3 in writing upon request by either of
them within ten (10) days of such request.
4. Protection of Successor Landlord. Notwithstanding anything to the
contrary in the Lease or the Mortgage, Successor Landlord shall not be liable
for or bound by any of the following matters:
a. Claims Against Former Landlord. Any Offset Right that Tenant may
have against any Former Landlord relating to any event or occurrence before the
date of attornment, including any claim for damages of any kind whatsoever as
the result of any breach by Former Landlord that occurred before the date of
attornment. The foregoing shall not limit either (i) Tenant's right to exercise
against Successor Landlord any Offset Right otherwise available to Tenant
because of events occurring after the date of attornment or (ii) Successor
Landlord's obligation to correct any conditions that existed as of the date of
attornment and violate Successor Landlord's obligations as landlord under the
Lease.
b. Prepayments. Any payment of Rent that Tenant may have made to
Former Landlord more than thirty (30) days before the date such Rent was first
due and payable under the Lease with respect to any period after the date of
attornment other than, and only to the extent that, the Lease expressly required
such a prepayment.
c. Payment; Security Deposit; Work. Any obligation: (i) to pay
Tenant any sum(s) that any Former Landlord owed to Tenant unless such sums, if
any, shall have been actually delivered to Mortgagee by way of an assumption of
escrow accounts or otherwise; (ii) with respect to any security deposited with
Former Landlord, unless such security was actually delivered to Mortgagee; (iii)
to commence or complete any initial construction of improvements in the Leased
Premises or any expansion or rehabilitation of existing improvements thereon;
(iv) to reconstruct or repair improvements following a fire, casualty or
condemnation; or (v) arising from representations and warranties related to
Former Landlord.
d. Modification, Amendment or Waiver. Any modification or amendment
of the Lease, or any waiver of the terms of the Lease, made without Mortgagee's
written consent except for non-material modifications or amendments that do not
affect the economic terms of the Lease or Successor Landlord's income therefrom.
e. Surrender, Etc. Any consensual or negotiated surrender,
cancellation, or termination of the Lease, in whole or in part, agreed upon
between Landlord and Tenant, unless effected unilaterally by Tenant pursuant to
the express terms of the Lease.
5. Exculpation of Successor Landlord. Notwithstanding anything to the
contrary in this Agreement or the Lease, Successor Landlord's obligations and
liability under the Lease shall never extend beyond Successor Landlord's (or its
successors' or assigns') interest, if any, in the Property from time to time,
including without limitation, insurance and condemnation proceeds, security
deposits, escrows, Successor Landlord's interest in the Lease and other leases
of the Property, and the proceeds from any sale, lease or other disposition of
the Property (or any portion thereof) by Successor Landlord (collectively, the
36
"Successor Landlord's Interest"). Tenant shall look exclusively to Successor
Landlord's Interest (or that of its successors and assigns) for payment or
discharge of any obligations of Successor Landlord under the Lease as affected
by this Agreement. If Tenant obtains any money judgment against Successor
Landlord with respect to the Lease or the relationship between Successor
Landlord and Tenant, then Tenant shall look solely to Successor Landlord's
Interest (or that of its successors and assigns) to collect such judgment.
Tenant shall not collect or attempt to collect any such judgment out of any
other assets of Successor Landlord.
6. Mortgagee's Right to Cure. Notwithstanding anything to the contrary in
the Lease or this Agreement, before exercising any Offset Right or Termination
Right:
a. Notice to Mortgagee. Tenant shall provide Mortgagee with notice
of the breach or default by Landlord giving rise to same (the "Default Notice")
and, thereafter, the opportunity to cure such breach or default as provided for
below.
b. Mortgagee's Cure Period. After Mortgagee receives a Default
Notice, Mortgagee shall have a period of thirty (30) days in which to cure the
breach or default by Landlord. Mortgagee shall have no obligation to cure (and
shall have no liability or obligation for not curing) any breach or default by
Landlord, except to the extent that Mortgagee agrees or undertakes otherwise in
writing. In addition, as to any breach or default by Landlord the cure of which
requires possession and control of the Property, provided that Mortgagee
undertakes by written notice to Tenant to exercise reasonable efforts to cure or
cause to be cured by a receiver such breach or default within the period
permitted by this paragraph, Mortgagee's cure period shall continue for such
additional time (the "Extended Cure Period") as Mortgagee may reasonably require
to either: (i) obtain possession and control of the Property with due diligence
and thereafter cure the breach or default with reasonable diligence and
continuity; or (ii) obtain the appointment of a receiver and give such receiver
a reasonable period of time in which to cure the default.
7. Miscellaneous.
a. Notices. Any notice or request given or demand made under this
Agreement by one party to the other shall be in writing, and may be given or be
served by hand delivered personal service, or by depositing the same with a
reliable overnight courier service or by deposit in the United States mail,
postpaid, registered or certified mail, and addressed to the party to be
notified, with return receipt requested or by telefax transmission, with the
original machine- generated transmit confirmation report as evidence of
transmission. Notice deposited in the mail in the manner hereinabove described
shall be effective from and after the expiration of three (3) days after it is
so deposited; however, delivery by overnight courier service shall be deemed
effective on the next succeeding business day after it is so deposited and
notice by personal service or telefax transmission shall be deemed effective
when delivered to its addressee or within two (2) hours after its transmission
unless given after 3:00 p.m. on a business day, in which case it shall be deemed
effective at 9:00 a.m. on the next business day. For purposes of notice, the
addresses and telefax number of the parties shall, until changed as herein
provided, be as follows:
37
i. If to the Mortgagee, at:
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Mortgage Loan Department
Telecopy No.: (000) 000-0000
ii. If to the Tenant, at:
Inforte Corp.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to:
Xxxxx & Lardner, LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
b. Successors and Assigns. This Agreement shall bind and benefit
the parties, their successors and assigns, any Successor Landlord, and its
successors and assigns. If Mortgagee assigns the Mortgage, then upon delivery to
Tenant of written notice thereof accompanied by the assignee's written
assumption of all obligations under this Agreement, all liability of the
assignor shall terminate.
c. Entire Agreement. This Agreement constitutes the entire
agreement between Mortgagee and Tenant regarding the subordination of the Lease
to the Mortgage and the rights and obligations of Tenant and Mortgagee as to the
subject matter of this Agreement.
d. Interaction with Lease and with Mortgage. If this Agreement
conflicts with the Lease, then this Agreement shall govern as between the
parties and any Successor Landlord, including upon any attornment pursuant to
this Agreement. This Agreement supersedes, and constitutes full compliance with,
any provisions in the Lease that provide for subordination of the Lease to, or
for delivery of nondisturbance agreements by the holder of, the Mortgage.
e. Mortgagee's Rights and Obligations. Except as expressly provided
for in this Agreement, Mortgagee shall have no obligations to Tenant with
respect to the Lease. If an attornment occurs pursuant to this Agreement, then
all rights and obligations of Mortgagee under this Agreement shall terminate,
without thereby affecting in any way the rights and obligations of Successor
Landlord provided for in this Agreement.
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f. Interpretation; Governing Law. The interpretation, validity and
enforcement of this Agreement shall be governed by and construed under the
internal laws of the State in which the Leased Premises are located, excluding
such State's principles of conflict of laws.
g. Amendments. This Agreement may be amended, discharged or
terminated, or any of its provisions waived, only by a written instrument
executed by the party to be charged.
h. Due Authorization. Tenant represents to Mortgagee that it has
full authority to enter into this Agreement, which has been duly authorized by
all necessary actions. Mortgagee represents to Tenant that it has full authority
to enter into this Agreement, which has been duly authorized by all necessary
actions.
i. Execution. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Mortgagee and Tenant have caused this
Agreement to be executed as of the date first above written.
MORTGAGEE:
---------
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., a Delaware corporation
By:_____________________________________
Name:
Title:
TENANT:
------
INFORTE CORP.,
a Delaware corporation
By:_____________________________________
Name:
Title:
40
LANDLORD'S CONSENT
------------------
Landlord consents and agrees to the foregoing Agreement, which was
entered into at Landlord's request. The foregoing Agreement shall not alter,
waive or diminish any of Landlord's obligations under the Mortgage or the Lease.
The above Agreement discharges any obligations of Mortgagee under the Mortgage
and related loan documents to enter into a nondisturbance agreement with Tenant.
Landlord is not a party to the above Agreement.
LANDLORD:
THE XXXXX BUILDING GROUP L.L.C.
By:_____________________________________
Name:
Title:
Dated: __________________, ____
41
MORTGAGEE'S ACKNOWLEDGMENT
--------------------------
STATE OF _____________ )
) ss.
COUNTY OF ___________ )
On the ___ day of _______ in the year _______ before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, 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.
------------------------------------
Signature of Notary Public
42
TENANT'S ACKNOWLEDGMENT
-----------------------
STATE OF _____________ )
) ss.
COUNTY OF ___________ )
On the ___ day of _______ in the year _______ before me, the
undersigned, a Notary Public in and for said state, personally appeared
________________________, 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.
------------------------------------
Signature of Notary Public
43
LIST OF EXHIBITS
----------------
If any exhibit is not attached hereto at the time of execution of this
Agreement, it may thereafter be attached by written agreement of the parties,
evidenced by initialing said exhibit.
Exhibit "A" - Legal Description of the Land
44
