Exhibit 10.18
OFFICE LEASE
between
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
NOT PERSONALLY, BUT AS TRUSTEE UNDER TRUST NO. 66078
(Landlord)
and
KANBAY INCORPORATED
---------------------------------
---------------------------------
(Tenant)
TABLE OF CONTENTS
OFFICE LEASE
Article Title Page
------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental 2
5 Security Deposit 5
6 Use of Premises 5
7 Utilities and Services 6
8 Maintenance and Repairs 7
9 Alterations, Additions and Improvements 8
10 Indemnification and Insurance 9
11 Damage or Destruction 10
12 Condemnation 11
13 Relocation 11
14 Assignment and Subletting 11
15 Default and Remedies 13
16 Attorneys' Fees; Costs of Suits 15
17 Subordination and Attornment 15
18 Quiet Enjoyment 16
19 Rules and Regulations 16
20 Estoppel Certificates 16
21 Entry by Landlord 17
22 Landlord's Lease Undertakings-Exculpation from 17
Personal Liability; Transfer of Landlord's Interest
23 Holdover Tenancy 18
24 Notices 18
25 Brokers 18
26 Electronic Services 18
27 Miscellaneous 20
EXHIBITS
Exhibit A Floor Plan
Exhibit B Work Letter Agreement
Exhibit C Rules and Regulations
Exhibit D Intentionally Omitted
Exhibit E Suite Acceptance Agreement
Exhibit F Letter of Credit
Exhibit G Expansion Space
Exhibit H HVAC Specifications
Net
OFFICE LEASE
THIS
OFFICE LEASE ("Lease"), dated March 27, 1998, is made and entered into
by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not
personally, but as Trustee under Trust No. 66078 ("Landlord") and KANBAY
INCORPORATED, an
Illinois corporation ("Tenant") upon the following terms and
conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 BUILDING. The term "Building" shall mean that certain office
building located at 0000 Xxxxxx Xxxxx in Rosemont,
Illinois, commonly known as
6400 XXXXXX together with any related land, improvements, parking facilities,
common areas, driveways, sidewalks and landscaping.
1.02 PREMISES. The term "Premises" shall mean Suite 100 in the
Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference. As used herein, "Premises" shall
not include any storage area in the Building, which shall be leased or rented
pursuant to separate agreement.
1.03 RENTABLE AREA OF THE PREMISES. The term "Rentable Area of the
Premises" shall mean 9,230 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises. Tenant acknowledges that the
Rentable Area of the Premises includes the usable area, without deduction for
columns or projections, multiplied by a load factor to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms and other public,
common and service areas of the Building.
1.04 LEASE TERM. The term "Lease Term" shall mean the period between
the Commencement Date and the Expiration Date (as such terms are hereinafter
defined), unless sooner terminated as otherwise provided in this Lease.
1.05 COMMENCEMENT DATE. Subject to adjustment as provided in Article
3, the term "Commencement Date" shall mean April 1, 1998.
1.06 EXPIRATION DATE. Subject to adjustment as provided in Article 3,
the term "Expiration Date" shall mean March 31, 2003.
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean the amounts set forth in Insert No. 1 of the Rider
attached hereto and made an integral part hereof (the "Rider").
1.08 TENANT'S PERCENTAGE SHARE. The term "Tenant's Percentage Share"
shall mean five and fifty-six hundredths percent (5.56%) with respect to
Operating Expenses (as such term is hereinafter defined). Landlord may
reasonably redetermine Tenant's Percentage Share from time to time to reflect
reconfigurations, additions or modifications to the Building.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean
Twenty-One Thousand Dollars ($21,000.00) and the letter of credit described in
Insert No. 2 of the Rider.
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use" shall
mean general office use and no other use.
1.11 BUSINESS HOURS. The term "Business Hours" shall mean the hours
of 8:00 A.M. to 6:00 P.M., Monday through Friday (federal and state holidays
excepted). Holidays are defined as the following: New Years Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day, and to the
extent of utilities or services provided by union members engaged at the
Building, such other holidays observed by such unions.
1.12 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address for
Notices" shall mean Xxxxxxx Properties Ltd., 0000 Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attn: Property Manager, with a copy to Xxxxxxx Properties Ltd.,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Property
Management.
1.13 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean ____________________________________________________________
________________________________________________________________________________
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1.14 BROKER. The term "Broker" shall mean Xxxxxxx Properties Ltd. and
Xxxxxx X. Xxxxxxx, Inc. _______________________________________________________.
1.15 ______________________________________________________________.
ARTICLE II - PREMISES
2.01 LEASE OF PREMISES. Landlord hereby leases the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord, upon all of the
terms, covenants and conditions contained in this Lease. On the Commencement
Date described herein, Landlord shall deliver the Premises to Tenant in
substantial conformance with the Work Letter Agreement attached hereto as
Exhibit B.
2.02 ACCEPTANCE OF PREMISES. Tenant acknowledges that Landlord has
not made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of either
for the conduct of Tenant's Permitted Use or for any other purpose. Prior to
Tenant's taking possession of the Premises, Landlord or its designee and Tenant
will walk the Premises for the purpose of reviewing the condition of the
Premises (and the condition of completion and workmanship of any tenant
improvements which Landlord is required to construct in the Premises pursuant to
this Lease); after such review, Tenant shall execute a Suite Acceptance Letter,
in the form of Exhibit E attached hereto, accepting the Premises. Except as is
expressly set forth in this Section 2.02 or the Work Letter Agreement attached
hereto (the "Work Letter"), if any, or as may be expressly set forth in Suite
Acceptance Letter, Tenant agrees to accept the Premises in its "as is" said
physical condition without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements (or to provide any allowance for same).
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease (including, without
limitation, the Work Letter and Article II), the Lease Term shall be for the
period described in Section 1.04 of this Lease, commencing on the Commencement
Date described in Section 1.05 of this Lease and ending on the Expiration Date
described in Section 1.06 of this Lease; provided, however, that, if for any
reason, Landlord is unable to deliver possession of the Premises on the date
which otherwise would be the Commencement Date, then Landlord shall not be
liable for any damage caused thereby, nor shall the Lease be void or voidable,
but, rather, the Lease Term shall commence upon, and the Commencement Date shall
be the date that possession of the Premises is so tendered to Tenant with the
initial Part of the Work substantially completed pursuant to Section 5 of the
Work Letter (except for Tenant-caused delays which shall not be deemed to delay
commencement of the Lease Term), and, unless Landlord elects otherwise, the
Expiration Date described in Section 1.06 of this Lease shall be extended by
an equal number of days. Landlord represents that, as of the date of this Lease,
the Premises is vacant.
ARTICLE IV - RENTAL
4.01 DEFINITIONS. As used herein,
(A) "Operating Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord in the
operation, ownership, maintenance, insurance, management, replacement and repair
of the Building including without limitation:
(i) The aggregate amount of all real estate taxes,
assessments (whether they be general or special), sewer rents and charges,
transit taxes, taxes based upon the receipt of rent and any other federal, state
or local governmental charge, general, special, ordinary or extraordinary (but
not including income or franchise taxes, capital stock, inheritance, estate,
gift, or any other taxes imposed upon or measured by Landlord's gross income or
profits, unless the same shall be imposed in lieu of real estate taxes or other
ad valorem taxes), which Landlord shall pay or become obligated to pay in
connection with the Building, or any part thereof ("Taxes"). Taxes shall also
include all fees and costs, including attorneys' fees, appraisals and
consultants' fees, incurred by Landlord in seeking to obtain a reassessment,
reduction of, or a limit on the increase in, any Taxes, regardless of whether
any reduction or limitation is obtained. Taxes shall be appropriately reduced
(or refunded to Tenant, as applicable) with respect to any refunds received by
Landlord relating to Taxes paid by Tenant. Taxes for any calendar year shall be
Taxes which are due for payment or paid in such year, rather than Taxes which
are assessed or become a lien during such year. Taxes shall include any tax,
assessment, levy, imposition or charge imposed upon Landlord and measured by or
based in whole or in part upon the Building or the rents or other income from
the Building, to the extent that such items would be payable if the Building was
the only property of Landlord subject to same and the income received by
Landlord from the Building was the only income of Landlord. Taxes shall also
include any personal property taxes imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and appurtenances of Landlord used in
connection with the Building.
(ii) Premiums for property, casualty, liability, rent
interruption or other types of insurance carried by Landlord.
(iii) Salaries, wages and other amounts paid or payable
for personnel including the Building manager, superintendent, operation and
maintenance staff, and other employees of Landlord involved in the maintenance
and operation of the Building including contributions and premiums towards
fringe benefits,
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unemployment, disability and worker's compensation insurance, pension plan
contributions and similar premiums and contributions and the total charges of
any independent contractors or property managers engaged in the operation,
repair, care, maintenance and cleaning of any portion of the Building,
reasonably adjusted to the extent such persons work at other properties in
addition to the Building
(iv) Cleaning expenses, including without limitation
janitorial services, window cleaning, and garbage and refuse removal.
(v) Landscaping expenses, including without limitation
irrigating, trimming, mowing, fertilizing, seeding, and replacing plants.
(vi) Heating, ventilating, air conditioning and
steam/utilities expenses, including fuel, gas, electricity, water, sewer,
telephone, and other services.
(vii) Subject to the provisions of Section 4.01(A)(xiii)
below, the cost of maintaining, operating, repairing and replacing components of
equipment or machinery, including without limitation heating, refrigeration,
ventilation, electrical, plumbing, mechanical, elevator, escalator, sprinklers,
fire/life safety, security and energy management systems, including service
contracts, maintenance contracts, supplies and parts.
(viii) Other items of repair or maintenance of elements of
the Building.
(ix) The costs of policing, security and supervision of
the Building.
(x) Fair market rental and other costs with respect to
the management office for the Building.
(xi) The cost of the rental of any machinery or equipment
and the cost of supplies used in the maintenance and operation of the Building.
(xii) Audit fees and the cost of accounting services
incurred in the preparation of statements referred to in this Lease and
financial statements, and in the computation of the rents and charges payable by
tenants of the Building.
(xiii) Capital expenditures (a) made primarily to reduce
Operating Expenses, or to comply with any laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of (i) their
useful lives, or (ii) the period during which the reasonably estimated savings
in Operating Expenses equals the expenditures.
(xiv) Legal fees and expenses, excluding fees for disputes
with tenants, negotiating leases and financing the Building.
(xv) Payments under any easement, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of
costs in any planned development.
(xvi) A fee for the administration and management of the
Building as reasonably determined by Landlord from time to time (not to exceed
5% of gross revenues of the Building during the first five years of the Lease
Term).
Operating Expenses shall not include costs of alteration of the premises of
tenants of the Building, depreciation charges, interest and principal payments
on mortgages, ground rental payments, real estate brokerage and leasing
commissions, expenses incurred in enforcing obligations of tenants of the
Building, salaries and other compensation of executive officers of the managing
agent of the Building senior to the Building manager, costs of any special
service provided to any one tenant of the Building but not to tenants of the
Building generally, and costs of marketing or advertising the Building. See
Insert No. 3 of the Rider.
(B) If the Building does not have ninety-five percent (95%)
occupancy during an entire calendar year, then the variable cost component of
"Operating Expenses" shall be equitably adjusted so that the total amount of
Operating Expenses equals the total amount which would have been paid or
incurred by Landlord had the Building been ninety-five percent (95%) occupied
for the entire calendar year. In no event shall Landlord be entitled to receive
from Tenant and any other tenants in the Building an aggregate amount in excess
of actual Operating Expenses as a result of the foregoing provision. Landlord
can adjust taxes to the extent that Landlord can reasonably demonstrate that the
Taxes fluctuated based upon occupancy.
4.02 BASE RENT. During the Lease Term, Tenant shall pay to Landlord
as rental for the Premises the Base Rent described in Section 1.07 above,
subject to the following annual adjustments (herein called the "Rent
Adjustments"):
(A)
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(B) During each calendar year, the Base Rent payable by Tenant
to Landlord, shall be increased by Tenant's Percentage Share of Operating
Expenses paid or incurred by Landlord during such year (the "Operating
Expense Adjustment").
4.03 ADJUSTMENT PROCEDURE; ESTIMATES. The Operating Expense
Adjustment specified in Section 4.02(B) shall be determined and paid as follows:
(A) During each calendar year, Landlord shall give Tenant
written notice of its reasonable estimate of any increased amounts payable under
Section 4.02(B) for that calendar year. On or before the first day of each
calendar month during the calendar year, Tenant shall pay to Landlord
one-twelfth (1/12th) of such estimated amounts; provided, however, that, not
more often that quarterly, Landlord may, by written notice to Tenant, revise its
estimate for such year, and subsequent payments by Tenant for such year shall be
based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of
each calendar year or as soon thereafter as is practicable, Landlord shall
deliver to Tenant a statement of that year's Operating Expenses, and the actual
Operating Expense Adjustment to be made pursuant to Section 4.02(B) for such
calendar year, as determined by Landlord (the "Landlord's Statement") and such
Landlord's Statement shall be binding upon Tenant, except as provided in Section
4.04 below. If the amount of the actual Operating Expense Adjustment is more
that the estimated payments for such calendar year made by Tenant, Tenant shall
pay the deficiency to Landlord within 30 days after receipt of Landlord's
Statement. If the amount of the actual Operating Expense Adjustment is less than
the estimated payments for such calendar year made by Tenant, any excess shall
be credited against Rent (as hereinafter defined) next payable by Tenant under
this Lease or, if the Lease Term has expired, any excess shall be paid to
Tenant. No delay in providing the statement described in this subparagraph (B)
shall act as a waiver of Landlord's right to payment under Section 4.02(H)
above.
(C) If this Lease shall terminate on a day other than the end
of a calendar year, the amount of the Operating Expense Adjustment to be paid
pursuant to Section 4.02(B) that is applicable to the calendar year in which
such termination occurs shall be prorated on the basis of the number of days
from January 1 of the calendar year to the termination date bears to 365. The
termination of this Lease shall not affect the obligations of Landlord and
Tenant pursuant to Section 4.03(B) to be performed after such termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided that Tenant is not then
in default beyond any applicable cure period of its obligations to pay Base
Rent, additional rent described in Section 4.02(B), or any other payments
required to be made by it under this Lease and provided further that Tenant
complies with the provisions of this Section 4.04, Tenant shall have the
right, once each calendar year, to reasonably review supporting data for any
portion of a Landlord's Statement (provided, however, Tenant may not have an
audit right to all documentation relating to Building operations as this
would far exceed the relevant information necessary to properly document a
pass-through billing statement, but real estate tax statements, and
information on utilities, repairs, maintenance and insurance and other
expenses included in Operating Expenses will be available), in accordance
with the following procedure:
(A) Tenant shall, within 30 business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying Tenant's desire to audit Landlord's Statement, and Tenant shall
simultaneously pay to Landlord all amounts due from Tenant to Landlord as
specified in the Landlord's Statement. Except as expressly set forth in
subsection (C) below, in no event shall Tenant be entitled to withhold, deduct,
or offset any monetary obligation of Tenant to Landlord under the Lease
(including, without limitation, Tenant's obligation to make all payments of Base
Rent and all payments of Tenant's Operating Expense Adjustment) pending the
completion of and regardless of the results of any review of records under this
Section 4.04. The right of Tenant under this Section 4.04 may only be exercised
once for any Landlord's Statement, and if Tenant fails to meet any of the above
conditions as a prerequisite to the exercise of such right, the right of Tenant
under this Section 4.04 for a particular Landlord's Statement shall be deemed
waived.
(B) Tenant acknowledges that Landlord maintains its records for
the Building at Landlord's manager's corporate offices presently located at the
address set forth in Section 1.12 and Tenant agrees that any review of records
under this Section 4.04 shall be at the sole expense of Tenant and shall be
conducted by an independent firm of certified public accountants. Tenant
acknowledges and agrees that any records reviewed under this Section 4.04
constitute confidential information of Landlord, which shall not be disclosed to
anyone other than the accountants performing the review and the principals of
Tenant who receive the results of the review. The disclosure of such information
to any other person, whether or not caused by the conduct of Tenant, shall
constitute a material breach of this Lease.
(C) Any errors disclosed by the review shall be promptly
corrected by Landlord, provided, however, that if Landlord disagrees with any
such claimed errors, Landlord shall have the right to cause another review to be
made by an independent firm of certified public accountants selected by Landlord
but reasonably acceptable to Tenant). In the event that the results of the
review of records by such independent firm reveal that Tenant has overpaid
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obligations for a preceding period, the amount of such overpayment shall be
credited against Tenant's subsequent installment obligations to pay the
estimated Operating Expense Adjustment. In the event that such results show that
Tenant has underpaid its obligations for a preceding period, the amount of such
underpayment shall be paid by Tenant to Landlord with the next succeeding
installment obligation of estimated Operating Expense Adjustment. The fees and
charges of such independent review shall be paid by Tenant unless such review
reveals that Landlord had overcharged Operating Expense Adjustment for the
calendar year under review by more than 5%.
4.05 PAYMENT. The Base Rent described in Section 1.07, as adjusted
in accordance with Section 4.02, shall be payable in advance on the first day of
each calendar month. If the Commencement Date is other than the first day of a
calendar month, the prepaid Base Rent for such partial month shall be prorated
in the proportion that the number of days this Lease is in effect during such
partial month bears to the total number of days in the calendar month. All Rent,
and all other amounts payable to Landlord by Tenant pursuant to the provisions
of this Lease, shall, except as otherwise provided herein, be paid to Landlord,
without notice, demand, abatement, deduction or offset, in lawful money of the
United States at Landlord's office in the Building or to such other person or at
such other place as Landlord may designate from time to time by written notice
given to Tenant. No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent due hereunder shall be deemed to be other than a payment
on account; nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed to effect or evidence an accord and
satisfaction; and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or at law or in equity provided.
4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late payment
of Base Rent or any other amounts payable by Tenant to Landlord hereunder (all
of which shall constitute additional rental to the same extent as Base Rent)
will cause Landlord to incur administrative costs and other damages, the exact
amount of which would be impracticable or extremely difficult to ascertain.
Landlord and Tenant agree that if Landlord does not receive any such payment on
or before five (5) days after the date the payment is due, Tenant shall pay to
Landlord, as additional rent, interest on the delinquent amounts at the lesser
of the maximum rate permitted by law if any or twelve percent (12%) per annum
from the date due to the date paid.
4.07 ADDITIONAL RENT. For purposes of this Lease, all amounts payable
by Tenant to Landlord pursuant to this Lease, whether or not denominated as
such, shall constitute Base Rent. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent".
4.08 RENT TAXES. Notwithstanding anything in Sections 4.01(A)(i) or
4.02(A) to the contrary, Tenant shall pay any rent, sales, service, transfer or
value added tax, or any other applicable tax on the Rent or services herein or
otherwise respecting this Lease (and such taxes shall not be included in
Operating Expenses).
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
convenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall immediately upon written demand deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount hereinabove stated. Landlord shall not be required to keep the Security
Deposit separate from its general accounts and Tenant shall not be entitled to
interest on the Security Deposit. Within thirty (30) days after the expiration
of the Lease Term and the vacation of the Premises by Tenant, the Security
Deposit, or such part as has not been applied to cure the default, shall be
returned to Tenant. See Insert No. 4 of the Rider.
ARTICLE VI - USE OF PREMISES
6.01 TENANTS PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including, without limitation, any
certificate of occupancy and any law, ordinance, regulation, covenant, condition
or restriction affecting the Building or the Premises which in the future may
become applicable to the Premises (collectively "Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises
to be used, in any manner which: (a) violates any Applicable Law; (b) causes or
is reasonably likely to cause damage to the Building or the Premises; (c)
violates a requirement or condition of any fire and extended insurance policy
covering the Building and/or the
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Premises, or increases the cost of such policy; (d) constitutes or is reasonably
likely to constitute a nuisance, annoyance or inconvenience to other tenants or
occupants of the Building or its equipment, facilities or systems; (e)
interferes with, or is reasonably likely to interfere with, the transmission or
reception of microwave, television, radio, telephone or other communication
signals by antennae or other facilities located in the Building; or (f) violates
the Rules and Regulations described in Article XIX. See Insert No. 5 of the
Rider.
6.03 HAZARDOUS MATERIALS.
(A) No Hazardous Materials, as defined herein, shall be
Handled, as also defined herein, upon, about, above or beneath the Premises or
any portion of the Building by or on behalf of Tenant, its subtenants or its
assignees, or their respective contractors, clients, officers, directors,
employees, agents, or invitees. Any such Hazardous Materials so Handled shall be
known as Tenant's Hazardous Materials. Notwithstanding the foregoing, normal
quantities of Tenant's Hazardous Materials customarily used in the conduct of
general administrative and executive office activities (e.g., copier fluids and
cleaning supplies) may be Handled at the Premises without Landlord's prior
written consent. Tenant's Hazardous Materials shall be Handled at all times in
compliance with the manufacturer's instructions therefor and all applicable
Environmental Laws, as defined herein.
(B) Notwithstanding the obligation of Tenant to indemnify
Landlord pursuant to this Lease, Tenant shall, at its sole cost and expense,
promptly take all actions required by any Regulatory Authority, as defined
herein, or necessary for Landlord to make full economic use of the Premises or
any portion of the Building, which requirements or necessity arises from the
Handling of Tenant's Hazardous Materials upon, about, above or beneath the
Premises or any portion of the Building. Such actions shall include, but not be
limited to, the investigation of the environmental condition of the Premises or
any portion of the Building, the preparation of any feasibility studies or
reports and the performance of any cleanup, remedial, removal or restoration
work. Tenant shall take all actions necessary to restore the Premises or any
portion of the Building to the condition existing prior to the introduction of
Tenant's Hazardous Materials, notwithstanding any less stringent standards or
remediation allowable under applicable Environmental Laws. Tenant shall
nevertheless obtain Landlord's written approval prior to undertaking any actions
required by this Section, which approval shall not be unreasonably withheld so
long as such actions would not potentially have a material adverse long-term or
short-term effect on the Premises or any portion of the Building.
(C) Tenant agrees to execute affidavits, representations, and
the like from time to time at Landlord's request stating Tenant's best knowledge
and belief regarding the presence of Hazardous Materials on the Premises.
(D) "Environmental-Laws" means and includes all now and
hereafter existing statutes, laws, ordinances, codes, regulations, rules,
rulings, orders, decrees, directives, policies and requirements by any
Regulatory Authority regulating, relating to, or imposing liability or standards
of conduct concerning public health and safety or the environment.
(E) "Hazardous Materials" means: (a) any material or substance:
(i) which is defined or becomes defined as a "hazardous substance," "hazardous
waste," "infectious waste," "chemical mixture or substance," or "air pollutant"
under Environmental Laws; (ii) containing petroleum, crude oil or any fraction
thereof; (iii) containing polychlorinated biphenyls (PCB's); (iv) containing
asbestos; (v) which is radioactive; (vi) which is infectious; or (b) any other
material or substance displaying toxic, reactive, ignitable or corrosive
characteristics, as all such terms are used in their broadest sense, and are
defined, or become defined by Environmental Laws; or (c) materials which cause a
nuisance upon or waste to the Premises or any portion of the Building.
(F) "Handle," "handle," "Handled," "handled," "Handling," or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement, presence,
migration, emission, abatement, removal, transportation, or any other activity
of any type in connection with or involving Hazardous Materials.
(G) "Regulatory Authority" shall mean any federal, state or
local governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
7.01 BUILDING SERVICES. Landlord agrees to furnish or cause to be
furnished to the Premises the following utilities and services, subject to
the conditions and standards set forth herein:
(A) Non-attended automatic elevator service (if the Building
has such equipment serving the Premises), in common with Landlord and other
tenants and occupants and their agents and invitees. At least one elevator shall
be in service at all times and the freight elevator shall be available to Tenant
on prior notice, subject to Landlord's scheduling requirements.
(B) During Business Hours, air conditioning, heating and
ventilation meeting the specifications set forth on Exhibit H. Landlord may make
available to Tenant heating, ventilation or air conditioning in excess of that
which Landlord shall be required to provide hereunder upon such conditions as
shall be determined by Landlord from time to time. Landlord's fee for
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any such additional heating, ventilation or air conditioning provided to Tenant,
to be set by Landlord from time to time (such fee is currently $40 per hour,
subject to change from time to time); will be separate from and in addition to
the Operating Expenses Adjustment provide in Article IV.
(C) Water for drinking and rest room purposes.
(D) Janitorial and cleaning services as specified on Exhibit I
(subject to reasonable change, from time to time), provided that the Premises
are used exclusively for office purposes and are kept reasonably in order by
Tenant. If the Premises are not used exclusively as offices, Landlord, at
Landlord's sole discretion, may require that the Premises be kept clean and in
order by Tenant, at Tenant's expense, to the satisfaction of Landlord and by
persons approved by Landlord; and, in all events, Tenant shall pay to Landlord
the cost of removal of Tenants refuse and rubbish, to the extent that the same
exceeds the refuse and rubbish attendant to normal office usage.
(E) Electricity shall not be furnished by Landlord but shall be
furnished by the approved electric utility company serving the area. Landlord
shall permit Tenant to receive such service direct from such utility company at
Tenant's cost and shall permit Landlord's wire and conduits, to the extent
available, suitable and safely capable, to be used for such purposes. Tenant
shall make all necessary arrangements with the utility company for paying for
electric current furnished by it to Tenant, and Tenant shall pay for all charges
for electric current consumed on the Premises during Tenant's occupancy thereof.
The Leased Premises are already separately metered. The electricity used during
the performance of janitor service, the making of alterations or repairs in the
Premises, and for the operation of the Building's air conditioning system at
times other than as provided in paragraph (B) hereof, or the operation of any
special air conditioning systems which may be required for data processing
equipment or for other special equipment or machinery installed by Tenant, shall
by paid for by Tenant, as additional Rent. Any such additional Rent shall be
payable by Tenant within five (5) days after Tenant receives an invoice therefor
from Landlord. Tenant shall make no alterations or additions to the electric
equipment or appliances without the prior written consent of Landlord in each
instance unreasonably withheld, conditioned or delayed. Tenant also agrees to
install in the Premises only Landlord's approved brands and models of lamps,
bulbs, ballasts and starters. Tenant covenants and agrees that at all times its
use of electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installed thereon.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Section 7.01 shall be payable upon demand by Landlord and shall constitute
additional rent.
7.02 INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption xxxxx or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
that safety and security devices, services and programs provided by Landlord, if
any, while intended to deter crime and ensure safety, may not in given instances
prevent theft or other criminal acts, or ensure safety of persons or property.
The risk that any safety or security device, service or program may not be
effective, or may malfunction, or be circumvented by a criminal, is assumed by
Tenant with respect to Tenant's property and interests, and Tenant shall obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts and other losses, as further described in this Lease. Tenant agrees to
cooperate in any reasonable safety or security program developed by Landlord or
required by Law. See Insert No. 6 of the Rider.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 LANDLORD'S OBLIGATIONS. Except as provided in Sections 8.02 and
8.03 below, Landlord shall maintain the Building, including floor and ceiling,
stairs, exterior walls and windows, the roof and common mechanical systems, in
good order and repair throughout the Lease Term; provided, however, that
Landlord shall not be liable for any failure to make any repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time after
written notice of the need for such repairs or maintenance is given to Landlord
by Tenant. Except as provided in Article XI, there shall be no abatement of
Rent, nor shall there be any liability of Landlord, by reason of any injury or
inconvenience to, or interference with, Tenant's business or operations arising
from the making of, or failure to make, any maintenance or repairs in or to any
portion of the Building. Landlord shall use reasonable efforts to minimize
interference with Tenant's business operations while performing such maintenance
or repairs (provided Landlord may perform such work during normal business
hours).
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at
its sole cost and expense, maintain the Premises in good order and repair
(including, without limitation, the carpet, wall-covering, doors, plumbing and
other fixtures, equipment, alterations and improvements, whether installed by
Landlord or Tenant). Further, Tenant shall be responsible for, and upon demand
by Landlord shall promptly reimburse Landlord for, any damage to any portion of
the Building or the Premises caused by (a) Tenant's activities in the Building
or the Premises; (b) the performance or existence of any alterations, additions
or improvements made by Tenant in or to the Premises; (c) the installation, use,
operation or movement of Tenant's property in or about the Building or the
Premises; or (d) any act or omission by Tenant or its officers, partners,
employees, agents, contractors or invitees.
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8.03 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon reasonable prior oral or telephonic
notice to Tenant at the Premises, other than in the case of any emergency in
which case no notice shall be required, to enter upon the Premises to make any
repairs to the Premises or the Building reasonably required or deemed reasonably
necessary by Landlord and to erect such equipment, including scaffolding, as is
reasonably necessary to effect such repairs. Landlord shall use reasonable
efforts to minimize interference with Tenant's business operations while
performing such maintenance or repairs (provided Landlord may perform such work
during normal business hours).
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or permit
to be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld
conditioned or delayed. Landlord may impose as a condition to making any
Alterations such requirements as Landlord in its reasonable discretion deems
necessary or desirable including without limitation: Tenant's submission to
Landlord, for Landlord's prior written approval, of all plans and specifications
relating to the Alterations; Landlord's prior written approval of the time or
times when the Alterations are to be performed; Landlord's prior written
approval of the contractors and subcontractors performing work in connection
with the Alterations; employment of union contractors and subcontractors who
shall not cause labor disharmony; Tenant's receipt of all necessary permits and
approvals from all governmental authorities having jurisdiction over the
Premises prior to the construction of the Alterations; Tenant's delivery to
Landlord of such bonds and insurance as Landlord shall reasonably require; and
Tenant's payment to Landlord of all costs and expenses incurred by Landlord
because of Tenant's Alterations, including but not limited to costs incurred in
reviewing the plans and specifications for, and the progress of, the
Alterations. Tenant is required to provide Landlord written notice of whether
the Alterations include the Handling of any Hazardous Materials and whether
these materials are of a customary and typical nature for industry practices.
Upon completion of the Alterations, Tenant shall provide Landlord with copies of
as-built plans. Neither the approval by Landlord of plans and specifications
relating to any Alterations nor Landlord's supervision or monitoring of any
Alterations shall constitute any warranty by Landlord to Tenant of the adequacy
of the design for Tenant's intended use or the proper performance of the
Alterations.
9.02 PERFORMANCE OF ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building. All
costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand. No asbestos-containing
materials shall be used or incorporated in the Alterations. No lead-containing
surfacing material, solder, or other construction materials or fixtures where
the presence of lead might create a condition of exposure not in compliance with
Environmental Laws shall be incorporated in the Alterations.
9.03 LIENS. Tenant shall pay when due all costs for work performed
and materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials furnished
to or obligations incurred by or for Tenant and Tenant shall protect, indemnify,
hold harmless and defend Landlord, the Premises and the Building of and from any
and all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less than seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy or otherwise discharge all liens, stop notices
or other claims or encumbrances within 20 days after Landlord notifies
Tenant in writing that any such lien, stop notice, claim or encumbrance has been
filed. If Tenant fails to pay and remove such lien, claim or encumbrance within
such 20 days, Landlord, at its election, may pay and satisfy the same
and in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 LEASE TERMINATION. Except as provided in this Section 9.04, upon
expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as existed on the date Tenant first
occupied the Premises, (whether pursuant to this Lease or an earlier lease),
subject to reasonable wear and tear and damage by casualty or condemnation. All
Alterations shall become a part of the Premises and shall become the property of
Landlord upon the expiration or earlier termination of this Lease, unless
Landlord shall, by written notice given to Tenant, require Tenant to remove some
or all of Tenant's Alterations, in which event Tenant shall promptly remove the
designated Alterations and shall promptly repair any resulting damage, all at
Tenant's sole expense. All business and trade fixtures, machinery and equipment,
furniture, movable partitions and items of personal property owned by Tenant or
installed by Tenant at its expense in the Premises shall be and remain the
property of Tenant; upon the expiration or earlier termination of this Lease,
Tenant shall, at its sole expense, remove all such items and repair any damage
to the Premises or the Building caused by such removal. If Tenant fails to
remove any such items or repair such damage promptly after the expiration or
earlier termination of the Lease, Landlord may, but need not, do so with no
liability to Tenant, and Tenant shall pay Landlord the cost thereof upon demand.
Notwithstanding the foregoing to the contrary, in the event that Landlord gives
its consent, pursuant to the provisions of Section 9.01 of this Lease, to
8
allow Tenant to make an Alteration in the Premises, Landlord agrees, upon
Tenant's written request, to notify Tenant in writing at the time of the giving
of such consent whether Landlord will require Tenant, at Tenant's cost, to
remove such Alteration at the end of the Lease Term.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and
defend Landlord and any Mortgagee, as defined herein, and each of their
respective partners, directors, officers, agents and employees, successors and
assigns, (except to the extent of the losses described below are caused by the
negligence or willful misconduct of Landlord, its agents and employees),
from and against:
(i) any and all loss, cost, damage, liability or expense
as incurred (including but not limited to reasonable attorneys'
fees and legal costs) arising out of or related to any claim,
suit or judgment brought by or in favor of any person or persons
for damage, loss or expense due to, but not limited to, bodily
injury, including death, or property damage sustained by such
person or persons which arises out of, is occasioned by or is in
any way attributable to the use or occupancy of the Premises or
any portion of the Building by Tenant or the acts or omission of
Tenant or its agents, employees, contractors, clients, invitees
or subtenants except to the extent caused by the negligence or
willful misconduct of Landlord or its agents or employees. Such
loss or damage shall include, but not be limited to, any injury
or damage to, or death of, Landlord's employees or agents or
damage to the Premises or any portion of the Building.
(ii) any and all environmental damages which arise from:
(i) the Handling of any Tenant's Hazardous Materials, as defined
in Section 6.03 or (ii) the breach of any of the provisions of
this Lease. For the purpose of this Lease, "environmental
damages" shall mean (a) all claims, judgments, damages,
penalties, fines, costs, liabilities, and losses (including
without limitation, diminution in the value of the Premises or
any portion of the Building, damages for the loss of or
restriction on use of rentable or usable space or of any amenity
of the Premises or any portion of the Building, and from any
adverse impact of Landlord's marketing of space); (b) all
reasonable sums paid for settlement of claims, attorneys' fees,
consultants' fees and experts' fees; and (c) all costs incurred
by Landlord in connection with investigation or remediation
relating to the Handling of Tenant's Hazardous Materials,
whether or not required by Environmental Laws, necessary for
Landlord to make full economic use of the Premises or any
portion of the Building, or otherwise required under this Lease.
To the extent that Landlord is held strictly liable by a court
or other governmental agency of competent jurisdiction under any
Environmental Laws, Tenant's obligation to Landlord and the
other indemnities under the foregoing indemnification shall
likewise be without regard to fault on Tenant's part with
respect to the violation of any Environmental Law which results
in liability to the indemnitee. Tenant's obligations and
liabilities pursuant to this Section 10.01 shall survive the
expiration or earlier termination of this Lease.
(B) Landlord agrees to protect, indemnify, hold harmless and
defend Tenant from and against any and all loss, cost, damage, liability or
expense, including reasonable attorneys' fees, with respect to any claim of
damage or injury to persons or property at the Premises, caused by the
negligence or willful misconduct of Landlord or its authorized agents or
employees.
(C) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit, reduce or
abrogate any insurance coverage provided by any insurers to either Tenant or
Landlord.
(D) Notwithstanding anything to the contrary contained in this
Lease, nothing herein shall be construed to infer or imply that Tenant is a
partner, joint venturer, agent, employee, or otherwise acting by or at the
direction of Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting of pipes, explosion, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all Alterations made
by or for Tenant in the Premises; and (b) Tenant's trade fixtures, equipment and
other personal property from time to time situated in the Premises. The proceeds
of such insurance shall be used for the repair or replacement of the property so
insured, except that if not so applied or if this Lease is terminated following
a casualty, the proceeds applicable to the leasehold improvements shall be paid
to Landlord and the proceeds applicable to Tenant's personal property shall be
paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure
and maintain business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all perils
insured against in Section 10.02(A).
9
(C) Landlord shall, at all times during the Lease Term, procure
and maintain "all-risk" property insurance in the amount not less than ninety
percent (90%) of the insurable replacement cost covering the Building in which
the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, commercial general liability insurance
applying to the use and occupancy of the Premises and the business operated by
Tenant. Such insurance shall have a minimum combined single limit of liability
of at least Two Million Dollars ($2,000,000) per occurrence and a general
aggregate limit of at least Two Million Dollars ($2,000,000). All such policies
shall be written to apply to all bodily injury, property damage, personal injury
losses and shall be endorsed to include Landlord and its agents, beneficiaries,
partners, employees, and any deed of trust holder or mortgagee of Landlord or
any ground lessor as additional insureds. Such liability insurance shall be
written as primary policies, not excess or contributing with or secondary to any
other insurance as may be available to the additional insureds.
(B) Prior to the sale, storage, use or giving away of alcoholic
beverages on or from the Premises by Tenant or another person, Tenant, at its
own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the State of
Illinois or other governmental authority having jurisdiction of the Premises, by
reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of One Million ($1,000,000) per occurrence and shall apply
to bodily injury, fatal or nonfatal; injury to means of support; and injury to
property of any person. Such policy or policies of insurance shall name Landlord
and its agents, beneficiaries, partners, employees and any mortgagee of Landlord
or any ground lessor of Landlord as additional insureds.
(C) Landlord shall, at all times during the Lease Term, procure
and maintain commercial general liability insurance for the Building in which
the Premises are located. Such insurance shall have minimum combined single
limit of liability of at least Two Million Dollars ($2,000,000) per occurrence,
and a general aggregate limit of at least Two Million Dollars ($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of
Illinois, and Employer's Liability
insurance with a limit not less than One Million Dollars ($1,000,000) Bodily
Injury Each Accident; One Million Dollars ($1,000,000) Bodily Injury By Disease
- Each Person; and One Million Dollars ($1,000,000) Bodily Injury to Disease -
Policy Limit.
10.05 POLICY REQUIREMENTS. All insurance required to be maintained by
Tenant shall be issued by insurance companies authorized to do insurance
business in the State of
Illinois and rated not less than A-VIII in Best's
Insurance Guide. A certificate of insurance (or, at Landlord's option, copies of
the applicable policies) evidencing the insurance required under this Article X
shall be delivered to Landlord not less than thirty (30) days prior to the
Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and Landlord as
required by this Lease.
10.06 WAIVER OF SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss covered
thereby. Any policy of insurance to be provided by Tenant or Landlord pursuant
to this Article X shall contain a clause denying the applicable insurer any
right of subrogation against the other party.
10.07 FAILURE TO INSURE. If Tenant fails to maintain any insurance
which Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below,
this Lease shall automatically terminate if the Building is totally destroyed.
11.02 PARTIAL DESTRUCTION OF PREMISES. If the Premises are damaged
by any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its
pre-existing condition within 180 days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of
such damage, except as provided in Section 11.03, promptly and with due
diligence repair any damage to the Premises (exclusive of any Alterations to
the Premises
10
made by Tenant, which shall be promptly repaired by Tenant at its sole expense)
and, until such repairs are completed, the Rent shall be abated from the date of
damage or destruction in the same proportion that the rentable area of the
portion of the Premises which is unusable by Tenant in the conduct of its
business bears to the total rentable area of the Premises. If such repairs
cannot, in Landlord's opinion, be made within said 180 day period, then Landlord
may, at its option, exercisable by written notice given to Tenant within thirty
(30) days after the date of the damage or destruction, elect to make the repairs
within a reasonable time after the damage or destruction, in which event this
Lease shall remain in full force and effect but the Rent shall be abated as
provided in the preceding sentence; if Landlord does not so elect to make the
repairs, then either Landlord or Tenant shall have the right, by written notice
given to the other within sixty (60) days after the date of the damage or
destruction, to terminate this Lease as of the date of the damage or
destruction. See Insert No. 7 of the Rider.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything
to the contrary contained in this Article XI, Landlord shall have no obligation
to repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Termination
Date, exclusive of option periods. Further, Tenant's Rent shall not be abated if
either (i) the damage or destruction is repaired within five (5) business days
after Landlord receives written notice from Tenant of the casualty, or (ii)
Tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in part, responsible for
the damage or destruction.
11.04 WAIVER. The provisions contained in this Lease shall supersede
any contrary laws (whether statutory, common law or otherwise) now or hereafter
in effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
12.01 TAKING. If the entire Premises or so much of the Premises as to
render the balance unusable by Tenant for Tenant's Permitted Use shall be taken
by condemnation, sale in lieu of condemnation or in any other manner for any
public or quasi-public purpose (collectively "Condemnation"), and if Landlord,
at its option, is unable or unwilling to provide substitute premises the
Building containing at least as much rentable area as described in Section
1.02 above and pay all reasonable relocation costs incurred by Tenant, then this
Lease shall terminate on the date that title or possession to the Premises is
taken by the condemning authority, whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for
such taking shall belong to Landlord. Tenant shall have no claim against
Landlord or the award for the value of any unexpired term of this Lease or
otherwise. Tenant shall be entitled to independently pursue a separate award in
a separate proceeding for Tenant's relocation costs directly associated with the
taking, provided such separate award does not diminish Landlord's award.
12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
[Intentionally Deleted] ARTICLE XIII-RELOCATION
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 RESTRICTION. Without the prior written consent of Landlord
(which consent, with respect to an assignment or subletting, shall not be
unreasonably withheld as provided in Section 14.04), Tenant shall not, either
voluntarily or by operation of law, assign, encumber, or otherwise transfer this
Lease or any interest herein, or sublet the Premises or any part thereof, or
permit the Premises to be occupied by anyone other than Tenant or Tenant's
employees (any such assignment, encumbrance, subletting, occupation or transfer
is hereinafter referred to as a "Transfer"). For purposes of this Lease, the
term "Transfer" shall also include (a) if Tenant is a partnership, the
withdrawal or change, voluntary, involuntary or by operation of law, of a
majority of the partners, or a transfer of a majority of partnership interests,
within a twelve month period, or the dissolution of the partnership, (b) if
Tenant is a closely held corporation (i.e. whose stock is not publicly held and
not traded through an exchange or over the counter) or a limited liability
company, the dissolution, merger, consolidation, division, liquidation or other
reorganization of Tenant, or within a twelve month period: (i) the sale or other
transfer of more than an aggregate of 50% of the voting securities of Tenant
(other than to immediate family members by reason of gift or death) or (ii) the
sale, mortgage, hypothecation or pledge of more than an aggregate of 50% of
Tenant's net assets, and (c) any change by Tenant in the form of its legal
organization under applicable state law (such as, for example, a change from a
general partnership to a limited partnership or from a corporation to a limited
liability company). An assignment,
11
subletting or other action in violation of the foregoing shall be void and, at
Landlord's option, shall constitute a material breach of this Lease.
Notwithstanding anything contained in this Article XIV to the contrary, Tenant
shall have the right to assign the Lease or sublease the Premises, or any part
thereof, to an "Affiliate" without the prior written consent of Landlord, but
upon at least twenty (20) days' prior written notice to Landlord, provided that
said Affiliate is not in default under any other lease for space in a property
that is managed by Xxxxxxx Properties Ltd. or any of its affiliates. For
purposes of this provision, the term "Affiliate" shall mean (i) any corporation
or other entity controlling, controlled by, or under common control with
(directly or indirectly) Tenant, including, without limitation, any parent
corporation controlling Tenant or any subsidiary that Tenant controls, (ii) the
surviving entity following a merger or consolidation involving Tenant and (iii)
any entity that purchases substantially all of Tenant's assets with the
intention of continuing Tenant's business operations. The term "control" as used
herein, shall mean the power to direct or cause the direction of the management
and policies of the controlled entity through the ownership of more than fifty
percent (50%) of the voting securities in such controlled entity.
Notwithstanding anything contained in this Article XIV to the contrary, Tenant
expressly covenants and agrees not to enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied, or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or
any interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting. Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with respect to
the proposed assignee or subtenant as Landlord shall reasonably require; (iii)
the type of use proposed for the Premises; and (iv) all of the principal terms
of the proposed assignment or subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 LANDLORD'S RECAPTURE RIGHTS. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld; but, in addition to
any other grounds for denial, Landlord's consent shall be deemed reasonably
withheld if, in Landlord's good faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to perform its obligations under
this Lease or any proposed sublease: (ii) the business and operations of the
proposed assignee or subtenant are not of comparable quality to the business and
operations being conducted by other tenants in the Building; (iii) the proposed
assignee or subtenant intends to use any part of the Premises for a purpose not
permitted under this Lease; (iv) either the proposed assignee or subtenant, or
any person which directly or indirectly controls, is controlled by, or is under
common control with the proposed assignee or subtenant occupies space in the
Building, or is negotiating with Landlord to lease space in the Building; (v)
the proposed assignee or subtenant is disreputable; or (vi) the use of the
Premises or the Building by the proposed assignee or subtenant would, in
Landlord's reasonable judgment, impact the Building in a negative manner
including but not limited to significantly increasing the pedestrian traffic in
and out of the Building or requiring any alterations to the Building to comply
with applicable laws; (vii) the subject space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes;
(viii) the transferee is a government (or agency or instrumentality thereof) or
(ix) Tenant has failed to cure a default at the time Tenant requests consent tot
the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment or
subletting, one-half (1/2) of the amount by which all sums or other economic
consideration received by Tenant in connection with such assignment or
subletting, whether denominated as rental or costs and brokers' commissions
actually paid and incurred by Tenant in connection with such Transfer, which
amount shall be amortized over the term of the Transfer), exceeds, in the
aggregate, the total sum which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to less than all of the
Premises under a sublease) shall be paid to Landlord promptly after receipt as
additional Rent under the Lease without affecting or reducing any other
obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease or all or
any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's costs
related thereto, including Landlord's reasonable attorneys' fees and a maximum
fee to Landlord of Five Hundred Dollars ($500.00).
14.07 CONTINUING LIABILITY OF TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the
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performance of all other obligations of Tenant contained in this Lease to the
same extent as if the Transfer had not occurred; provided, however, that any act
or omission of any transferee, other than Landlord, that violates the terms of
this Lease shall be deemed a violation of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any Transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect rent
from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in- fact, to direct any transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due to cure such
failure the first two times such failure occurs in any 12 month period).
(B) The abandonment of the Premises by Tenant or the vacation
of the Premises by Tenant for fourteen (14) consecutive days (with or without
the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or any
sublease of all or part of the Premises, except as expressly permitted under
Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other than those
described in Sections 15.01(A), 15.01(B) or 15.01 (C) above, if such failure
continues for 30 days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of the default is such that it cannot be
cured within the 30 day period, no default shall exist if Tenant
commences the curing of the default within the 30 day period and
thereafter diligently prosecutes the same to completion. The 30 day
notice described herein shall be in lieu of, and not in addition to, any notice
required under law now or hereafter in effect requiring that notice of default
be given prior to the commencement of an unlawful detainer or other legal
proceeding.
(E) The making by Tenant or its Guarantor of any general
assignment for the benefit of creditors, the filing by or against Tenant or its
Guarantor of a petition under any federal or state bankruptcy or insolvency laws
(unless, in the case of a petition filed against Tenant or its Guarantor the
same is dismissed within 60 days after filing); the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
at the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within 60 days; or the
attachment, execution or other seizure of substantially all of Tenant's assets
located at the Premises or Tenant's interest in this Lease or the Premises, if
such seizure is not discharged within 60 days.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
into this Lease or in connection with any Transfer under Section 14.01.
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the event
of any default by Tenant as provided in Section 15.01 above, Landlord shall have
the right without notice or demand to Tenant (Tenant hereby irrevocably waiving
all notices and demands, statutory or otherwise, including without limitation,
any notice otherwise required in connection with any forcible entry and detainer
action), to terminate this Lease or to terminate Tenant's right to possession of
the Premises without terminating this Lease, and in either event Landlord shall
be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom; and
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(E) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in subparagraphs (A) and (B) above, "worth at the time of award"
shall be computed by allowing interest on such amounts at the then highest
lawful rate of interest, but in no event to exceed one percent (1%) per annum
plus the rate established by the Federal Reserve Bank of Chicago on advances
made to member banks under Sections of the Federal Reserve Act ("discount rate")
prevailing at the time of the award. As used in paragraph (C) above, "worth at
the time of award" shall be computed by discounting such amount by (i) the
discount rate of the Federal Reserve Bank of Chicago prevailing at the time of
award plus (ii) one percent (1%).
15.03 MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession of the Premises, Landlord shall have no obligation
to mitigate Landlord's damages except to the extent required by applicable law.
If Landlord has not terminated this Lease or Tenant's right to possession of the
Premises, Landlord shall have no obligation to mitigate under any circumstances
and may permit the Premises to remain vacant or abandoned. If Landlord is
required to mitigate damages as provided herein: (i) Landlord shall be required
only to use reasonable efforts to mitigate, which shall not exceed such efforts
as Landlord generally uses to lease other space in the Building, (ii) Landlord
will not be deemed to have failed to mitigate if Landlord or its affiliates
lease any other portions of the Building or other projects owned by Landlord or
its affiliates in the same geographic area, before reletting all or any portion
of the Premises, and (iii) any failure to mitigate as described herein with
respect to any period of time shall only reduce the Rent and other amounts to
which Landlord is entitled hereunder by the reasonable rental value of the
Premises during such period. In recognition that the value of the Building
depends on the rental rates and terms of leases therein, Landlord's rejection of
a prospective replacement tenant based on an offer of rentals below Landlord's
published rates for new leases of comparable space at the Building at the time
in question, or at Landlord's option, below the rates provided in this Lease, or
containing terms less favorable than those contained herein, shall not give rise
to a claim by Tenant that Landlord failed to mitigate Landlord's damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's default and
abandonment and recover Rent as it becomes due. In the event Landlord re-lets
the Premises, to the fullest extent permitted by law, the proceeds of any
reletting shall be applied first to pay to Landlord all costs and expenses of
such reletting (including without limitation, costs and expenses of retaking or
repossessing the Premises, removing persons and property therefrom, securing new
tenants, including expenses for redecoration, alterations and other costs in
connection with preparing the Premises for the new tenant, and if Landlord shall
maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment, shall be
payable to Landlord as additional rent on demand and Landlord shall have the
same rights and remedies in the event of nonpayment as in the case of default by
Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this Lease, heretofore or hereafter made by Tenant for any office space in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord, at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease or Tenant's right to possession of the Premises for
personal injury or property damages under the indemnification clause or clauses
contained in this Lease. No acceptance by Landlord of a lesser sum than the Rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or pursue any other
remedy in the Lease provided. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord may
resort under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In
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addition to the other remedies provided in the Lease, including the right to
terminate this Lease or to terminate Tenant's right of possession of the
Premises and reenter and repossess the Premises and remove all persons and
property from the Premises without terminating this Lease as provided in Section
15.02, Landlord shall be entitled to a restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe
any of its obligations under this Lease shall constitute a default by Landlord
under this Lease only if such failure shall continue for a period of thirty (30)
days (or the additional time, if any, that is reasonably necessary to promptly
and diligently cure the failure) after Landlord receives written notice from
Tenant specifying the default. The notice shall give in reasonable detail the
nature and extent of the failure and shall identify the Lease provision(s)
containing the obligation(s). If Landlord shall default in the performance of
any of its obligations under this Lease (after notice and opportunity to cure as
provided herein), Tenant may pursue any remedies available to it under the law
and this Lease, except that, in no event, shall Landlord be liable for punitive
damages, lost profits, business interruption, speculative, consequential or
other such damages. In recognition that Landlord must receive timely payments of
Rent and operate the Building, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off, or xxxxx Rent.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
16.01 ATTORNEYS FEES. If either Landlord or Tenant shall commence any
action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent, resolving any actual
default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 23.01 and 25.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 INDEMNIFICATION. Should Landlord or Tenant be made a party to
any litigation instituted by the other party against a third party, or by a
third party against Tenant. Tenant or Landlord, respectively, shall
indemnify, hold harmless and defend Landlord or Tenant, respectively, from
any and all loss, cost, liability, damage or expense incurred by Landlord or
Tenant, respectively, including attorneys' fees, in connection with the
litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder,
are and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building: (iii) all past and future advances made under any such mortgages
or deeds of trust; and (iv) all renewals, modifications, replacements and
extensions of any such ground leases, master leases, mortgages and deeds of
trust; provided, however, that any lessor under any such ground lease or master
lease or any mortgagee or beneficiary under any such mortgage or deed of trust
(any such lessor, mortgagee or beneficiary is hereinafter referred to as a
"Mortgagee") shall have the right to elect, by written notice given to Tenant,
to have this Lease made superior in whole or in part to any such ground lease,
master lease, mortgage or deed of trust (or subject and subordinate to such
ground lease, master lease, mortgage or deed of trust but superior to any junior
mortgage or junior deed of trust). Upon demand, Tenant shall execute,
acknowledge and deliver any instruments reasonably requested by Landlord or any
such Mortgagee to effect the purposes of this Section 17.01. Such instruments
may contain, among other things, provisions to the effect that such Mortgagee
(hereafter, for the purposes of this Section 17.01, a "Successor Landlord")
shall (i) not be liable for any act or omission of Landlord or its predecessors,
if any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (ii) not be subject to any offsets or defenses which
Tenant might have been able to assert against Landlord or its predecessors, if
any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (iii) not be liable for the return of any security
deposit under the Lease unless the same shall have actually been deposited with
such Successor Landlord; (iv) be entitled to receive notice of any Landlord
default under this Lease plus a reasonable opportunity to cure such default
prior to Tenant having any right or ability to terminate this Lease as a result
of such Landlord default; (v) not be bound by any rent or additional rent which
Tenant might have paid for more than the current month to Landlord; (vi) not be
bound by any amendment or modification of the Lease or any cancellation or
surrender of the same made without Successor Landlord's prior written consent;
(vii) not be bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such Successor Landlord succeeded to
Landlord's interest and (viii) not be bound by any obligation under the Lease to
perform any work or to make any improvements to the demised Premises. Any
obligations of any Successor Landlord under its respective lease shall be
non-recourse as to any assets of such Successor Landlord other than its interest
in the Premises and improvements.
17.02 ATTORNMENT. If the interests of Landlord under the Lease shall
be transferred to any superior Mortgagee or other purchaser or person taking
title to the Building by reason of the termination of any superior lease or the
foreclosure of any superior mortgage or deed of trust, Tenant shall be bound to
such Successor Landlord under all of the terms, convenants and conditions of the
Lease for the balance of the term thereof remaining and any
15
extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Successor
Landlord were the landlord under the Lease, and Tenant shall attorn to and
recognize as Tenant's landlord under this Lease such Successor Landlord, as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments upon Successor Landlord's succeeding to the
interest of Landlord under the Lease. Tenant shall, upon demand, execute any
documents reasonably requested by any such person to evidence the attornment
described in this Section 17.02. Concurrently, upon written request from Tenant,
and provided Tenant is not in default under this Lease, Landlord agrees to use
diligent, commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the Successor Landlord. Such Non-Disturbance Agreement may be embodied in
the Mortgagee's customary form of Subordination and Non-Disturbance Agreement.
If, after exerting diligent, commercially reasonable efforts, Landlord is unable
to obtain a Non-Disturbance Agreement from any such Mortgagee, Landlord shall
have no further obligation to Tenant with respect thereto.
17.03 MORTGAGEE PROTECTION. Tenant agrees to give any Mortgagee, by
registered or certified mail, a copy of any notice of default served upon
Landlord by Tenant, provided that prior to such notice Tenant has been notified
in writing (by way of service on Tenant of a copy of Assignment of Rents and
Leases, or otherwise) of the address of such Mortgagee (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such twenty (20) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the Notified Party shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the Notified Party has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the Notified Party to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free of
claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - RULES AND REGULATIONS
19.01 The Rules and Regulations attached hereto as Exhibit C are
hereby incorporated by reference herein and made a part hereof. Tenant shall
abide by, and faithfully observe and comply with the Rules and Regulations and,
after receiving written notice, any reasonable and non-discriminatory
amendments, modifications and/or additions thereto as may hereafter be adopted
and published by written notice to tenants by Landlord for the safety, care,
security, good order and/or cleanliness of the Premises and/or the Building.
Landlord shall not be liable to Tenant for any violation of such rules and
regulations by any other tenant or occupant of the Building. Landlord shall not
unreasonably discriminate against Tenant in the enforcement of the Rules and
Regulations.
ARTICLE XX - ESTOPPEL CERTIFICATES
20.01 Tenant agrees at any time and from time to time upon not less
than ten (10) business days' prior written notice from Landlord to execute,
acknowledge and deliver to Landlord a statement in writing addressed and
certifying to Landlord, to any current or prospective Mortgagee or any assignee
thereof, to any prospective purchaser of the land, improvements or both
comprising the Building, and to any other party designated by Landlord, that
this Lease is unmodified and in full force and effect (of if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications); that Tenant has accepted possession of the Premises, which
are acceptable in all respects, and that any improvements required by the terms
of this Lease to be made by Landlord have been completed to the satisfaction of
Tenant; that Tenant is in full occupancy of the Premises; that no rent has been
paid more than thirty (30) days in advance; that the first month's Base Rent has
been paid; that Tenant is entitled to no free rent or other concessions except
as stated in this Lease; that Tenant has not been notified of any previous
assignment of Landlord's or any predecessor landlord's interest under this
Lease; the dates to which Base Rent, additional rental and other charges have
been paid; that Tenant, as of the date of such certificate, has no charge, lien
or claim of setoff under this Lease or otherwise against Base Rent, additional
rental or other charges due or to become due under this Lease; that to Tenant's
knowledge Landlord is not in default in performance of any covenant, agreement
or condition contained in this Lease; or any other matter relating to this Lease
or the Premises or, if so, specifying each such default. If there is a Guaranty
under this Lease, said Guarantor shall confirm the validity of the Guaranty by
joining in the execution of the Estoppel Certificate or other documents so
requested by Landlord or Mortgagee. In addition, in the event that such
certificate is being given to any Mortgagee, such statement may contain any
other provisions customarily required by such Mortgagee including, without
limitation, an agreement on the part of Tenant to furnish to such Mortgagee,
written notice of any Landlord default and a reasonable opportunity for such
Mortgagee to cure such default prior to Tenant being able to terminate this
Lease. Any such statement delivered pursuant to this Section may be relied upon
by Landlord or any Mortgagee, or prospective purchaser to whom it is addressed
and such statement, if required by its addressee, may so specifically state. If
Tenant does not execute, acknowledge and deliver to Landlord the statement as
and when required herein, Landlord is hereby granted an irrevocable
power-of-attorney, coupled with an interest, to execute such statement on
Tenant's behalf, which statement shall be binding on Tenant to the same extent
as if executed by Tenant.
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ARTICLE XXI - ENTRY BY LANDLORD
21.01 Upon at least 24 hours' prior oral notice to Tenant at the
Premises (excluding emergencies or when providing services, when no such notice
shall be required), Landlord may enter the Premises at all reasonable times to:
inspect the same; exhibit the same to prospective purchasers, Mortgagees or
tenants; determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, on or about the Premises
(excluding Tenant's vaults, safes and similar areas designated by Tenant in
writing in advance), and Landlord shall have the right to use any and all means
by which Landlord may deem proper to open such doors to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any such means,
or otherwise, shall not under any circumstances be deemed or construed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from any part of the Premises. Such entry by
Landlord shall not act as a termination of Tenant's duties under this Lease. If
Landlord shall be required to obtain entry by means other than a key provided by
Tenant, the cost of such entry shall by payable by Tenant to Landlord as
additional rent.
ARTICLE XXII
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
22.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by or
on the part of Landlord of any representation, warranty, covenant, undertaking
or agreement contained in any of the Lease Documents or otherwise arising out of
Tenant's use of the Premises or the Building (collectively, "Landlord's Lease
Undertakings") shall extend only to Landlord's interest in the real estate of
which the Premises demised under the Lease Documents are a part ("Landlord's
Real Estate") and not to any other assets of Landlord or its beneficiaries; and
(b) except to the extent of Landlord's interest in Landlord's Real Estate, no
personal liability or personal responsibility of any sort with respect to any of
Landlord's Lease Undertakings or any alleged breach thereof is assumed by, or
shall at any time be asserted or enforceable against, Landlord, Xxxxxxx Capital
Management Corporation or Xxxxxxx Properties Ltd., or against any of their
respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made
on the part of Landlord while in form purporting to be the representations,
warranties, covenants, undertakings and agreements of Landlord are nevertheless
each and every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in the Building,
the Land and the Premises to the terms of this lease and for no other purpose
whatsoever, and in case of default hereunder by Landlord (or default through,
under or by any of its beneficiaries, or agents or representatives of said
beneficiaries), the Tenant shall look solely to the interest of Landlord in the
Building and Land; that this lease is executed and delivered by Landlord not in
its own right, but solely in the exercise of the powers conferred upon it as
such Trustee; that neither the Landlord nor any of Landlord's beneficiaries
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained, and no
liability or duty shall rest upon Landlord to sequester the trust estate or the
rents, issues and profits arising therefrom, or the proceeds arising from any
sale or other disposition thereof; and that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be asserted or
enforceable against, said Landlord, American National Bank and Trust Company of
Chicago, a national banking association, individually or personally, but only as
Trustee under the provisions of a Trust Agreement dated December 5, 1985 and
known as its Trust No. 66078, or against any of the beneficiaries under said
Trust Agreement, or their respective agents, on account of this lease or on
account of any representation, warranty, covenant, undertaking or agreement of
Landlord in this lease contained, either express or implied, all such personal
liability, if any, being expressly waived and released by Tenant and by all
persons claiming by, through or under Tenant.
22.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or advance
rents held by Landlord are turned over to the grantee and said grantee expressly
assumes, subject to the limitations of this Section 22, all the terms, covenants
and conditions of this Lease to be performed on the part of Landlord, it being
intended hereby that the covenants and obligations contained in this Lease on
the part of Landlord shall, subject to all the provisions of this Section 22, be
binding on Landlord, its successors and assigns, only during their respective
periods of ownership.
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ARTICLE XXIII - HOLDOVER TENANCY
23.01 If Tenant holds possession of the Premises after the expiration
or termination of the Lease Term, by lapse of time or otherwise, Tenant shall
become a tenant at sufferance upon all of the terms contained herein, except as
to Lease Term and Rent. During the first 30 days of such holdover period, Tenant
shall pay to Landlord a monthly rental equivalent to one hundered fifty percent
(150%) of the Rent Payable by Tenant to Landlord with respect to the last month
of the Lease Term. With respect to the last month of the Lease Term the monthly
rent payable for such holdover period shall in no event be construed as a
penalty or as liquidated damages for such retention of possession. Without
limiting the foregoing, Tenant hereby agrees to indemnify, defend and hold
harmless Landlord, its beneficiary, and their respective agents, contractors and
employees, from and against any and all claims, liabilities, actions, losses,
damages (including without limitation, direct, indirect, incidental and
consequential) and expenses (including, without limitation, court costs and
reasonable attorneys' fees) asserted against or sustained by any such party and
arising from or by reason of such retention of possession, which obligations
shall survive the expiration or termination of the Lease Term.
ARTICLE XXIV - NOTICES
24.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
addressed to Landlord at the address for Landlord set forth in Section 1.12
above and to Tenant at the address for Tenant set forth in Section 1.13 above,
or, from and after the Commencement Date, to Tenant at the Premises whether or
not Tenant has departed from, abandoned or vacated the Premises, or addressed to
such other address or addresses as either Landlord or Tenant may from time to
time designate to the other in writing. Any notice shall be deemed to have been
served at the time the same was posted.
ARTICLE XXV - BROKERS
25.01 The parties recognize as the broker(s) who procured this Lease
the firm(s) specified in Section 1.14 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to leasing, subleasing or renting
space in the Building, Tenant shall be solely responsible for the payment of any
fee due said person or firm and Tenant shall protect, indemnify, hold harmless
and defend Landlord from any liability in respect thereto.
ARTICLE XXVI - ELECTRONIC SERVICES
26.01 TENANT'S LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer or other electronic service wires, cables and
related devices (collectively the "Lines") at the Building in or serving the
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions. Tenant shall
not, without the prior written consent of Landlord in each instance, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void.
26.02 DEFINITION OF ELECTRONIC SERVICES. As used herein "Electronic
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to receive
or transmit information by the use of electronics and which require the use of
wires, cables, antennas or similar devices in or on the Building. The services
of Electronic Services Providers are sometime referred to herein as "Electronic
Services."
26.03 NO RIGHT TO SPECIFIC SERVICES. Landlord shall have no obligation
(i) to install any Electronic Services equipment or facilities, (ii) to make
available to Tenant the services of any particular Electronic Services Provider,
(iii) to allow any particular Electronic Services Provider access to the
Building, (iv) to continue to grant access to an Electronic Services Provider
once such provider has been given access to the Building. Landlord may (but
shall not have the obligation to): (x) install new Lines at the property, (y)
create additional space for Lines at the property, and (z) adopt reasonable and
uniform rules and regulations with respect to Lines.
26.04 LIMITATION OF LANDLORD'S RESPONSIBILITY. Tenant acknowledges and
agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules and
regulations adopted by Landlord from time to time. Unless otherwise specifically
agreed to in writing, Landlord shall have no responsibility for the maintenance
of Tenant's Electronic Services equipment,
18
including Lines; nor for any Lines or other infrastructure to which Tenant's
Electronic Services equipment may be connected. Tenant agrees that, to the
extent any Electronic Services are interrupted, curtailed or discontinued,
Landlord shall have no obligation or liability with respect thereto and it shall
be the sole obligation of Tenant at its own expense to obtain substitute
service. Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability for damages arising from, and Landlord does not warrant that Tenant's
use of any Lines will be free from the following (collectively called "Line
Problems"): (x) any eavesdropping or wire-tapping by unauthorized parties, (y)
any failure of any Lines to satisfy Tenant's requirements, or (z) any shortages,
failures, variations, interruptions, disconnections, loss or damage caused by
the installation, maintenance, replacement, use or removal of Lines by or for
other tenants or occupants at the property. Under no circumstances shall any
Line Problems be deemed an actual or constructive eviction of Tenant, render
Landlord liable to Tenant for abatement of Rent, or relieve Tenant from
performance of Tenant's obligations under this Lease. Landlord in no event shall
be liable for damages by reason of loss of profits, business interruption or
other consequential damage arising from any Line Problems.
26.05 NECESSARY SERVICE INTERRUPTIONS. Landlord shall have the right,
upon reasonable prior notice to Tenant, to interrupt or turn off Electronic
Services facilities in the event of emergency or as necessary in connection with
maintenance, repairs or construction at the Building or installation of
Electronic Services equipment for other Tenants of the Building or on account of
violation by the Electronic Services Provider or owner of the Electronic
Services equipment of any obligation to Landlord or in the event that Tenant's
use of the Electronic Services infrastructure of the Building materially
interferes with the Electronic Services of other tenants of the Building.
26.06 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES. Subject to
Section 9.04, any and all Electronic Services equipment installed in the
Tenant's Premises or elsewhere in the Building by or on behalf of Tenant,
including Lines, or other facilities for Electronic Services reception or
transmittal, shall be removed prior to the expiration or earlier termination
of the Lease term, by Tenant at its sole cost or, if Tenant fails to do so,
by Landlord at Tenant's sole cost, with the cost thereof to be paid as
additional rent. Landlord shall have the right, however, upon written notice
to Tenant given no later than thirty (30) days prior to the expiration or
earlier termination of the Lease term (except that the notice period shall
extend to thirty (30) days beyond the date of termination of the Lease if it
is terminated by either party due to a default by the other), to require
Tenant to abandon and leave in place, without additional payment to Tenant or
credit against rent, any and all Electronic Services Lines and related
infrastructure, or selected components thereof, whether located in the
Tenant's premises or elsewhere in the Building.
26.07 NEW PROVIDER INSTALLATIONS. In the event that Tenant wishes at
any time to utilize the services of an Electronic Services Provider whose
equipment is not then servicing the Building, no such Electronic Services
Provider shall be permitted to install its Lines or other equipment within the
Building without first securing the prior written approval of the Landlord.
Landlord's approval shall not be deemed any kind of warranty or representation
by Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no current expense or risk or future expense whatsoever with respect to any
aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
Electronic Services Provider, the Electronic Services Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord reasonably determines to be necessary to protect
its financial interests and the interests of the Building relating to the
proposed activities of the Electronic Services Provider; (iii) the Electronic
Services Provider agrees to abide by such rules and regulations, Building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the Building,
the Tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Article IX of this Lease; (iv) Landlord
reasonably determines that, considering other potential uses for space in the
Building, there is sufficient space in the Building for the placement of all of
the provider's equipment, conduit, Lines and other materials; (v) the Electronic
Services Provider agrees to abide by Landlord's requirements, if any, that
provider use existing Building conduits and pipes or use Building contractors
(or other contractors approved by Landlord); (vi) Landlord receives from the
Electronic Services Provider such compensation as is reasonably determined by
Landlord to compensate it for space used in the Building for the storage and
maintenance of the Electronic Services Provider's equipment, for the fair market
value of a Electronic Services Provider's access to the Building, for the use of
common or core space within the Building and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the provider, the
form and content of which is reasonably satisfactory to Landlord."
26.08 LIMIT OF DEFAULT OR BREACH. Notwithstanding any provision of the
proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to have acted recklessly or maliciously with
respect to Tenant's request for approval, and in that event, Tenant shall still
have no right to terminate the Lease or claim an entitlement to rent abatement,
but may as Tenant's sole and exclusive recourse seek a judicial order of
specific performance compelling Landlord to grant its approval as to the
prospective provider in question. The provisions of this paragraph may be
enforced solely by Tenant and Landlord, are not for the benefit of any other
party, and specifically but without limitation, no telephone or other Electronic
Services Provider shall be deemed a third party beneficiary of this Lease.
19
26.09 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Tenant shall not
utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises, within the Building or attached to the
outside walls or roof of the Building, without Landlord's prior written consent.
Such consent may be conditioned in such a manner so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein, in a manner similar to the arrangements described in the immediately
preceding paragraphs.
26.10 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE. In the event
that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party and such interference
continues after notice thereof to Tenant, Tenant shall cease using such
equipment, Lines and facilities or satellite and antennae equipment until the
source of the interference is identified and eliminated and Tenant shall assume
all liability related to such interference. Tenant shall cooperate with Landlord
and other parties, to eliminate such interference promptly. In the event that
Tenant is unable to do so, Tenant will substitute alternative equipment which
remedies the situation. If such interference persists, Tenant shall, at
Landlord's sole discretion, remove such equipment.
ARTICLE XXVII - MISCELLANEOUS
27.01 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
27.02 AMENDMENTS. This Lease shall not be amended, changed or modified
in any way unless in writing executed by Landlord and Tenant. Landlord shall not
have waived or released any of its rights hereunder unless in writing and
executed by Landlord.
27.03 SUCCESSORS. Except as expressly provided herein, this Lease and
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
27.04 FORCE MAJEURE. Landlord shall incur no liability to Tenant with
respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to, strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, or by
fire, earthquake, civil commotion, or failure or disruption of utility services.
The amount of time for Landlord to perform any of Landlord's obligations shall
be extended by the amount of time Landlord is delayed in performing such
obligation by reason of any force majeure occurrence whether similar to or
different from the foregoing types of occurrences.
27.05 SURVIVAL OF OBLIGATIONS. Any obligations of Landlord or Tenant
accruing prior to the expiration of the Lease shall survive the expiration or
earlier termination of the Lease, and Landlord or Tenant shall promptly perform
all such obligations whether or not this Lease has expired or been terminated.
27.06 LIGHT AND AIR. No diminution or shutting off of any light, air
or view by any structure now or hereafter erected shall in any manner affect
this Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
27.07 GOVERNING LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of
Illinois.
27.08 SEVERABILITY. In the event any provision of this Lease is found
to be unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
27.09 CAPTIONS. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall have no effect on
the interpretation of this Lease.
27.10 INTERPRETATION. Tenant acknowledges that it has read and
reviewed this Lease and that it has had the opportunity to confer with counsel
in the negotiation of this Lease. Accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms and the
intent of the parties.
27.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
20
27.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
27.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
the performance of all obligations hereunder.
27.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat the abandonment by such
person or entities as an event of default and exercise with respect to such
persons the rights and remedies provided in Article XV without affecting the
right or obligations of the persons or entities comprising Tenant which have not
abandoned the property.
27.15 EXHIBITS. Exhibits A (Outline of Premises), B (Work Letter
Agreement), C (Rules and Regulations), D (Guaranty) and E (Suite Acceptance
Letter) are incorporated into this Lease by reference and made a part hereof.
27.16 OFFER TO LEASE. The submission of this Lease to Tenant or its
broker or other agent, does not constitute an offer to Tenant to lease the
Premises. This Lease shall have no force and effect until (a) it is executed and
delivered by Tenant to Landlord and (b) it is fully reviewed and executed by
Landlord; provided, however, that, upon execution of this Lease by Tenant and
delivery to Landlord, such execution and delivery by Tenant, shall, in
consideration of the time and expense incurred by Landlord in reviewing the
Lease and Tenant's credit, constitute an offer by Tenant to lease the Premises
upon the terms and conditions set forth herein (which offer to Lease shall be
irrevocable for twenty (20) business days following the date of delivery).
27.17 NO COUNTERCLAIM; CHOICE OF LAWS. It is mutually agreed that in
the event Landlord commences any summary proceeding for non-payment of Rent,
Tenant will not interpose any non-compulsory counterclaim of whatever nature or
description in any such proceeding. In addition, Tenant hereby submits to local
jurisdiction in the State of
Illinois and agrees that any action by Tenant
against Landlord shall be instituted in the State of
Illinois and that Landlord
shall have personal jurisdiction over Tenant for any action brought by Landlord
against Tenant in the State of
Illinois.
27.18 ELECTRICAL SERVICE TO THE PREMISES. Anything set forth in
Section 7.01 or elsewhere in this Lease to the contrary notwithstanding,
electricity to the Premises shall not be furnished by Landlord, but shall be
furnished by the approved electric utility company serving the Building.
Landlord shall permit Tenant to receive such service directly from such utility
company at Tenant's cost (except as otherwise provided herein) and shall permit
Landlord's wire and conduits, to the extent available, suitable and safely
capable, to be used for such purposes. If Landlord voluntarily elects to change
the electric provider serving the Building, Landlord shall bear any expenses
incurred in connection with such change.
27.19 RIGHTS RESERVED BY LANDLORD. Landlord reserves the following
rights exercisable without notice (except as otherwise expressly provided to the
contrary in this Lease) and without being deemed an eviction or disturbance of
Tenant's use or possession of the Premises or giving rise to any claim for
set-off or abatement of Rent; (i) to change the name or street address of the
Building; (ii) to install, affix and maintain all signs on the exterior and/or
interior of the Building; (iii) to designate and/or approve prior to
installation, all types of signs, window shades, blinds, drapes, awnings or
other similar items, and all internal lighting that may be visible from the
exterior of the Premises and, notwithstanding the provisions of Article IX, the
design, arrangement, style, color and general appearance of the portion of the
Premises visible from the exterior, and contents thereof, including, without
limitation, furniture, fixtures, signs, art work, wall coverings, carpet and
decorations, and all changes, additions and removals thereto, shall at all times
have the appearance of premises having the same type of exposure and used for
substantially the same purposes that are generally prevailing in comparable
office buildings in the area. Any violation of this provision shall be deemed a
material breach of this Lease; (iv) to change the arrangement of entrances,
doors, corridors, elevators and/or stairs in the Building, provided no such
change shall materially adversely affect access to the Premises; (v) to grant
any party the exclusive right to conduct any business or render any service in
the Building, provided such exclusive right shall not operate to prohibit Tenant
from using the Premises for the purposes permitted under this Lease; (vi) to
prohibit the placement of vending or dispensing machines of any kind in or about
the Premises other than for use by Tenant's employees; (vii) to prohibit the
placement of video or other electronic games in the Premises for use by other
than Tenant's employees; (viii) to have access for Landlord and other tenants of
the Building to any mail chutes and boxes located in or on the Premises
according to the rules of the United States Post Office and to discontinue any
mail chute business in the Building; (ix) to close the Building after normal
business hours, except that Tenant and its employees and invitees shall be
entitled to admission at all times under such rules and regulations as Landlord
prescribes for security purposes; (x) to install, operate and maintain security
systems which monitor, by close circuit television or otherwise, all persons
entering or leaving the Building; (xi) to install and maintain pipes, ducts,
conduits, wires and structural elements located in the Premises which serve
other parts or other tenants of the Building; and (xii) to retain at all times
master keys or pass keys to the Premises.
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Additional provisions are set forth in Insert No. 8 of the Rider.
IN WITNESS WHEREOF, the parties hereto have executed this lease as of the
date first above written.
LANDLORD: TENANT:
AMERICAN NATIONAL BANK AND TRUST KANBAY INCORPORATED, an
Illinois
COMPANY OF CHICAGO, not personally, but ---------------------------------
as Trustee aforesaid
corporation
-----------------------------------
By: /s/ Authorized Party By: /s/ Authorized Party
---------------------------- -------------------------------
Its: TRUST OFFICER Its: Chairman & CEO
--------------------------- -------------------------------
22
RIDER TO
OFFICE LEASE ("FORM LEASE")
DATED AS OF MARCH 27, 1998, BY AND BETWEEN
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
AS TRUSTEE UNDER TRUST NO.66078 ("LANDLORD"), AND
KANBAY INCORPORATED, AN ILLINOIS CORPORATION ("TENANT")
This Rider is attached to and is a part of the Form Lease. In the event of a
conflict between a provision of the Form Lease and a provision of this Rider,
the provision of this Rider shall govern and control. As used in this Rider and
in the Form Lease, the term "Lease" shall mean the Form Lease, as modified by
this Rider.
INSERT NO. 1. BASE RENT.
(a) The Base Rent for the Premises shall be as follows:
RENT OF ANNUAL
BASE RENT PER
LEASE RENTABLE SQUARE RATE OF ANNUAL
YEAR FOOT BASE RENT MONTHLY BASE RENT
-----------------------------------------------------------------------------------------
1 $ 12.50 $ 115,374.96 $ 9,614.58
2 $ 13.00 $ 119,990.04 $ 9,999.17
3 $ 13.50 $ 124,605.00 $ 10,383.75
4 $ 14.00 $ 129,219.96 $ 10,768.33
5 $ 14.50 $ 133,835.04 $ 11,152.92
(b) As used in this Lease, the term "Lease Year" shall mean the
1-year period commencing on the Commencement Date, and each 1-year period
thereafter commencing on the anniversary of the Commencement Date.
INSERT NO. 2 SECURITY DEPOSIT.
(a) At the time of signing this Lease, in addition to the cash
security deposit described in Section 1.09, Tenant shall deposit with Landlord
an unconditional, irrevocable letter of credit in Landlord's favor in the amount
of $50,000.00 (the "LOC"), which LOC shall be freely assignable by Landlord to
Landlord's successor, any successor owner of the Building or any mortgagee of
the Building, issued by a "Qualified Issuer" approved by Landlord, drawable in
Chicago, Illinois and in the form of the letter of credit attached hereto as
Exhibit "F". The LOC shall be retained by Landlord for the same purposes, and
with the same rights and benefits, as the cash security deposit (as described in
Section 5.01). If the Building is sold or otherwise transferred, Landlord shall
have the right to transfer the LOC to the purchaser or transferee, as the case
may be, by which transfer Landlord shall be released from all liability for the
return thereof, and Tenant shall look solely to the new owner for the return
thereof.
(b) Tenant shall deposit with Landlord not later than 30 days prior
to the expiration date of the original LOC deposited by Tenant hereunder (and
not later than 30 days prior to the expiration date of each replacement LOC
deposited by Tenant hereunder), (i) a replacement LOC in form, content and
amount identical to the original LOC and issued by a "Qualified Issuer" approved
by Landlord or (ii) cash in the amount of the LOC. If Tenant fails to timely
deposit any such replacement LOC or cash with Landlord (which failure is not
subject to any notice or cure period under this Lease), then Landlord may draw
the entire proceeds of the LOC.
(c) If no default has occurred by Tenant during the first three
Lease Years, Tenant's obligations to maintain the LOC shall terminate and
Landlord shall return the LOC to Tenant.
(d) For purposes of this INSERT NO.2, "Qualified Issuer" means any
commercial bank which, at the particular time its status as a Qualified Issuer
is relevant hereunder, has total assets of at least U.S. $ 100 million. If at
any time after issuance of the LOC (or any replacement LOC), the issuing bank
fails to be a Qualified Issuer or is not otherwise financially sound in
Landlord's sole judgment, the LOC or
replacement LOC, as the case may be, upon written notice from Landlord to
Tenant, shall be immediately reissued by a Qualified Issuer approved by
Landlord, which reissuance shall be in accordance with the provisions of this
Lease.
INSERT NO. 3 ADDITIONAL EXCLUSIONS FROM OPERATING EXPENSES.
Operating Expenses also shall not include the following:
(1) costs of capital improvements to the Building except as
provided in clause (xiii) of Section 4.01(A);
(2) the cost of electrical energy furnished directly to tenants
of the Property and paid for by such tenants directly to the provider of
such electrical energy;
(3) the cost of any items to the extent such cost is reimbursed
to Landlord by tenants of the Property (other than by virtue of the
pass-through of "Operating Expenses" to other tenants of the Building); and
(4) depreciation of the Building and its equipment and
amortization (except as provided in clause (xiii) of Section 4.01(A)).
Operating Expenses shall be net of rebates, credits and recoveries under
insurance maintained by Landlord on the Building.
INSERT NO. 4 SECURITY DEPOSIT - INTEREST ON CASH PORTION.
Landlord agrees to invest the cash portion of the Security Deposit in
certificates of deposit, treasury bills or other investments as determined by
Landlord; provided, however, that Landlord shall not be required to invest the
cash portion of the Security Deposit in an investment yielding the highest
possible rate of interest, and Landlord does not guarantee to Tenant any minimum
rate of interest on the investment of the cash portion of the Security Deposit.
All interest accruing on such investment shall be paid to Tenant annually during
the Term, provided that Tenant is not in Default under this Lease.
INSERT NO. 5 COMPLIANCE WITH LAWS.
Landlord agrees that it will cause the common areas of the Building
utilized by Tenant and its invitees to comply in all material respects with
applicable laws relating thereto (as reasonably interpreted by Landlord from
time to time) and to correct or cause to be corrected any violations of laws
relating to such common areas in respect to which Landlord is given written
notice by the applicable governmental authority or entity having jurisdiction
over the Building. Landlord may include the costs of such compliance in
Operating Expense as provided in Section 4.01(A).
INSERT NO. 6 INTERRUPTION OF SERVICES.
Notwithstanding anything to the contrary in this Lease, if: (a) any
services or utilities are interrupted or discontinued as a result of Landlord's
negligence, and Tenant is unable to and does not use, the Premises as a result
of such interruption or discontinuance, and (b) Tenant shall have given written
notice respecting such interruption or discontinuance to Landlord, and Landlord
shall have failed to cure such interruption or discontinuance within five
consecutive business days after receiving such notice, or such additional time
as may be required due to acts of God, force majeure, casualty damage, strikes,
shortages of labor or materials, or other causes beyond Landlord's reasonable
control, Base Rent and Rent Adjustments hereunder shall thereafter be abated
until such time as such services or utilities are restored or Tenant begins
using the Premises again, whichever shall first occur. Such abatement shall be
Tenant's sole recourse in the event of a discontinuance or interruption of
services or utilities required to be provided by Landlord hereunder.
Notwithstanding the foregoing, in recognition that Landlord must receive timely
payments of Rent in order to operate the Building, if Landlord disputes Tenant's
right to receive such abatement, Tenant shall have no right to xxxxx Rent unless
and until Tenant shall have first obtained a valid judgment by a court of
competent jurisdiction finding that the foregoing grounds for an abatement of
Rent have been present, and fixing the amount of rent abatement to which Tenant
is entitled.
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INSERT NO. 7 ADDITIONAL TENANT TERMINATION RIGHT.
Notwithstanding anything in this Article XI to the contrary, Landlord and
Tenant hereby agree that if Landlord estimates that the time required to
substantially complete any repair or restoration of damage will exceed 180 days,
then, in addition to the abatement of Rent described in this Article XI, as
Tenant's sole and absolute additional remedy, within ten (10) business days
after delivery of Landlord's notice with such estimate, Tenant shall have the
right, concurrently upon written notice to Landlord, to terminate the Lease
Term. Tenant understands and agrees that the termination of the Lease Term shall
not relieve Tenant of any obligations under the Lease that have accrued through
the termination date of the Lease Term. Notwithstanding the foregoing, Tenant
shall not have the right to terminate this Lease if Tenant, or any assignee or
subtenant of Tenant, or Tenant's officers, directors, employees, invitees,
agents or contractors caused, in whole or in part, such damage to the Building
or the Premises.
INSERT NO. 8 ADDITIONAL PROVISIONS.
28. RENEWAL OPTION.
28.01 RENEWAL OPTION. Tenant shall have an option (the "Renewal
Option") to renew the initial Lease Term with respect to all (but not less than
all) of the Premises demised under or pursuant to this Lease as of the
expiration date of the initial Lease Term for one additional term (the "Renewal
Term") of three years, commencing on the day immediately following the
Expiration Date of the initial Lease Term, under the following terms and
conditions and subject to credit approval by Landlord (which approval shall not
be unreasonably withheld by Landlord [after taking into account all economic
factors of this Lease]):
(1) Tenant gives Landlord written notice of Tenant's election to
exercise the Renewal Option no earlier than the date which is twelve months days
prior to the Expiration Date of the initial Lease Term and no later than the
date which is ten months prior to the Expiration Date of the initial Lease Term;
and
(2) this Lease is in full force and effect and Tenant is not in
breach or default under this Lease, either on the date Tenant exercises the
Renewal Option or at any time through and including the proposed commencement
date of the Renewal Term.
28.02 TERM. If Tenant timely and properly exercises the Renewal
Option:
(1) The Rent payable for the Renewal Term shall be based on the then
prevailing rent for similar space in this Building. For purposes of the
preceding sentence, "prevailing rental rate" shall mean the total rental then
being quoted by Landlord to third party tenants for reasonably comparable space
in the Building for leases approximately as long, and commencing at
approximately the same time, as the Renewal Term. In determining the prevailing
rental rate, Landlord shall take into account tenant concessions, such as rent
abatements, allowances and improvement costs. If Landlord is not then quoting
rental rates for comparable space, the rates used for purposes of this provision
shall be those rates Landlord would have used if Landlord had quoted such rates.
Landlord's good faith determination of the "prevailing rental rate" shall be
conclusive and binding as to Landlord and Tenant. Upon Tenant's written request
given not later than 12 months prior to the Expiration Date of the initial Lease
Term, Landlord shall notify Tenant of the prevailing rental rate not later than
11 months prior to the Expiration Date of the initial Lease Term. If Tenant
timely and properly exercises the Renewal Option but fails to request the
prevailing rental rate in advance, Landlord agrees to give Tenant written notice
setting forth the prevailing rental rate, which notice shall be given prior to
the commencement date of the Renewal Term.
(2) Tenant shall have no further options to renew the Lease Term
beyond the expiration date of the Renewal Term.
(3) Landlord shall not be obligated to perform any leasehold
improvement work in the Premises or give Tenant an allowance or other economic
concession for any such work or for any other purposes (unless such work,
allowance or concession was included in Landlord's notice setting forth the
prevailing rental rate).
(4) Except as otherwise provided herein, all of the terms and
provisions of this Lease shall remain the same and in full force and effect
during the Renewal Term.
28.03 AMENDMENT. If Tenant exercises the Renewal Option, Landlord and
Tenant shall execute and deliver an amendment to this Lease reflecting the lease
of the Premises by Landlord to Tenant for the
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Renewal Term on the terms provided above, which amendment shall be executed and
delivered prior to the commencement date of the Renewal Term.
28.04 TERMINATION. The Renewal Option shall automatically terminate
and become null and void and of no force or effect upon the earlier to occur of
(1) the expiration or termination of this Lease, (2) the termination of the
Tenant's right to possession of the Premises, (3) the assignment of this Lease
by Tenant (other than to an Affiliate in accordance with Section 14.01), in
whole or in part, (4) the sublease by Tenant of all or part of the Premises
(other than to an Affiliate in accordance with Section 14.01), (5) the recapture
by Landlord of any part of the Premises pursuant to Section 14.03, or (6) the
failure of Tenant to timely or properly exercise the Renewal Option.
29. RIGHT OF FIRST OFFER.
29.01 RIGHT OF FIRST OFFER. For purposes of this Lease, "Expansion
Space" shall mean the 1,081 rentable square feet located on the 1st floor of the
Building contiguous to the Premises, as more particularly shown on Exhibit "G"
attached hereto. Subject to credit approval by Landlord (which approval shall
not be unreasonably withheld by Landlord [after taking into account all economic
factors of this Lease]) and provided Tenant is not in default under this Lease
at the time the Expansion Space becomes available, or at any time through and
including execution of a lease amendment by Landlord and Tenant for the subject
space, Tenant shall have a right of first offer to lease the Expansion Space
(the "Right of First Offer"), such right commencing on the Commencement Date of
this Lease and expiring on the last day of the third Lease Year, subject to the
following conditions. Landlord shall provide Tenant with written notice of the
availability of all or a portion of the Expansion Space. Landlord shall provide
Tenant with Landlord's quotation of the Base Rent for the Expansion Space, which
shall be that monthly base rental rate per square foot which Landlord is willing
to quote to and accept from a third party for a lease with respect to the
Expansion Space, subject to any additional rent or rent escalation provisions
and factors which Landlord is willing to quote to and accept from such third
party, including but not limited to, such provisions and factors based on
increases in operating costs, taxes and the Consumer Price Index ("Landlord's
Expansion Space Rent"). In determining the Base Rent, Landlord shall take into
account tenant concessions, such as rent abatements, allowances and improvement
costs. Within five (5) business days of such notification, Tenant shall notify
Landlord in writing sent certified mail, return receipt requested, with postage
prepaid thereon that it elects to exercise its Right of First Offer for the
Expansion Space. If Tenant does not so notify Landlord, Tenant will be deemed to
have forever waived its Right of First Offer respecting all Expansion Space.
Rent for the Expansion Space shall be in the amount of Landlord's Expansion
Space Rent, for a term which is coterminous with the term of this Lease. The
rights of Tenant under this Article are personal and may not be assigned to or
exercised by any other party.
29.02 TERMS. If Tenant exercises any Right of First Offer, all of the
terms and provisions of this Lease shall be applicable to the Expansion Space
thereby included in the Premises, except that the annual rate of Base Rent for
the Expansion Space, as adjusted based on increases in operating costs, taxes
and the Consumer Price Index, if applicable, shall be equal to the amount of
Landlord's Expansion Space Rent as defined above.
29.03 AMENDMENT. If Tenant exercises the Right of First Offer,
Landlord and Tenant shall promptly execute and deliver an amendment to this
Lease reflecting the inclusion of the Expansion Space in the Premises on the
terms herein provided.
29.04 CONDITION. Tenant agrees to accept possession of the Expansion
Space in as "as is," "where is" physical condition and Tenant shall not be
entitled to any credit or allowance or other economic concession from Landlord
for the improvement thereof (unless such credit, allowance or concession was
included in Landlord's notice setting forth the Base Rent).
29.05 TERMINATION. The First Offer Right granted in this Lease shall
automatically terminate and become null and void upon the earlier to occur of
(1) the expiration or termination of this Lease, (2) the termination of Tenant's
right to possession of the Premises, (3) the assignment of this Lease by Tenant,
in whole or in part (other than to an Affiliate in accordance with Section
14.01), (4) the sublease by Tenant of all or any part of the Premises (other
than to an Affiliate in accordance with Section 14.01), (5) the recapture by
Landlord of any part of the Premises pursuant to Section 14.03, or (6) the
failure of Tenant to timely or properly exercise the First Offer Right.
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30. MOVING ALLOWANCE
30.01 Landlord agrees to pay Tenant $18,460.00 (such amount being
$2.00 per square foot of Rentable Area of the Premises) as an allowance for
moving its personal property into the Premises and other related expenses, such
as cabling, stationery and other printing and telephone installation. Landlord
shall pay such sum to Tenant within thirty (30) days after Tenant accepts
possession of and moves into the Premises provided this Lease is then in full
force and effect and Tenant is not then in breach or default under this Lease.
Tenant, at its sole cost and expense, shall pay all moving expenses relating to
Tenant's relocation to the Premises in excess of such allowance.
IN WITNESS WHEREOF, this Rider has been executed and delivered as of
the date first set forth above.
TENANT: LANDLORD:
------ --------
KANBAY INCORPORATED, an Illinois AMERICAN NATIONAL BANK AND TRUST
corporation COMPANY OF CHICAGO, not personally, but
solely as TRUSTEE UNDER TRUST NO. 66078
By: /s/ Authorized Party By: /s/ Authorized Party
-------------------------- ------------------------------
Its: President & CEO Its: TRUST OFFICER
-------------------------- ------------------------------
This instrument is executed by the undersigned Land Trustee, not personally but
solely as Trustee in the exercise of the power and authority conferred upon and
vested in it as such Trustee. It is expressly understood and agreed that all the
warranties, indemnities, representations, covenants, undertakings and agreements
herein made on the part of the Trustee are undertaken by it solely in its
capacity as Trustee and not personally. No personal liability or personal
responsibility is assumed by or shall at any time be asserted or enforceable
against the Trustee on account of any warranty, indemnity, representation,
covenant, undertaking or agreement of the Trustee in this instrument.
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EXHIBIT "A"
FLOOR PLAN OF PREMISES
[GRAPHIC]
EXHIBIT B
WORK LETTER AGREEMENT
[LANDLORD PERFORMS WORK]
[ALLOWANCE]
This Work Letter Agreement ("Work Letter") is executed simultaneously with
that certain
Office Lease (the "Lease") between KANBAY INCORPORATED, an Illinois
corporation, as "Tenant", and AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, not personally, but as Trustee under Trust No. 66078, as "Landlord",
relating to demised premises ("Premises") at the building commonly known as 0000
XXXXXX, Xxxxxxxx, Xxxxxxxx (the "Building"), which Premises are more fully
identified in the Lease. Capitalized terms used herein, unless otherwise defined
in this Work Letter, shall have the respective meanings ascribed to them in the
Lease.
For and in consideration of the agreement to lease the Premises and the
mutual convenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. TENANT'S INITIAL PLANS; THE WORK. Tenant desires Landlord to
perform certain leasehold improvement work in the Premises in substantial
accordance with the plan or plans (collectively, the "Initial Plan") to be
prepared by Xxxx Xxxxxx & Xxxxxxxxx. Such work, as shown in the Initial Plan
and as more fully detailed in the Working Drawings (as defined and described
in Paragraph 2 below), shall be hereinafter referred to as the "Work".
Promptly after Landlord's request, Tenant shall furnish to Landlord such
additional plans, drawings, specifications and finish details as Landlord may
reasonably request to enable Landlord's architects and engineers to prepare
mechanical, electrical and plumbing plans and to prepare the Working
Drawings, including a final telephone layout and special electrical
connection requirements, if any. All plans, drawings, specifications and
other details describing the Work which have been or are hereafter furnished
by or on behalf of Tenant shall be subject to Landlord's approval, which
Landlord agrees shall not be unreasonably withheld. Landlord shall not be
deemed to have acted unreasonably if it withholds its approval of any plans,
specifications, drawings or other details or of any Additional Work (as
defined in Paragraph 7 below) because, in Landlord's reasonable opinion, the
work, as described in any such item, or the Additional Work, as the case may
be: (a) is likely to adversely affect Building systems, the structure of the
Building or the safety of the Building and/or its occupants; (b) might impair
Landlord's ability to furnish services to Tenant or other tenants in the
Building; (c) would increase the cost of operating the Building; (d) would
violate any governmental laws, rules or ordinances (or interpretations
thereof); (e) contains or uses hazardous or toxic materials or substances;
(f) would adversely affect the appearance of the Building; (g) might
adversely affect another tenant's premises; (h) is prohibited by any ground
lease affecting the Building or any mortgage, trust deed or other instrument
encumbering the Building; or (i) is likely to be substantially delayed
because of unavailability or shortage of labor or materials necessary to
perform such work or the difficulties or unusual nature of such work. The
foregoing reasons, however, shall not be the only reasons for which Landlord
may withhold its approval, whether or not such other reasons are similar or
dissimilar to the foregoing. Neither the approval by Landlord of the Work or
Initial Plan or any other plans, drawings, specifications or other items
associated with the Work nor Landlord's performance, supervision or
monitoring of the Work shall constitute any warranty by Landlord to Tenant of
the adequacy of the design for Tenant's intended use of the Premises.
Landlord shall not charge a supervision fee in connection with the Work.
2. WORKING DRAWINGS. If necessary for the performance of the Work and
not included as part of the Initial Plan attached hereto, Landlord shall prepare
or cause to be prepared final working drawings and specifications for the Work
(the "Working Drawings") based on and consistent with the Initial Plan and the
other plans, drawings, specifications, finish details and other information
furnished by Tenant to Landlord and approved by Landlord pursuant to Paragraph 1
above. So long as the Working Drawings are consistent with the Initial Plan,
Tenant shall approve the Working Drawings within three (3) days after receipt of
same from Landlord by initialing and returning to Landlord each sheet of the
Working Drawings or by executing Landlord's approval form then in use, whichever
method of approval Landlord may designate.
3. PERFORMANCE OF THE WORK; ALLOWANCE. Except as hereinafter provided
to the contrary, Landlord shall cause the performance of the Work using
(except as may be stated or shown otherwise in the Working Drawings) building
standard materials, quantities and procedures then in use by Landlord
("Building Standards"). Landlord shall pay for a portion of the "Cost of
Work" (as defined below) in an amount not to exceed $166,140.00 (such amount
being $18.00 per rentable square foot of the Premises which is to be
improved, as described in the Working Drawings) (the "Allowance"), and Tenant
shall pay for the entire Cost of the Work in excess of the Allowance. See
Insert 3.1 on page 1A. Except as provided in Insert 3.2 on page 1A, Tenant
shall not be entitled to any credit, abatement or payment from Landlord in
the event that the amount of the Allowance specified above exceeds the Cost
of the Work. For purposes of this Agreement, the term "Cost of the Work"
shall mean and include any and all costs and expenses of the Work, including,
without limitation, the cost of the Initial Plan, Working Drawings and of all
labor (including overtime) and materials constituting the Work. Landlord
shall not charge a construction supervisory fee for the Work.
1
3.1 Tenant acknowledges that the Work shall be performed in two
installments (each a "Part" of the Work). The portion of the Allowance available
for the initial Part of the Work shall not exceed $73,840.00 (such amount being
$8.00 per rentable square foot of the Premises). The portion of the Allowance
available for the second Part of the Work shall not exceed $92,300.00 (such
amount being $10.00 per rentable square foot of the Premises) and shall not be
available prior to the 13th month of the Lease Term. No portion of such
Allowance shall be available if Tenant is then in breach or default under the
Lease (after the expiration of any applicable notice or cure periods).
Tenant recognizes and acknowledges that Tenant intends to retain possession
of the Premises and occupy and work in the Premises during the performance by
Landlord of the second Part of the Work. Tenant understands that such Work will
be performed during Tenant's normal business hours and that portion of such Work
may be disruptive to Tenant's normal conduct of business. Tenant agrees to
permit Landlord to perform such Work in the Premises without interference by
Tenant, its employees, guests and invitees, and Tenant agrees to cooperate with
all reasonable requests by Landlord in connection therewith. Notwithstanding any
other provision of the Lease or this work Letter to the contrary, Tenant waives
all claims against Landlord, its employees, agents and/or contractors, arising
out of the performance by Landlord of such Work while Tenant is in possession
and occupancy of the Premises, including without limitation any claims of
constructive eviction.
3.2 If, after completing all Parts of the Work, it is determined that the
aggregate amount of the Allowance exceeds the Cost of the Work and the
Additional Work, if any, then within 30 days after Tenant's written request
(which shall not be given prior to the 25th month of the Lease Term), Landlord
shall pay such excess amount to Tenant, not to exceed $46,150.00, such amount
being $5.00 per square foot of Rentable Area of the Premises. Tenant
understands, however, that its receipt of such credit is subject to and
conditioned on the absence of any breach or default by Tenant under the Lease
(after the expiration of any applicable notice or cure periods).
EXHIBIT B
-1A-
4. PAYMENT. Prior to commencing each Part of the Work, Landlord shall
submit to Tenant a written statement of the total Cost of the Work up to and
including such Part (which, with respect to the initial Part of the Work, shall
include the amount of any overtime projected as necessary to substantially
complete the initial Part of the Work Work by the Commencement Date specified in
the Lease) as then known by Landlord, and such statement shall indicate the
amount, if any, by which the total Cost of the Work up to and including such
Part exceeds the then available Allowance (the "Excess Costs"). Tenant agrees,
within three (3) days after submission to it of such statement, to execute and
deliver to Landlord, in the form then in use by Landlord, an authorization to
proceed with the Work, and within 15 days after submission of such statement,
Tenant shall also then pay to Landlord an amount equal to the Excess Costs. No
Work shall be commenced until Tenant has delivered Authorization proceed. In the
event, and each time, that any change order by Tenant, unknown field condition,
delay caused by acts beyond Landlord's control or other event or circumstance
causes the Cost of the Work to be increased after the time that Landlord
delivers to Tenant the aforesaid initial statement of the Cost of the Work,
Landlord shall deliver to Tenant a revised statement of the total Cost of the
Work, indicating the revised calculation of the Excess Costs, if any. Within 15
days after submission to Tenant of any such revised statement, Tenant shall pay
to Landlord an amount equal to the Excess Costs, as shown in such revised
statement, less the amounts previously paid by Tenant to Landlord on account of
the Excess Costs, and Landlord shall not be required to proceed further with the
Work until Tenant has paid such amount. Delays in the performance of the Work
resulting from the failure of Tenant to comply with the provisions of this
Paragraph 4 shall be deemed to be delays caused by Tenant.
5. SUBSTANTIAL COMPLETION. Landlord shall cause the initial Part of the
Work to be "substantially completed" on or before the scheduled date of
commencement of the term of the Lease as specified in Section 1.05 of the Lease,
subject to delays caused by strikes, lockouts, boycotts or other labor problems,
casualties, discontinuance of any utility or other service required for
performance of the Work, unavailability or shortages of materials or other
problems in obtaining materials necessary for performance of the Work or any
other matter beyond the control of Landlord (or beyond the control of Landlord's
contractors or subcontractors performing the initial Part of the Work) and also
subject to "Tenant Delays" (as defined and described in Paragraph 6 of this Work
Letter). The initial Part of the Work shall be deemed to be "substantially
completed" for all purposes under this Work Letter and the Lease if and when
Landlord's architect issues a written certificate to Landlord and Tenant,
certifying that the initial Part of the Work has been substantially completed
(i.e., completed except for "punchlist" items listed in such architect's
certificate) in substantial compliance with the Working Drawings, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the initial
Part of the Work is not deemed to be substantially completed on or before the
scheduled date of the commencement of the term of the Lease as specified in
Section 1.05 of the Lease, (a) Landlord agrees to use reasonable efforts to
complete the initial Part of the Work as soon as practicable thereafter, (b) the
Lease shall remain in full force and effect, (c) Landlord shall not be deemed to
be in breach or default of the Lease or this Work Letter as a result thereof and
Landlord shall have no liability to Tenant as a result of any delay in occupancy
(whether for damages, abatement of Rent or otherwise), and (d) except in the
event of Tenant Delays, and notwithstanding anything contained in the Lease to
the contrary, the Commencement Date of the Lease Term as specified in Section
1.05 of the Lease shall be extended to the date on which the initial Part of the
Work is deemed to be substantially completed and the Expiration Date of the
Lease Term as specified in Section 1.06 of the Lease shall be extended by an
equal number of days. At the request of either Landlord or Tenant in the event
of such extensions in the commencement and expiration dates of the term of the
Lease. Tenant and Landlord shall execute and deliver an amendment to the Lease
reflecting such extensions. Landlord agrees to use reasonable diligence to
complete all punchlist work listed in the aforesaid architect's certificate
promptly after substantial completion.
6. TENANT DELAYS. There shall be no extension of the scheduled
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or the other information required under Paragraph
1 above on or before the date stated in Paragraph 1;
(ii) the failure of Tenant to grant approval of the Working Drawings
within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials, finishes,
or installations other than the Building Standards or Tenant's requirements for
special construction staging or phasing;
(v) the performance of any Additional Work (as defined in Paragraph
7 below) requested by Tenant or the performance of any work in the Premises by
any person, firm or corporation employed by or on behalf of Tenant, or any
failure to complete or delay in completion of such work; or
(vi) any other act or omission of Tenant that causes a delay.
7. ADDITIONAL WORK. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
("Additional Work") and the approval by Landlord of such Additional Work, which
approval Landlord agrees shall not be unreasonably withheld, Landlord shall
perform such Additional Work, at Tenant's sole cost and expense, subject,
however, to the following provisions of this Paragraph 7. Prior to commencing
any Additional Work requested by Tenant, Landlord shall submit to Tenant a
written statement of the cost of such Additional Work, which cost shall include
a fee payable to Landlord in the amount of 10% of the total cost of such
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Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional Work and an additional charge payable to Landlord in the amount of 5%
of the total Cost of the Additional Work as compensation for Landlord's general
conditions (such fee and additional charge being hereinafter referred to
collectively as "Landlord's Additional Compensation"), and, concurrently with
such statement of cost, Landlord shall also submit to Tenant a proposed tenant
extra order (the "TEO") for the Additional Work in the standard form then in use
by Landlord. Tenant shall within 5 days after delivery of such TEO to Tenant
execute and deliver to Landlord such TEO and shall within 15 days after delivery
of such TEO to Tenant pay to Landlord the entire cost of the Additional Work,
including Landlord's Additional Compensation (as reflected in Landlord's
statement of such cost). If Tenant fails to timely or properly execute or
deliver such TEO or pay the entire cost of such Additional Work, then Landlord
shall not be obligated to do any of the Additional Work and may proceed to do
only the Work, as specified in the Working Drawings.
8. TENANT ACCESS. Landlord hereby grants to Tenant a license to have
access to the Premises prior to the date designated in the Lease for the
commencement of the term of the Lease to allow Tenant to do other work required
by Tenant to make the Premises ready for Tenant's use and occupancy (the
"Tenant's Pre-Occupancy Work"). It shall be a condition to the grant by Landlord
and continued effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such
access to the Premises not less than five (5) days prior to the date on which
such access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance reasonably
acceptable to Landlord; (i) a detailed description of and schedule for Tenant's
Pre-Occupancy Work; (ii) the names and addresses of all contractors,
subcontractors and material suppliers and all other representatives of Tenant
who or which will be entering the Premises on behalf of Tenant to perform
Tenant's Pre-Occupancy Work or will be supplying materials for such work, and
the approximate number of individuals, itemized by trade, who will be present in
the Premises; (iii) copies of all contracts, subcontracts and material purchase
orders pertaining to Tenant's Pre-Occupancy Work; (iv) copies of all plans and
specifications pertaining to Tenant's Pre-Occupancy Work; (v) copies of all
licenses and permits required in connection with the performance of Tenant's
Pre-Occupancy Work; (vi) certificates of insurance (in amounts satisfactory to
Landlord and with the parties identified in, or required by, the Lease named as
additional insureds) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with
Tenant's Pre-Occupancy Work; and (vii) assurances of the ability of Tenant to
pay for all of Tenant's Pre-Occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free completion
of Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and its representatives shall he
subject to reasonable scheduling by Landlord.
(c) Tenant's employees, agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony and not interfere with Landlord or
Landlord's agents in performing the Work and any Additional Work in the
Premises, Landlord's work in other premises and in common areas of the Building,
or the general operation of the Building. If at any time any such person
representing Tenant shall cause or threaten to cause such disharmony or
interference, including labor disharmony, and Tenant fails to immediately
institute and maintain such corrective actions as directed by Landlord, then
Landlord may withdraw such license upon twenty-four (24) hours' prior written
notice to Tenant.
(d) Any such entry into and occupancy of the Premises by Tenant
or any person or entity working for or on behalf of Tenant shall be deemed to
be subject to all of the terms, convenants, conditions and provisions of the
Lease, specifically including the provisions of Section IX thereof (regarding
Tenant's improvements and alterations to the Premises), and excluding only
the covenant to pay Rent. Landlord shall not be liable for any injury, loss
or damage which may occur to any of Tenant's Pre-Occupancy Work made in or
about the Premises or to property placed therein prior to the commencement of
the term of the Lease, the same being at Tenant's sole risk and liability.
Tenant shall be liable to Landlord for any damage to the Premises or to any
portion of the Work or Additional Work caused by Tenant or any of Tenant's
employees, agents, contractors, workmen or suppliers. In the event that the
performance of Tenant's Pre-Occupancy Work causes extra costs to Landlord or
requires the use of other Building services, Tenant shall reimburse Landlord
for such extra cost, and/or shall pay Landlord for such elevator service or
other building services at Landlord's standard rates then in effect
9. LEASE PROVISIONS. The terms and provisions of the Lease, insofar as
they are applicable to this Work Letter are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. MISCELLANEOUS.
(a) This Work Letter shall be governed by the laws of the state in
which the Premise are located.
(b) This Work Letter may not be amended except by a written
instrument signed by the party or parties to be bound thereby.
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(c) Any person signing this Work Letter on behalf of Tenant
warrants and represents he/she has authority to sign and deliver this Work
Letter and bind Tenant.
(d) Notices under this Work Letter shall be given in the same
manner as under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
(g) In the event that the final working drawings and specifications
are included as part of the Initial Plan attached hereto, or in the event
Landlord performs the Work without the necessity of preparing working drawings
and specifications, then whenever the term "Working Drawings" is used in this
Agreement, such term shall be deemed to refer to the Initial Plan and all
supplemental plans and specifications approved by Landlord.
11. EXCULPATION OF LANDLORD AND XXXXXXX. Notwithstanding anything to the
contrary contained in this Work Letter, it is expressly understood and agreed by
and between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate, of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its beneficiaries; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, Xxxxxxx Capital Management Corporation or Xxxxxxx Properties Ltd., or
against any of their respective directors, officers, employees, agents,
constituent partners, beneficiaries, trustees or representatives.
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made
on the part of Landlord while in form purporting to be the representations,
warranties, covenants, undertakings and agreements of Landlord are nevertheless
each and every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in the Building,
the Land and the Premises to the terms of this lease and for no other purpose
whatsoever, and in case of default hereunder by Landlord (or default through,
under or by any of its beneficiaries, or agents or representatives of said
beneficiaries), the Tenant shall look solely to the interest of Landlord in the
Building and Land; that this lease is executed and delivered by Landlord not in
its own right, but solely in the exercise of the powers conferred upon it as
such Trustee; that neither the Landlord nor any of Landlord's beneficiaries
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained, and no
liability or duty shall rest upon Landlord to sequester the trust estate or the
rents, issues and profits arising therefrom, or the proceeds arising from any
sale or other disposition thereof; and that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be asserted or
enforceable against, said Landlord, American National Bank and Trust Company of
Chicago, a national banking association, individually or personally, but only as
Trustee under the provisions of a Trust Agreement dated December 5, 1985 and
known as its Trust No. 66078, or against any of the beneficiaries under said
Trust Agreement, or their respective agents, on account of this lease or on
account of any representation, warranty, covenant, undertaking or agreement of
Landlord in this lease contained, either express or implied, all such personal
liability, if any, being expressly waived and released by Tenant and by all
persons claiming by, through or under Tenant.
IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the 27th
day of March, 1998.
TENANT: LANDLORD:
KANBAY INCORPORATED, an Illinois. AMERICAN NATIONAL BANK AND TRUST
------------------------------------- COMPANY OF CHICAGO, not personally, but
corporation as Trustee aforesaid
-------------------------------------
By: /s/ Authorized Party By: /s/ Authorized Party
------------------------- ---------------------------------
Its: President & CEO Its: TRUST OFFICER
------------------------ --------------------------------
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EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls shall not be obstructed or used for any purpose
other than ingress and egress. The halls, passages, entrances, elevators,
stairways, balconies and roof are not for the use of the general public, and
Landlord shall in all cases retain the right to control or prevent access
thereto by all persons whose presence in the judgment of Landlord shall be
prejudicial to the safety, character, reputation or interests of Landlord and
its tenants, provided that nothing herein contained shall be construed to
prevent such access by persons with whom the tenant normally deals in the
ordinary course of its business unless such persons are engaged in illegal
activities. No tenant and no employees of any tenant shall go upon the roof of
the Building without the written consent of Landlord.
2. No awnings or other projections shall be attached to the outside
walls or surfaces of the Building nor shall the interior or exterior of any
windows be coated without the prior written consent of Landlord. Except as
otherwise specifically approved by Landlord, all electrical ceiling fixtures
hung in offices or spaces along the perimeter of the Building must be
fluorescent and of a quality, type, design and bulb color approved by Landlord.
Tenant shall not place anything or allow anything to be placed near the glass of
any window, door, partition or wall which may appear unsightly from outside the
Premises.
3. No sign, picture, plaque, advertisement, notice or other material
shall be exhibited, painted, inscribed or affixed by any tenant on any part of,
or so as to be seen from the outside of, the Premises or the Building without
the prior written consent of Landlord. In the event of the violation of the
foregoing by any tenant, Landlord may remove the same without any liability, and
may charge the expense incurred in such removal to the tenant violating this
rule. Interior signs on doors and the directory tablet shall be inscribed,
painted or affixed for each tenant by Landlord at the expense of such tenant,
and shall be of a size, color and style acceptable to Landlord.
4. The toilets and wash basins and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All damage
resulting from any misuse of the fixtures shall be borne by tenant who, or whose
servants, employees, agents, visitors or licensees, shall have caused the same.
5. No tenant or its officers, agents, employees or invitees shall xxxx,
paint, drill into, or in any way deface any part of the Premises or the
Building. No boring, cutting or stringing of wires or laying of linoleum or
other similar floor coverings shall be permitted except with the prior written
consent of Landlord and as Landlord may direct. Notwithstanding the foregoing,
Tenant may hang pictures and other artworks of ordinary weight on the walls of
the Premises, using customary methods, without Landlord's consent.
6. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises and no cooking shall be done or permitted by any
tenant on the Premises except that microwave cooking in a UL-approved microwave
oven and the preparation of coffee, tea, hot chocolate and similar items for the
tenant and its employees and business visitors shall be permitted. Tenant shall
not cause or permit any unusual or objectionable odors to escape from the
Premises.
7. The Premises shall not be used for manufacturing or for the storage
of merchandise except as such storage may be incidental to the use of the
Premises for general office purposes. No tenant shall engage or pay any
employees on the Premises except those actually working for such tenant on the
Premises nor advertise for laborers giving an address at the Premises. The
Premises shall not be used for lodging or sleeping or for any immoral or illegal
purposes.
8. No tenant or its officers, agents, employees or invitees shall make,
or permit to be made any unseemly or disturbing noises, sounds or vibrations or
disturb or interfere with occupants of this or neighboring buildings or Premises
or those having business with them whether by the use of any musical instrument,
radio, phonograph, unusual noise, or in any other way.
9. No tenant or its officers, agents, employees or invitees shall throw
anything out of doors, balconies or down the passageways.
10. Tenant shall not maintain armed security in or about the Premises nor
possess any weapons, explosives, combustibles or other hazardous devices in or
about the Building and/or Premises.
11. No tenant or its officers, agents, employees or invitees shall at any
time use, bring or keep upon the Premises any flammable, combustible, explosive,
foul or noxious fluid, chemical or substance, or do or permit anything to be
done in the leased Premises, or bring or keep anything therein, which shall in
any way increase the rate of fire insurance on the Building, or on the property
kept therein, or obstruct or interfere with the rights of other tenants, or in
any way injure or annoy them, or conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy upon the Building, or
any part thereof, or with any rules and ordinances established by the Board of
Health or other governmental authority.
12. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. Each tenant must, upon the termination of this
tenancy, restore to Landlord all keys of stores, offices, and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys so furnished, such tenant shall pay to
1
Landlord the cost of replacing the same or of changing the lock or locks opened
by such lost key if Landlord shall deem it necessary to make such change.
13. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matter of any description must take place during the hours
which Landlord may determine from time to time. The moving of safes or other
fixtures or bulky matter of any kind must be made upon previous notice to the
manager of the Building and under his or her supervision, and the persons
employed by any tenant for such work must be acceptable to Landlord. Landlord
reserves the right to inspect all safes, freight or other bulky articles to be
brought into the Building and to exclude from the Building all safes, freight or
other bulky articles which violate any of these Rules and Regulations or the
Lease of which these Rules and Regulations are a part. Landlord reserves the
right to prohibit or impose conditions upon the installation in the Premises of
heavy objects which might overload the building floors. Landlord will not be
responsible for loss of or damage to any safes, freight, bulky articles or other
property from any cause, and all damage done to the Building by moving or
maintaining any such safe or other property shall be repaired at the expense of
the tenant.
14. No tenant shall purchase or otherwise obtain for use in the Premises
water, ice, towel, vending machine, janitorial, maintenance or other like
services, or accept barbering or bootblacking services, except from persons
authorized by Landlord, and at hours and under regulations fixed by Landlord.
15. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as an office building and upon written notice from
Landlord any tenant shall refrain from or discontinue such advertising. No
tenant shall use any graphic image of the Building or any part of the Building
for advertising or public relations without Landlord's written permission.
16. Landlord reserves the right to exclude from the Building between the
hours of 10:00 p.m. and 7:00 a.m. and at all hours of Saturdays, Sundays and
legal holidays all persons who do not present a pass signed by Landlord.
Landlord shall furnish passes to persons for whom any tenant requests the same
in writing. Each tenant shall be responsible for all persons for whom he
requests passes and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other commotion, Landlord reserves the
right to prevent access to the Building during the continuance of the same, by
closing of the gates and doors or otherwise, for the safety of the tenants and
others and the protection of the Building and the property therein.
17. Any outside contractor employed by any tenant, shall, while in the
Building, be subject to the prior written approval of Landlord and subject to
the Rules and Regulations of the Building. Tenant shall be responsible for all
acts of such persons and Landlord shall not be responsible for any loss or
damage to property in the Premises, however occurring.
18. All doors opening onto public corridors shall be kept closed, except
when in use for ingress and egress, and left locked when not in use.
19. The requirements of tenants will be attended to only upon application
to the Office of the Building.
20. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
21. All office equipment of any electrical or mechanical nature shall be
placed by tenants in the Premises in setting reasonably approved by Landlord, to
absorb or prevent any vibration, noise or annoyance.
22. No air conditioning unit or other similar apparatus shall be
installed or used by any tenant without the written consent of Landlord.
23. There shall not be used in any space, or in the public halls of the
Building either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
24. Landlord will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires or
stringing of wires will be allowed without written consent of Landlord. The
location of telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Landlord. All such work shall be
effected pursuant to permits issued by all applicable governmental authorities
having jurisdiction.
25. No vendor with the intent of selling such goods shall be allowed to
transport or carry beverages, food, load containers, etc., on any passenger
elevators. The transportation of such items shall be via the service elevators
in such manner as prescribed by Landlord.
26. Tenants shall cooperate with Landlord in the conservation of energy
used in or about the Building, including without limitation, cooperating with
Landlord in obtaining maximum effectiveness of the cooling system by closing
drapes or other window coverings when the sun's rays fall directly on windows of
the Premises, and closing windows and doors to prevent heat loss. Tenant shall
not obstruct, alter or in any way impair the efficient
2
operation of Landlord's heating, lighting, ventilating and air conditioning
system and shall not place bottles, machines, parcels or any other articles on
the induction unit enclosure so as to interfere with air flow. Tenant shall not
tamper with or change the setting of any thermostats or temperature control
valves, and shall in general use heat, gas, electricity, air conditioning
equipment and heating equipment in a manner compatible with sound energy
conservation practices and standards.
27. All parking ramps and areas, pedestrian walkways, plazas, and other
public areas forming a part of the Building shall be under the sole and absolute
control of Landlord with the exclusive right to regulate and control these
areas. Tenant agrees to conform to the rules and regulations that may be
established by Landlord for these areas from time to time.
28. Landlord reserves the right to exclude or expel from the Building any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs, or who shall in any manner do any act in violation of any of
the rules and regulations of the Building.
29. Tenant and its employees, agents, subtenants, contractors and
invitees shall comply with all applicable "no-smoking" ordinances and,
irrespective of such ordinances, shall not smoke or permit smoking of
cigarettes, cigars or pipes outside of Tenant's Premises (including plaza areas)
in any portions of the Building except areas specifically designated as smoking
areas by Landlord. If required by applicable ordinance, Tenant shall provide
smoking areas within Tenant's Premises.
3
EXHIBIT E
Suite Acceptance Agreement
Building Name/Address: ________________________________________________________
Tenant Name: __________________________________________________________________
Tenant Code: __________________________ Suite Number: _________________________
Management's Tenant Contact: ___________________________ Phone: _______________
Gentlement:
As a representative of the above referenced tenant, I/we have physically
inspected the suite noted above and its improvements with _________________, a
representative of _______________________ (name of HPL Corporation). I/we accept
the suite improvements as to compliance with all the requirements indicated in
our lease, also including the following verified information below:
Lease Commencement Date: __________________, Occupancy Date _________________
Lease Rent Start Date*: ___________________, Actual Rent Start*: ____________
Lease Expiration Date: ____________________, Actual Expiration Date: ________
Date Keys Delivered: ____________________
Items requiring attention: ____________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
* If these dates are not the same, attach documentation.
NOTE: This inspection is to be made prior to tenant move-in.
Very truly yours,
--------------------------------
By:
-----------------------------
Its:
----------------------------
Date:
------------------
DISTRIBUTION
Tenant
Tenant Lease File
Leasing Manager: _______________________
HPL Document Control: _______________________
Regional Construction Manager: _______________________
Regional Engineering Manager: _______________________
EXHIBIT F
LETTER OF CREDIT
[TO BE RECOPIED ON BANK LETTER OF CREDIT LETTERHEAD]
[DATE]
Xxxxxxx Properties, Ltd.,
as agent for American National Bank and
Trust Company of Chicago, as Trustee
under Trust No. 66078
RE: IRREVOCABLE LETTER OF CREDIT NO. _______________
AMOUNT OF LETTER OF CREDIT: $50,000.00
EXPIRATION DATE: ______________
Gentlemen:
We hereby issue this Irrevocable Letter of Credit in favor of Xxxxxxx
Properties Ltd. ("Xxxxxxx"), as agent for American National Bank and Trust
Company of Chicago, as Trustee under Trust No. 66078 ("Owner"). This Letter of
Credit is available against Owner's drafts presented by Xxxxxxx at sight drawn
on this Bank bearing the clause:
"Drawn under the [INSERT NAME OF BANK] Letter of Credit Number __________"
and accompanied by the following document:
A written instrument (the "Statement"), signed by an officer of Xxxxxxx,
stating that either one of the following two (2) events has occurred:
(1) KANBAY INCORPORATED ("Tenant"), is in breach or default under a Lease
(the "Lease") dated as of March 3, 1998 between Owner and Tenant for space at
0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, and Owner is entitled to draw the sum
demanded in the accompanying sight draft; OR
(2) This Letter of Credit is scheduled to expire in less than thirty(30)
days from the date of this Statement and Owner has not received from Tenant (i)
a substitute letter of credit or an extension of this Letter of Credit
acceptable in all respects to Owner or (ii) a cash deposit in the amount of this
Letter of Credit.
The above Statement may be issued by a successor managing or other
authorized agent (signed as such) for the premises demised by the Lease if such
Statement is accompanied by written notice issued by Xxxxxxx authorizing such
managing or other authorized agent to issue such Statement.
This Letter of Credit is transferable. Transfers are restricted to the
successor in interest of the Owner as Landlord under the Lease. Any such
transfer request must be accompanied by Xxxxxxx'x or Owner's statement
certifying that the transferee (name and address) is such successor in interest.
We hereby agree with the drawers, endorsers and bonafide holders of all
sight drafts drawn in compliance with the terms and conditions of this Letter of
Credit that such sight drafts will be duly honored upon presentation and
delivery of the sight draft, together with the Statement specified above and
this Letter of Credit, if presented as aforesaid. Drafts and Statements will be
honored provided that the terms and conditions of this Letter of Credit are
complied with.
We hereby agree that partial drawings are permitted under this Letter of
Credit.
We hereby agree that this Letter of Credit shall be effective as of the
date hereof and shall continue in effect until the close of business on its
expiration date of , 199 .
We agree that sight drafts drawn in compliance with the terms and
conditions of this Letter of Credit may be negotiated at any time while this
Letter of Credit remains in effect.
The credit is subject to the Uniform Customs and Practice for Documentary
Credits (1983 revision), International Chamber of Commerce-Publication 400.
Very truly yours,
(NAME OF BANK)
By:
--------------------------
Title:
--------------------------
EXHIBIT "G"
FLOOR PLAN OF EXPANSION SPACE
[GRAPHIC]
EXHIBIT H
HVAC STANDARDS
The ventilation air-cooling and heating system for the Building is designed
to provide temperature conditions within the following ranges: (i) no greater
than +78 DEG. Fahrenheit (hereinafter "F") where the outside temperature is
greater than +94 DEG. F and (ii) no lower than +68 DEG. F and no greater than
+76 DEG. F where the outside temperature is less than +95 DEG. F. Such system
specifications assume customary density and the absence of heat generating
equipment that might affect the temperature condition.
EXHIBIT "I"
JANITORIAL SPECIFICATIONS
1. SCOPE
A. COVERAGE:
The Contractor shall perform the following specified services
throughout the entire premises, including all office space, lobbies,
corridors, basement areas, stairways, loading docks, lavatories,
passageways, service and utility areas, and elevator cabs, and shall
render cleaning of tenant's lunch areas, computer rooms and other
areas if Landlord is obligated to maintain such areas. MECHANICAL
AREAS ARE INCLUDED AT THE DISCRETION OF THE OWNER.
B. QUALITY:
The intent of this specification is that the Contractor will provide
cleaning services of character customarily provided in first class
office buildings in Metropolitan Chicago, whether such services
requested by the Owner or a tenant of the Owner. Owner to be sole
judge of said quality and required frequency of services to be
provided herein.
2. GENERAL
A. SCHEDULE:
All nightly cleaning services shall be performed five (5) nights per
week, Monday through Friday. No nightly services (except makeup work
required or specified herein) need be performed on Saturday, Sunday,
or legal holidays, unless directed by Owner. Nightly cleaning
operations will begin after 5:00 p.m.,
B. SUPERVISION:
Contractor shall employ competent supervisory personnel, in addition
to the non-working Supervisor in the building who will be capable of
and will provide all reports required by Owner. The Supervisor shall
provide schedules of all periodic cleaning, inspect the building on a
regular basis, investigate all tenant complaints, report all items
needing repair or maintenance, and generally supervise the entire
cleaning of the building. He will also see to it that all employees
report repairs needed, or any other unusual or unsafe condition they
encounter.
C. UNIFORMS & EQUIPMENT:
Contractor shall employ on the premises only persons skilled and
trained in the work assigned to them. Contractor shall promptly
furnish substitute qualified persons for any employees that, in the
sole opinion of the Owner, are unsatisfactory. All contractor
personnel shall be bonded, and Contractor shall pay all wages, payroll
taxes and insurance, and all payments required by union contracts, if
any.
D. PERSONNEL:
Contractor shall furnish proper cleaning materials, implements,
machinery, supplies and uniforms for the satisfactory performance of
all services. Owner shall have the right to determine what is
satisfactory performance. All Contractor personnel shall be properly
uniformed and display the individual's photo I.D.'s identifying the
individual and Contractor at all times. Owner shall have the right to
select and/or approve uniforms worn by personnel in the building.
E. STORAGE:
Owner shall provide Contractor with free space on the premises for
storage of cleaning materials, implements, and machinery, and for
locker and changing areas. Full length lockers, tables, chairs,
receptacles, locking key cabinet, mirrors and other such items as
Owner may request (from time to time) are to be supplied by Contractor
at Contractor's expense.
F. RULES
Contractor shall at all times maintain good order among its employees
and shall insure compliance with building rules and regulations,
copies of which shall be provided by the Owner at Contractor's
request.
G. SECURITY:
While cleaning the tenanted areas, Contractor's personnel will work
behind locked doors and will not admit anyone into the suite, except
authorized Contractor or Owner personnel, or tenants having keys to
the suite. On completion of nightly chores, all lights will be turned
off, doors locked, draperies and blinds closed, and offices left in a
neat and orderly condition. Lids or seats on all toilets will be left
in a raised position. All map sinks, locker areas and other service
areas will be cleaned thoroughly, and all cleaning equipment neatly
stored in a central location. The Building Manager or Chief Engineer
or Security Guards will be promptly notified of any irregularities.
All night personnel will be required to sign in and out every night at
the beginning and end of their shift in a book provided by Owner at
the Security Console.
GROUND AND LOWER FLOOR (CONCOURSE) LOBBIES
A. NIGHTLY:
1. UNCARPETED FLOORS. Hard-surface floors are to be swept and dust
mopped, using a wet-mop with clear water and then dried. All mop marks
and water splashes will be removed from walls, baseboards and
furniture, and all furniture and fixtures replaced to their original
position when mopping is completed. All granite floors will be machine
buffed entirely, using an approved spray-on solution to obtain maximum
shine.
2. CARPETED FLOORS. All carpeted floors are to be vacuumed and edged with
edging tool, moving all sand urns, furniture and accessories.
Baseboards will be wiped with a treated dust cloth after vacuuming.
Carpet and baseboards will be spot-cleaned where necessary.
3. WALLS AND DOORS. All walls, doors and jambs will be spot-cleaned to
remove all fingerprints, smudges and spills.
4. LOBBY GLASS. All glass windows, doors, interior and exterior of
entrance doors, glass partitions and directory board glass will be
wiped clean using an approved glass cleaner, and all glass will be
left in a bright condition, free of dust and streaks.
5. MISCELLANEOUS METALWORK. All metalwork, such as mail chutes and boxes,
door hardware, door plates and names, metal lettering, security
console, cigarette urns, etc., will be wiped clean and polished and
left in a bright condition, free of dust and streaks.
6. ELEVATOR DOORS AND SADDLES. Elevator doors will be wiped down and
polished, and left in a bright condition, free of all dust and
streaks. Elevator saddles will be wiped clean and all dirt and debris
removed from door tracks suing a vacuum crevice tool. Spills and
smudges will be removed so that the saddles and tracks are left in a
bright, clean condition.
7. RUBBER MATS. Pedi-mats and rubber mats are to be vacuumed. Rubber mats
are to be rolled up, and removed from Lobby Floor each night.
Pedi-mats are to be shampooed as often as necessary as required by
Owner.
8. CIGARETTE URNS. Clean all urns, remove all butts and debris and
replace sand as necessary.
9. DUSTING. All horizontal surfaces and elevators within reach, are to be
dusted nightly using treated dust cloths. No feather dusters will be
allowed.
B. WEEKLY:
1. UNCARPETED FLOORS. All uncarpeted floors will be wet-mopped dried and
spray buffed. All wax and marks will be removed from baseboards.
Floors and baseboards to be left in a uniformly bright, clean
condition.
2. CARPETED FLOORS. All carpeted floors will be vacuumed using a pile
lifter to remove all embedded dirt and grit and restore pile to a
uniformly upright condition.
3. GLASS PARTITIONS AND DOORS. All interior glass (excluding perimeter
Windows) will be thoroughly cleaned and left in a uniformly bright,
clean condition.
C. MONTHLY
1. HIGH DUSTING. All high-dusting beyond the reach of the normal
day-to-day dusting will be accomplished monthly. This will include,
but not be limited to, all ledges, charts, picture frames, graphs, air
diffusers, and other horizontal surfaces. All high hat fixtures will
be wiped down to eliminate any dust or fingerprints.
2. DOORS AND JAMBS. All painted doors and jambs will be sponged down with
clean water, using a mild cleansing agent where necessary, rinsed with
clean water and dried, leaving no streaks, marks or smudges.
3. CARPETED FLOORS. Shampoo and extract. Carpets will be destaticized
semi-annual (as required by Landlord) and flame-proofed, if and as
required by law.
D. QUARTERLY.
1. All air diffusers will be thoroughly dusted and wiped clean.
2. LOBBY FLOORS. The granite floors will be stripped completely free of
any wax, sealer, or other finish, and an approved sealer will be
applied. The stripping and sealing, due to the length of the process,
will be performed on a weekend basis only. The Contractor will be
required to make the necessary arrangements for a weekend crew that
will be able to complete the entire lobby floor during said scheduled
weekend. When completed, the surfaces shall have a uniformly clean
appearance.
E. SEMI-ANNUALLY
1. All granite walls will be sponged and rinsed down with clean water and
dried, leaving no streaks, marks or smudges.
2. Wipe clean all surfaces of ceiling grilles and air louvres.
F. ANNUALLY
1. AIR DIFFUSERS. All air diffusers will be thoroughly washed and dried
and left in a clean condition as often as necessary, but not less
often than each twelve months.
2. WOOD DOORS. Unpainted (oiled) doors will be thoroughly cleaned.
3. PUBLIC AREAS
(Including, but not limited to, all men's and women's lounges and all
lobbies, and freight elevator corridors (on all floors) above first floor,
and men's and women's lounges.)
A. NIGHTLY:
1. CARPETED FLOORS. All carpeted floors are to be vacuumed and edged
with edging tool, moving all sand urns, furniture and
accessories. Baseboards will be wiped with a treated dust cloth
after vacuuming. Carpets and baseboards will be spot-cleaned
where necessary.
2. UNCARPETED FLOORS. All hard-surfaced floors are to be mopped with
a treated dust mop and maintained as needed to preserve and
retain uniformly bright appearance, with particular attention to
edges, corners and behind doors. All spills and stains will be
removed with damp mop or cloth. Baseboards will be wiped down
with treated dust cloth.
3. WALLS. All walls will be spot-cleaned to remove all smudges,
stains and handmarks, using only clean water, or mild cleaning
agent where necessary. When soap or cleaner is used, the wall
will be rinsed with clear water and dried. No abrasive cleaner is
to be used. All baseboards and holdings will be spot-cleaned
where necessary.
4. DOORS AND JAMBS. All doors and jambs will be spot-cleaned to
remove any handmarks, stains, spills or smudges. Rinse with clear
water and dry. Door edges and jambs will be dusted where
necessary. When completed, doors and jambs shall have a uniformly
clean appearance.
5. GLASS, DOORS AND PARTITIONS. All glass doors, interior and
exterior, and partitions, including any directory glass, will be
spot-cleaned to remove any fingerprints, smudges or stains and
will be left in a uniformly bright, clean condition.
6. MISCELLANEOUS METALWORK. All metalwork, such as mail chutes, door
hardware and frames, metal lettering, and other metal accessories
will be wiped clean and polished and left in uniformly clean and
bright condition, from of all dust and streaks.
7. ELEVATOR DOORS AND SADDLES. Elevator doors and frames will be
wiped down and polished, removing all dust, marks, and stains,
and left in a uniformly clean and bright condition. Elevator
saddles will be wiped clean and all dirt and debris removed from
door tracks, using vacuum and edging tool. Spills and smudges
will be removed so that saddles and tracks are left in a bright,
clean condition.
8. CIGARETTE URNS. Clean all cigarette urns, removing all dust and
debris and replace sand when necessary. Materials to be furnished
by contractor.
9. DUSTING. Dust all furniture, accessories, ledges, and all other
horizontal surfaces, using a treated dust cloth. No feather
dusters will be allowed. All surfaces to be left in a clean,
dust-free condition. Spot-clean as necessary.
10. FURNITURE AND MISCELLANEOUS. All furniture is to be wiped, using
a treated dust cloth, paying particular attention to legs and
surfaces near the floor. Vinyl or leather surfaces are to be
dusted and spot cleaned where necessary, cloth to be vacuumed as
necessary.
B. WEEKLY:
1. UNCARPETED FLOORS. All hard-surfaced floors will be wet-mopped.
All wax and marks will be removed from baseboards. Floors and
baseboards to be left in a uniformly bright, clean condition.
2. GLASS PARTITIONS GLASS DOORS AND GLASS SIDE LITES. All interior
glass (excluding perimeter windows) will be thoroughly cleaned
and left in a uniformly bright, clean condition.
3. CARPETED FLOORS. All carpeted floors will be vacuumed using a
pile lifter to remove all embedded dirt and grit and restore pile
to a uniformly upright condition.
C. MONTHLY:
1. HIGH DUSTING. All high-dusting beyond the reach of the normal
day-to-day dusting will be accomplished monthly. This will
include, but not be limited to, all ledges, charts, picture
frames, graphs, air diffusers, and other horizontal surfaces. All
high hat fixtures will be wiped down to eliminate any dust and
fingerprints.
2. DOOR AND JAMBS. All painted doors and jambs will be sponged down
with clean water, using a mild cleansing agent where necessary,
rinsed with clean water and dried, leaving no streaks, marks, or
smudges.
3. CARPETED FLOORS. All carpeted floors will be vacuumed using a
pile lift to remove all embedded dirt and gut and restore pile to
a uniformly upright condition.
D. QUARTERLY:
1. CARPETED FLOORS. Shampoo and extract. Carpets will be
destaticised (as required by Landlord) and flame-proofed, if and
as required by law.
2. Wipe clean all surfaces of ceiling grilles and air louvers.
3. UNCARPETED FLOORS. All uncarpeted floors will be completely
stripped, removing all finish down to the base clean floor. After
the floors have been mopped, rinsed and dried, they will be
refinished and machine polished to a uniformly bright, clean
appearance. All wax spills and splashes will be removed from
baseboards, doors, jambs and walls.
E. ANNUALLY
1. AIR DIFFUSERS. All Air diffusers will be thoroughly washed and
dried and left in clean condition as often as necessary, but not
less than quarterly.
2. WOOD DOORS. Unpainted (oiled) doors will be thoroughly cleaned
and oiled as often as necessary, but not less than once a year.
4. ELEVATORS
A. NIGHTLY:
1. CARPETS. All elevator carpets will be vacuumed and spot cleaned
nightly, using particular care to clean in corners along edges.
2. SADDLES. All saddles and door tracks will be wiped clean,
removing all dirt and stains, dirt and debris removed from door
tracks, using vacuum and edging tool. Saddles and tracks will be
left in a uniformly bright, clean condition.
3. WALLS AND METALWORK. All marks, streaks, and smudges will be
removed, and all walls (including formica walls,) doors (interior
and Exterior), and jambs will be wiped down and polished to a
uniformly bright appearance, including door jambs, edges, and
ceiling grills. The telephone box will be cleaned inside and out.
4. CEILING. Elevator ceilings will be spot cleaned nightly.
B. MONTHLY:
1. CARPETS. Elevator carpets will be steam-cleaned or dry shampooed
as often as necessary to maintain even appearance, but not less
than once per month. Carpets will be destaticized (as required by
Landlord) and flame-proofed if and as required by law.
2. DUSTING. Ceiling grills and light, leases will be removed, dusted
and wiped clean and reinstalled. All high-dusting will be done at
this time.
3. CEILING. Entire elevator ceilings will be thoroughly washed and
wiped down each month.
5. RESTROOMS
A. NIGHTLY:
1. FLOORS. Floors will be swept clean and wet-mopped using a
germicidal detergent approved by owner. The floors will then be
mopped dry and all water marks and stains wiped from walls and
metal partition bases. Water and germicidal solution to be
changed on each floor.
2. METAL FIXTURES. Wash and polish all mirrors, powder shelves,
bright work (including exposed piping below wash basins), towel
dispensers, receptacles, and any other metal accessories. Mirrors
will be cleaned and polished. Contractor shall use only
nonabrasive, non-acidic material to avoid damage to metal
fixtures.
3. CERAMIC FIXTURES. Scour, wash and disinfect all basins, bowls and
urinals with owner approved germicidal detergent solution,
inspect and clean areas of difficult access, such as the
underside of toilet bowl rings and urinals to prevent building up
of calcium and iron oxide deposits. Wash both sides of all toilet
seats with approved germicidal solution and wipe dry. Toilet
seats to be left in the upright position.
4. WALLS AND METAL PARTITIONS. Damp Wipe all metal toilet partitions
and modesty screens and tiled walls using approved germicidal
solution. All surfaces are to be wiped dry so that all wipe marks
are removed and surface has a uniformly bright appearance. Dust
the top edges of all partitions, ledges and mirror tops.
B. WEEKLY
1. FLOORS. All restroom floors will be machine buffed, using a
germicidal solution, detergent and water. All buffing floors
will be rinsed with clear water and dried. All water marks
will be removed from walls, partitions and fixtures. If
directed by Owner, an approved floor finish will be applied.
2. FLOOR DRAINS. Clean, disinfect, and fill with water at least
weekly.
C. MONTHLY:
1. WALLS AND METAL PARTITIONS AND WASHABLE CEILING. Remove light
lenses and ceiling grills where possible. Wash thoroughly, dry,
and replace. This will be done as often as necessary, but not
less than quarterly.
2. WALLS. Thoroughly wash and wipe dry ceramic tile walls each
month.
D. QUARTERLY.
Strip all restroom floors, machine scrub and re-seal. If Owner
directs, the frequency of this, stripping will increase to provide a
uniform clean appearance at all times.
6. TENANTED AREAS
A. NIGHTLY:
1. CARPETED FLOORS. All carpeted floors will be carefully vacuumed
daily, moving all light furniture such as chairs and cigarette
stands. All furniture will be replaced to its original position.
Vacuum under all desks and large furniture, where possible.
2. UNCARPETED FLOORS. All hard-surfaced floors will be dust-mopped
nightly, using a treated dust mop, moving all light furniture.
All furniture will be replaced to its original position. Mop
under all desks and large furniture, where possible. Spot clean
where necessary to remove spills and smudges and spray buff as
necessary.
3. DUSTING. Using a treated dust cloth, wipe all furniture tops,
legs and sides. Wipe clean telephones, moving lamps, ash trays,
and other accessories. Dust wipe all horizontal surfaces within
reach, including window ledges, moldings and xxxxx on glass and
banker-type partitions. Papers left on desk tops will not be
moved.
4. FURNITURE AND ACCESSORIES. Wipe file cabinet telephones and
accessories to remove steaks, stains, spills and fingermarks.
Wash blackboards and chalk trays. Empty and clean all waste
baskets and replace liners where necessary. Liners to be provided
by Contractor.
5. DESK TOPS. Clean with a mild soap solution, all steel desk tops
and polish wooden desks and furniture as required. Clean tops of
all glass topped furniture.
6. DOORS AND WALLS. All doors, jambs, walls, window mullions and
glass partitions will be spot-cleaned to remove streaks, smudges,
fingermarks, spills and stains, paying particular attention to
walls around switchplates and door jambs and doors around knob
opening edges.
7. TRASH REMOVAL. Empty and clean all waste receptacles, and remove
waste paper and replace liners in each receptacle. Dust interiors
of receptacles and wash as necessary.
8. STAIRWAYS. Dust mop all private stairways and vacuum, if
carpeted.
9. PRIVATE WASHROOMS. Clean and sanitize all private washrooms,
including toilets, related plumbing fixtures, mirrors, and other
cleanable surfaces.
B. WEEKLY:
1. CARPETED FLOORS. All carpeted floors will be edged with a small
broom or other edging tool, paying particular attention to
corners, behind doors and around furniture legs and bases.
Baseboards will be wiped with a treated dust cloth and spot
cleaned where necessary.
2. UNCARPETED FLOORS. All hard-surfaced floors will be spray buffed
with an electric rotary buffing machine as necessary. All wax
marks will be removed from baseboards, doors and frames.
3. FURNITURE. Wipe with treated dust cloth, all chair legs and rungs
and furniture legs and other areas of furniture and accessories
not dusted during the nightly dusting.
4. BRIGHT WORK. Wipe clean all bright work, including but not
limited to chrome hardware.
C. MONTHLY:
1. HIGH-DUSTING. All horizontal surfaces and ledges such as picture
frames, etc., that are beyond the reach of normal nightly
dusting, will be dusted monthly using a treated dust cloth.
2. GLASS PARTITIONS AND DOORS. All glass doors and partitions will
be thoroughly washed, dried and polished, but not less than once
a month. All water marks and stains will be wiped from adjoining
surfaces.
D. QUARTERLY:
1. FABRIC FURNITURE. Thoroughly vacuum all fabric furniture every
three months to maintain a clean and dust free appearance.
2. BASEBOARDS. Wash all baseboards every three months.
3. VENETIAN BLINDS. Clean and dust venetian blinds at least once
every three months and dust more frequently if required, to
maintain a clean and dust free appearance.
4. CARPETED FLOORS. All carpeted corridors and heavy traffic areas
on each tenant space will be vacuumed using a pile lifter on a
bi-monthly basis and the balance of the tenant space will be
completed quarterly in order to restor pils to its original
upright condition and remove all embedded grit and dirt. Heavy
traffic areas may require pile lifting more often, if necessary,
to maintain presentable condition of the carpet.
5. UNCARPETED FLOORS. All uncarpeted floors will be completely
stripped, removing all finish to the bare clean floor. After the
floors have been mopped, rinsed, and dried, they will be
refinished and machine polished to a uniformly bright, clean
appearance. All wax spills and splashes will be removed from
baseboards, doors, jashs, and walls.
6. WASTE BASKETS. As requested by Owner or Tenant, thoroughly wash
waste baskets inside and out, dry and replace to their original
position using plastic liners, furnished by Contractor.
7. JANITORIAL CLOSETS AND STORAGE ROOMS
All janitors closets, mop sinks, storage rooms, restrooms, lunchrooms, work
areas provided by Owner for use of Contractors personnel, will be kept in a
neat, clean and orderly condition at all times. Mop sinks and the area
immediately adjacent will be thoroughly cleaned immediately after each use.
The restrooms will be maintained in the same condition as the public
restrooms. Before leaving the premises each night, all of the service areas
will be dust-mopped and spot cleaned, where necessary but not less often
than every sixty days. Concrete floors will be dust-mopped nightly and
wet-mopped monthly. All doors and walls will be spot-cleaned nightly.
8. TENANT STORAGE AREAS - LOWER LEVEL
All concrete floors in storage areas and adjacent corridors (not lockers)
will be kept in a neat, clean and orderly condition, free from dirt, dust
and debris. These areas will be checked daily and swept, using sweeping
compound as necessary, but not less than once per month, or as needed. ANY
DISCREPANCIES, SAFETY OR FIRE HAZARDS WILL BE REPORTED TO THE BUILDING
MANAGER.
9. STAIRWALLS
A. DAILY:
1. CARPETED. All tenant and common area carpeted stairs and landings will
be vacuumed at least once daily to remove all dust, litter and
footprints and spot-cleaned, as necessary, to remove all spills and
stains.
2. UNCARPETED. All uncarpeted stairs and landings will be swept with a
treated dust mop daily and spot-cleaned, as necessary, to remove all
spills and stains.
B. MONTHLY:
1. UNCARPETED. All uncarpeted stairs and landings will be wet mopped
and dried monthly.
2. DUSTING. All risers, handrails, stingers, baseboards, light
fixtures and all horizontal ledges and surfaces will be wiped
with a treated dust cloth.
C. QUARTERLY:
1. HIGH-DUSTING. All high-dusting, including but not limited to,
door closers and all other surfaces not reached during normal
dusting operations, will be dusted or cleaned, as necessary, but
not less often than each three months.
10. SPECIAL AREAS
A. GROUND FLOOR TENANTS
These specifications shall include ground floor and concourse floor
tenants if specifically required by Owner. If cleaning of ground floor
or concourse tenant space by Landlord is not required, then the
Contractor may negotiate directly with the Tenant for cleaning of
space.
B. PRIVATE RESTROOMS, KITCHEN, LUNCHROOMS, AND COMPUTER ROOMS.
Cleaning of these special areas is included as part of these
specifications, insofar as the owner is required to maintain such
areas.
11. DAY SERVICES
A. Performed by Owner's personnel. However, if required by Owner,
Contractor will provide day services at an additional cost to the
Owner.
SECOND AMENDMENT TO
OFFICE LEASE
THIS SECOND AMENDMENT TO
OFFICE LEASE (this "Amendment") is made this 15th
day of March, 1999, by and between 0000 XXXXXX XXXXX, L.L.C., a Delaware limited
liability company ("Landlord"), and KANBAY, INCORPORATED, an Illinois
corporation ("Tenant").
WITNESSETH:
A. Landlord's predecessor in title and Tenant entered into a certain
Office Lease (the "Original Lease") dated March 27, 1998, whereby Landlord's
predecessor in title leased to Tenant certain premises (the "Original Premises")
consisting of approximately 9,230 rentable square feet of office space located
on the first floor (known as Suite No. 100) of that certain building (the
"Building") known as 6400 Xxxxxx, located at 0000 Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx, for a five (5) year lease term to expire on March 31, 2003.
B. Landlord's predecessor in title and Tenant entered into a certain
First Amendment to
Office Lease (the "First Amendment") dated April 22, 1998,
whereby Landlord's predecessor in title leased to Tenant certain additional
premises (the "First Additional Space") consisting of 1,081 rentable square feet
of office space on the first floor (known as Suite 125) of the Building, for a
lease term to expire on March 31, 2003. The Original Lease, as amended by the
First Amendment, is hereinafter called the "Lease". The Original Premises and
the First Additional Space is hereinafter called the "Existing Premises".
C. Landlord acquired title to the aforesaid building and succeeded to
the interest of the landlord under the Lease.
D. Landlord and Tenant desire to amend the Lease to reflect the lease
by Landlord to Tenant of certain additional space in the Building, as set forth
below.
NOW, THEREFORE, in consideration of the foregoing preambles and the mutual
covenants and agreements herein and in the Lease contained, it is hereby agreed
as follows:
1. DEFINED TERMS. Each capitalized term used as a defined term in this
Amendment but not otherwise defined herein shall have the same meaning as is
ascribed to such capitalized term in the Lease.
2. SECOND ADDITIONAL SPACE. Landlord leases to Tenant and Tenant
leases from Landlord those certain premises consisting of approximately 4,817
rentable square feet of office space and known as Suite 320 (the "Second
Additional Space") located on the third floor of the Building, as shown on the
plan attached hereto as Exhibit "A". The Second Additional Space is leased to
Tenant subject to all of the same terms and provisions as are contained in the
Lease, except as otherwise set forth herein. The Second Additional Space is
leased for a lease term commencing on April 1, 1999 (the "Second Additional
Space Commencement Date") and expiring on March 31, 2003, unless sooner
terminated as provided in the Lease and subject to renewal as is provided in
Paragraph 6 below. The Second Additional Space Commencement Date is subject to
extension as is provided in Paragraph 5(b) of Exhibit B attached hereto. From
and after the Second Additional Space Commencement Date, the term "Premises", as
used and defined in the Lease, as amended hereby, shall be deemed to mean and
refer to the Existing Premises plus the Second Additional Space. There shall be
no moving allowance payable for or in respect to the Second Additional Space.
3. BASE RENT.
(a) Commencing as of the Second Additional Space Commencement Date,
Tenant shall pay Base Rent for the Second Additional Space in the following
amounts for the following periods:
SECOND ADDITIONAL SPACE (4.817 RSF)
RATE OF ANNUAL
RENT PER RENTABLE RATE OF ANNUAL RATE OF MONTHLY
PERIOD SQUARE FOOT BASE RENT BASE RENT
------ ----------- --------- ---------
Second Additional Space Commencement
Date - 3/31/00 $ 13.00 $ 62,621.04 $ 5,218.42
4/01/00 - 3/31/01 13.50 65,029.56 5,419.13
4/01/01 - 3/31/02 14.00 67,437.96 5,619.83
4/01/02 - 3/31/03 14.50 69,846.48 5,820.54
Base Rent for the Existing Premises shall not be affected by this Amendment.
(b) Tenant shall remain obligated to pay Rent Adjustment for the balance
of the Lease Term, as provided in the Lease, provided that effective as of the
Second Additional Space Commencement Date, Tenant's Percentage Share set forth
in Section 1.08 of the Original Lease shall be changed from "6.21%" to "9.113%".
4. CONDITION OF PREMISES. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Second Additional Space, the Existing Premises or
the Building (or to provide Tenant with any credit or allowance for the same),
and no representation regarding the condition of the Second Additional Space,
the Existing Premises or the Building, have been made by or on behalf of
Landlord or relied upon by Tenant, except as set forth in the Work Letter
Agreement attached hereto as Exhibit B.
5. BROKER. Tenant represents and warrants to Landlord that except for
Prime Group Realty Services, Inc. ("Prime"), Tenant has not dealt with any real
estate broker, salesperson or finder in connection with this Amendment, and no
such person initiated or participated in the negotiation of this Amendment.
Tenant hereby agrees to indemnify and hold Landlord harmless from and against
any and all liabilities and claims for commissions and fees arising out of a
breach of the foregoing representation. Landlord shall be responsible for the
payment of any commissions or fees due to Prime.
6. RENEWAL OPTION. The Renewal Option set forth in Article 28 of the
Original Lease shall be applicable to the Second Additional Space, which shall
be part of the Premises demised under the Lease for purposes of such Article 28.
7. CONFLICT. In the event of any conflict between the terms or provisions
of the Lease and the terms or provisions of this Amendment, the terms and
provisions of this Amendment shall govern and control.
8. EFFECT OF AMENDMENT. As amended by this Amendment, the Lease shall
remain in full force and effect.
9. SUBMISSION. Submission of this Amendment by Landlord or its agent
to Tenant or its agent or representative, for examination and/or execution shall
not constitute a reservation of or option for the Second Additional Space or in
any manner bind Landlord and no obligation on Landlord shall arise under this
Amendment unless and until this Amendment is fully signed and delivered by
Landlord and Tenant; provided, however, the execution and delivery by Tenant of
this Amendment to Landlord, or its agent or representative, shall constitute an
irrevocable offer by Tenant to enter into the transactions described herein,
which offer may not be revoked by Tenant for fifteen (15) business days after
such delivery.
2
10. CONDITION TO EFFECTIVENESS OF AMENDMENT. This Amendment is subject to
and conditioned upon Landlord and National Insurance Crime Bureau, an Illinois
non-for-profit corporation ("NICB"), the existing tenant of the Second
Additional Space, entering into a lease termination agreement (the "NICB
Agreement") on terms and conditions acceptable to Landlord, whereby the lease
term of the lease of NICB for the Second Additional Space is terminated
effective as of March 31, 1999. If the NICB Agreement is not fully executed on
or before March 31, 1999 for any reason whatsoever, then either party may
terminate this Amendment by giving a written notice of termination to the other
party at any time after March 31, 1999 but prior to the date (if any) upon which
the NICB Agreement is fully executed. If this Agreement is terminated under this
Paragraph 10, then neither party shall have any further rights or obligations
under this Amendment and the Lease shall continue in full force and effect with
respect to the Existing Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first written above.
TENANT: LANDLORD:
KANBAY INCORPORATED, an Illinois 0000 XXXXXX XXXXX, L.L.C., a Delaware
corporation limited liability company
By: PRIME GROUP REALTY, L.P., a
Delaware limited partnership, its
Managing Member
By: Authorized Party By: PRIME GROUP REALTY TRUST, a
---------------------------------- Maryland real estate
Title: VP & CFO investment trust, its Managing
------------------------------- General Partner
By:
--------------------------
Title:
-----------------------
By:
--------------------------
Title:
-----------------------
3
EXHIBIT 'A'
[GRAPHIC] FLOOR PLAN OF PREMISES
ALLOWANCE
EXHIBIT B
WORK LETTER AGREEMENT
March 15, 1999
TO: Kanbay, Incorporated
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
RE: SUITE NO. 320 LOCATED AT 0000 XXXXXX XXXXX, XXXXXXXX, XXXXXXXX
Ladies and Gentlemen:
Simultaneously with the execution of this Work Letter Agreement, you
("Tenant") and 0000 XXXXXX XXXXX, L.L.C., a Delaware limited liability company
("Landlord") are entering into a Second Amendment to Office Lease (the
"Amendment") pertaining to the space referred to above (the "Second Additional
Space"). Each capitalized term used as a defined term in this Work Letter
Agreement but not otherwise defined herein shall have the same meaning as is
ascribed to such capitalized term on the Amendment.
In consideration of the covenants contained in this Work Letter Agreement
and in the Amendment, Landlord and Tenant agree as follows:
1. PLAN. Tenant desires Landlord to perform certain leasehold improvement
work (the "Work") in the Second Additional Space pursuant to a plan (the "Plan")
for the Work to be prepared by EDI Architecture, Ltd., (the "Architect"). Tenant
shall cause the Plan to be prepared by the Architect and submitted to Landlord
on or before March 22, 1999. The Work and the Plan shall be subject to approval
by Landlord and Tenant, but neither such approval by Landlord nor approval by
Landlord of the "Working Drawings" (as defined in Paragraph 2 below) nor
Landlord's recommendation of the Architect to Tenant, nor whether Landlord has
retained or used the Architect for other projects in the Building, shall (i)
constitute any warranty by Landlord to Tenant of the adequacy of the design for
Tenant's intended use of the Second Additional Space, or (ii) create any
liability or responsibility on the part of Landlord for compliance with
applicable statutes, ordinances, regulations, laws, codes and industry
standards, including, without limitation, any and all statutes, ordinances,
regulations, laws, codes and industry standards relating to handicap
discrimination (including, without limitation, the Americans with Disabilities
Act).
2. WORKING DRAWINGS. If necessary for the performance of the Work,
Tenant, at its expense, shall cause the Architect to prepare and deliver to
Landlord on or before March 31, 1999, full, final, complete and stamped
construction drawings (including, without limitation, architectural, mechanical
(HVAC), electrical, plumbing and fire/life safety drawings) (collectively the
"Working Drawings") based upon and consistent with the Plan, which Working
Drawings shall be in such form and detail as shall enable Landlord and its
contractors to obtain any necessary building permits for the Work and to perform
the Work. The Working Drawings shall be subject to the written approval of
Landlord. Landlord will give Tenant a written notice within fifteen (15)
business days after Landlord's receipt of the Working Drawings of either
Landlord's approval of same or the revisions thereto which Landlord requires
prior to approving the Working Drawings. If any revisions are so required,
Tenant shall cause the Architect to make such revisions and Tenant shall deliver
the revised Working Drawings to Landlord within five (5) days after the date
upon which Landlord gives Tenant Landlord's notice of required revisions. Tenant
shall approve the Working Drawings within three (3) days after receipt of same
from Landlord.
EXHIBIT B - Page 1
3. PERFORMANCE OF THE WORK. Except as hereinafter provided to the
contrary, Landlord shall perform the Work shown on the Plan and Working Drawings
using (except as may be stated or shown in the Plan or the Working Drawings)
building standard materials and quantities ("Building Standards"). Landlord
shall pay for a portion of the cost of the Work in an amount not to exceed $6.00
per rentable square foot of the Second Additional Space which is improved (the
"Allowance") and Tenant shall pay for any and all costs and expenses associated
with the Work (including, without limitation, such additional expenses which
result from any special work, materials, finishes or installations required by
Tenant, unforeseen field conditions, or from any delays in the Work occasioned
by Tenant) in excess of the Allowance. Tenant shall not be entitled to any
credit or payment from Landlord for any portion of the Allowance not utilized by
Tenant.
4. PAYMENT. Prior to commencing the Work, Landlord will submit to
Tenant a written statement of the cost of that portion of the Work to be paid
for by Tenant, which cost shall include Landlord's standard add-on charge for
Landlord's field supervision, administration and overhead. Tenant agrees, within
three (3) days after submission to it of such statement of cost, to execute and
deliver to Landlord, in the form then in use by Landlord, an authorization to
proceed with that portion of the Work to be paid for by Tenant, and Tenant shall
also then pay to Landlord the amount set forth in Landlord's statement. Delays
in the performance of the Work resulting from the failure of Tenant to comply
with the provisions of the preceding sentence shall be deemed to be delays
caused by Tenant. No Work shall be commenced until Tenant has fully complied
with the preceding portions of this Paragraph 4. If at any time or from time to
time during construction Landlord determines that the cost of the Work will
exceed the estimate, then Tenant shall immediately pay such increase to Landlord
and Landlord may stop performance of the Work until such increase is paid (and
any such work stoppage shall be deemed to be a delay caused by Tenant).
5. SUBSTANTIAL COMPLETION.
(a) Landlord shall use commercially reasonable efforts to cause the
Work to be "substantially completed" on or before the Second Additional
Space Commencement Date, subject to delays described in Section 27.04 of
the Original Lease and delays described in Paragraph 6 of this Work Letter
Agreement. The Work shall be considered "substantially completed" for all
purposes under this Work Letter Agreement and the Lease if and when
Landlord's architect issues a written certificate to Landlord and Tenant,
certifying that the Work has been completed (except for minor finish-out
and "punchlist" items) in substantial compliance with the Plan and, if
applicable, the Working Drawings, or when Tenant first takes occupancy of
the Second Additional Space, whichever first occurs. When Landlord is of
the opinion that the Work is substantially completed, then Landlord shall
so notify Tenant. Tenant agrees that upon such notification, Tenant will
promptly (and not later than three (3) days after the day of Landlord's
notice and in any event prior to Tenant moving its equipment and property
into the Second Additional Space) inspect the Second Additional Space and
execute Landlord's standard punch list ("Punch List") which shall identify
any uncompleted portions of the Work. Tenant agrees that at the request of
Landlord from time to time thereafter, Tenant shall promptly furnish to
Landlord a revised Punch List reflecting the completion of any prior Punch
List items. It is mutually agreed that if the Punch List or any revised
Punch List consist only of items the non-completion of which would not
materially impair Tenant's use or occupancy of the Second Additional Space
or the Work is otherwise substantially completed, then, in such event, the
Second Additional Space shall be deemed to be complete and Tenant will
acknowledge in writing that the Second Additional Space are complete and
accept possession of the Second Additional Space. If Tenant fails to
conduct such inspection or execute the Punch List, Landlord is authorized
to complete and sign the Punch List on behalf of Tenant, which as so
completed shall be binding upon Tenant.
(b) If the Work is not substantially completed on or before the
Second Additional Space Commencement Date by reason of any delay (other
than a delay specified in Paragraph 6 below), the Amendment shall remain in
effect, Landlord shall have no liability to Tenant as a result of any delay
in occupancy, the Second Additional Space Commencement Date shall be
extended (subject to Paragraph 6 below) to the date on which the Work is
substantially completed but the expiration date of the lease term for the
Second Additional Space shall not be extended.
EXHIBIT B - Page 2
6. TENANT DELAYS. There shall be no extension of the Second Additional
Space Commencement Date (as permissibly extended under Paragraph 5 above) if the
Work has not been substantially completed on said date by reason of any delay
attributable to Tenant, including without limitation:
(a) the failure of Tenant to furnish the Plan required under
Paragraph 1 above on or before the date stated in Paragraph 1 or the
failure of Tenant to furnish the Working Drawings required under Paragraph
2 above on or before the date stated in Paragraph 2;
(b) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(c) Tenant's requirements for special work or materials, finishes,
or installations other than the Building Standards;
(d) the performance of any other work in the Second Additional
Space by any person, firm or corporation employed by or on behalf of
Tenant, or any failure to complete or delay in completion of such work;
(e) any other act or omission of Tenant.
7. ADDITIONAL WORK. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work specified in the Plan and Working
Drawings (the "Additional Work"), Landlord may, at its election, perform the
Additional Work, at Tenant's sole cost and expense. Prior to commencing any
Additional Work requested by Tenant, Landlord shall submit to Tenant a written
statement of the cost of such Additional Work which cost shall include
Landlord's standard add-on charge for Landlord's field supervision,
administration and overhead and a proposed Tenant Extra Order (the "TEO") for
Additional Work in the standard form then in use by Landlord. If Tenant shall
fail to enter into said TEO within one (1) week after Tenant's receipt thereof,
Landlord shall proceed to do only the Work specified in the Plan and Working
Drawings. Tenant agrees to pay to Landlord, concurrently with its execution of
the TEO, the entire cost of the Additional Work as shown in the statement
delivered by Landlord.
8. TENANT ACCESS. Landlord, in Landlord's discretion and upon request
by Tenant, may grant to Tenant and Tenant's agents a license to enter the Second
Additional Space prior to the Second Additional Space Commencement Date in order
that Tenant may do other work required by Tenant to make the Second Additional
Space ready for Tenant's use and occupancy. It shall be a condition to the grant
by Landlord and continued effectiveness of such license that:
(a) Tenant shall give to Landlord not less than five (5) days' prior
written notice of its request to have such access to the Second Additional
Space, which notice shall contain and/or shall be accompanied by: (i) a
description of and schedule for the work to be performed by those persons
and entities for whom and which such access is being requested; (ii) the
names and addresses of all contractors, subcontractors and material
suppliers for whom and which such early access is being requested and the
approximate number of individuals, itemized by trade, who will be present
in the Second Additional Space; (iii) copies of all contracts pertaining to
the performance of the work for which such early access is being requested;
(iv) copies of all plans and specifications pertaining to the work for
which such access is being requested; (v) copies of all licenses and
permits required in connection with the performance of the work for which
such access is being requested; (vi) certificates of insurance (in amounts
and with insured parties satisfactory to Landlord) and instruments of
indemnification against all claims, costs, expenses, damages and
liabilities which may arise in connection with such work; and (vii)
assurances of the availability of funds sufficient to pay for all such
work. All of the foregoing shall be subject to Landlord's approval, which
shall not be unreasonably withheld.
(b) Such early access shall be subject to scheduling by Landlord.
(c) Tenant's agents, contractors, workmen, mechanics, suppliers and
invitees shall work in
EXHIBIT B - Page 3
harmony and not interfere with Landlord and Landlord's agents in performing
the Work and any Additional Work in the Second Additional Space, Landlord's
work in other premises and in common areas of the Building, or the general
operation of the Building. If at any time such entry shall cause or
threaten to cause such disharmony or interference, including labor
disharmony, Landlord may withdraw such license upon twenty-four (24) hours'
prior written notice to Tenant.
Any such entry into and occupation of the Second Additional Space by
Tenant shall be deemed to be under all of the terms, covenants, conditions
and provisions of the Amendment and the Lease, excluding only the covenant
to pay Rent and specifically including the provisions of Articles IX and X
of the Original Lease. Landlord shall not be liable for any injury, loss or
damage which may occur to any of Tenant's work or installations made in the
Second Additional Space or to property placed therein prior to the Second
Additional Space Commencement Date, the same being at Tenant's sole risk
and liability. Tenant shall be liable to Landlord for any damage to the
Second Additional Space or to any portion of the Work caused by Tenant or
any of Tenant's employees, agents, contractors, workmen or suppliers. In
the event the performance of the work by Tenant, its agents, employees or
contractors causes extra costs to Landlord or requires the use of elevators
during hours other than 8:00 a.m. to 4:30 p.m. on Monday through Friday
(except holidays), Tenant shall reimburse Landlord for the entire extra
cost and the cost incurred by Landlord for the engineers or operators under
applicable union regulations or contracts.
9. ENTIRE AGREEMENT. The terms and provisions of the Amendment and the
Lease, insofar as they are applicable to this Work Letter Agreement, are hereby
incorporated herein by reference.
10. LANDLORD'S REMEDIES. All amounts payable by Tenant to Landlord
hereunder shall be deemed to be Rent under the Lease and upon any default in the
payment of same, Landlord shall have all of the rights and remedies provided for
in the Lease. The occurrence of a default by Tenant under this Work Letter
Agreement shall be deemed a default by Tenant under the Lease, entitling
Landlord to all of the rights and remedies provided for in the Lease (including
acceleration of rent), at law or in equity.
EXHIBIT B - Page 4
10. CONDITION TO EFFECTIVENESS OF AMENDMENT. This Amendment is subject to
and conditioned upon Landlord and National Insurance Crime Bureau, an Illinois
not-for-profit corporation ("NICB"), the existing tenant of the Second
Additional Space, entering into a lease termination agreement (the "NICB
Agreement") on terms and conditions acceptable to Landlord, whereby the lease
term of the lease of NICB for the Second Additional Space is terminated
effective as of March 31, 1999. If the NICB Agreement is not fully executed on
or before March 31, 1999 for any reason whatsoever, then either party may
terminate this Amendment by giving a written notice of termination to the other
party at any time after March 31, 1999 but prior to the date (if any) upon which
the NICB Agreement is fully executed. If this Amendment is terminated under this
Paragraph 10, then neither party shall have any further rights or obligations
under this Amendment and the Lease shall continue in full force and effect with
respect to the Existing Premises.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first written above.
TENANT: LANDLORD:
KANBAY INCORPORATED, an Illinois 0000 XXXXXX XXXXX, L.L.C., a Delaware limited
corporation liability company
By: PRIME GROUP REALTY, L.P., a Delaware
limited partnership, its Managing Member
By: /s/ Authorized Party
-----------------------------
Title: V.P. & CFO By: PRIME GROUP REALTY TRUST, a
-------------------------- Maryland real estate investment
trust, its Managing General Partner
By: /s/ Authorized Party
----------------------------------
Title: Authorized Party
-------------------------------
By: /s/ Authorized Party
----------------------------------
Title: Authorized Party
-------------------------------
3
FIRST AMENDMENT TO OFFICE LEASE
THIS FIRST AMENDMENT TO OFFICE LEASE ("First Amendment") is made this 22nd
day of April, 1998, by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, not personally but solely as Trustee under Trust No. 66078
("Landlord"), and KANBAY, INCORPORATED, an Illinois corporation ("Tenant").
W I T N E S E T H:
A. Landlord and Tenant entered into a certain Office Lease (the "Lease")
dated March 27, 1998, whereby Landlord leased to Tenant certain premises (the
"Original Premises") consisting of approximately 9,230 rentable square feet
located on the first floor (known as Suite No. 100) of that certain building
(the "Building") known as 6400 Xxxxxxx, located at 0000 Xxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx, for a five (5) year lease term scheduled to commence on April 1, 1998.
B. Landlord and Tenant desire to amend the Lease to reflect the lease by
Landlord to Tenant of certain additional space, as set forth below.
NOW, THEREFORE, in consideration of the foregoing preambles and the mutual
covenants and agreements herein and in the Lease contained, it is hereby agreed
as follows:
1. DEFINED TERMS. Each capitalized term used as a defined term in this
Amendment but not otherwise defined herein shall have the same meaning ascribed
to such term in the Lease.
2. ADDITIONAL SPACE. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord certain premises contiguous to the Original Premises
consisting of approximately 1,081 rentable square feet and known as Suite 125
(the "Additional Space"), as shown on the plan attached hereto as Exhibit "A".
The Additional Space is leased to Tenant subject to all of the same terms and
provisions as are contained in the Lease, except as otherwise set forth herein.
The Additional Space is leased for a lease term commencing on August 1, 1998
(the "Additional Space Commencement Date") and expiring on March 31, 2003 (or
such other date, if any, on which the Lease Term for the Original Premises
expires). From and after the Additional Space Commencement Date, the term
"Premises", as used and defined in the Lease, as amended hereby, shall be deemed
to mean and refer to the Original Premises plus the Additional Space. There
shall be no moving allowance payable for or in respect to the Additional Space.
3. BASE RENT.
A. Commencing as of the Additional Space Commencement Date, Base
Rent for the Additional Space shall be as follows:
RATE OF ANNUAL
RENT PER RENTABLE RATE OF ANNUAL RATE OF MONTHLY
PERIOD SQUARE FOOT BASE RENT BASE RENT
------ ----------- --------- ---------
Additional Space Commencement Date
- 3/31/99 $ 12.50 $ 13,512.48 $ 1,126.04
4/01/99 - 3/31/00 $ 13.00 14,052.96 1,171.08
4/01/00 - 3/31/01 $ 13.50 14,593.56 1,216.13
4/01/01 - 3/31/02 $ 14.00 15,134.04 1,261.17
4/01/02 - 3/31/03 $ 14.50 15,674.52 1,306.21
Base Rent for the Original Premises shall not be affected by this Amendment.
B. Tenant shall remain obligated to pay Rent Adjustment for the balance
of the Lease Term, as provided in the Lease, provided that effective as of the
Additional Space Commencement Date, Tenant's Percentage Share set forth in
Section 1.08 of the Lease shall be changed from "5.56%" to "6.21%."
4. CONDITION OF PREMISES. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Additional Space, the Original Premises or the
Building (or to provide Tenant with any credit or allowance for the same), and
no representation regarding the condition of the Additional Space, the Original
Premises or the Building, have been made by or on behalf of Landlord or relied
upon by Tenant, except that Landlord has agreed to make available to Tenant on
the terms and conditions set forth in the Work Letter Agreement attached to the
Original Lease as Exhibit B (the "Work Letter") an additional allowance (the
"Additional Allowance") of $10,810 (such amount being $10.00 per rentable square
feet of the Additional Space) to be used for the purposes for which the
Allowance may be used as provided for in the Work Letter. Fifty percent (50%) of
the Additional Allowance (i.e. - $5,405) shall be available to Tenant upon the
full execution and delivery of this First Amendment (and satisfaction of the
conditions set forth in the Work Letter) and the balance of the Additional
Allowance (i.e. - $5,405) shall be available to Tenant during the twelfth
(12th) month of the Lease Term for the Additional Space. The cost of
architectural and M.E.P. working drawings shall be paid from the Additional
Allowance.
5. BROKER. Tenant represents and warrants to Landlord that except for
Xxxxxxx Properties Ltd. ("Xxxxxxx") and Xxxxxx X. Xxxxxxx, Inc. ("Xxxxxxx"),
Tenant has not dealt with any real estate broker, salesperson or finder in
connection with this Amendment, and no such person initiated or participated in
the negotiation of this Amendment. Tenant hereby agrees to indemnify and hold
harmless Landlord and Xxxxxxx from and against any and all liabilities and
claims for commissions and fees arising out of a breach of the foregoing
representation. Landlord shall be responsible for the payment of any commissions
or fees due to Xxxxxxx and Xxxxxxx based upon separate agreements with Xxxxxxx
and Xxxxxxx, respectively.
6. RENEWAL OPTION. The Renewal Option set forth in Article 28 of the
Original Lease shall be applicable to the Additional Space, which shall be part
of the Premises demised under the Lease for purposes of such Article 28.
7. CONFLICT. In the event of any conflict between the terms or provisions
of the Lease and the terms or provisions of this Amendment, the terms and
provisions of this Amendment shall govern and control.
8. EFFECT OF AMENDMENT. As amended by this Amendment, the Lease shall
remain in full force and effect.
9. SUBMISSION. Submission of this Amendment by Landlord or Landlord's
beneficiary or agent to Tenant or its agent or representative, for examination
and/or execution shall not constitute a reservation of or option for the
Premises or in any manner bind Landlord and no obligation on Landlord shall
arise under this Amendment unless and until this Amendment is fully signed and
delivered by Landlord and Tenant; provided, however, the execution and delivery
by Tenant of this Amendment to Landlord or Landlord's beneficiary, or its agent
or representative, shall constitute an irrevocable offer by Tenant to enter into
the transactions described herein, which offer may not be revoked by Tenant for
fifteen (15) business days after such delivery.
10. LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in the Lease, as amended hereby, or in any exhibits, Riders
or addenda hereto attached (collectively, the "Lease Documents"), it is
expressly understood and agreed by and between the parties hereto that: (a) the
recourse of Tenant or its successors or assigns against Landlord with respect to
the alleged breach by or on the part of Landlord of any representation,
warranty, covenant, undertaking or agreement contained in any of the Lease
Documents or otherwise arising out of Tenant's use of the Premises or the
Building (collectively, "Landlord's Lease Undertakings") shall extend only to
Landlord's interest in the real estate of which the Premises demised under the
Lease Documents are a part ("Landlord's Real Estate") and not to any other
assets of Landlord or its beneficiaries; and (b) except to the extent of
Landlord's interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Landlord, Xxxxxxx Capital Management Corporation or Xxxxxxx
Properties Ltd., or against any of their respective directors, officers,
employees, agents, constituent partners, beneficiaries, trustees or
representatives.
2
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made
on the part of Landlord while in form purporting to be the representations,
warranties, covenants, undertakings and agreements of Landlord are nevertheless
each and every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in the Building,
the Land and the Premises to the terms of the Lease, as amended hereby, and for
no other purpose whatsoever, and in case of default hereunder by Landlord (or
default through, under or by any of its beneficiaries, or agents or
representatives or said beneficiaries), the Tenant shall look solely to the
interests of Landlord in the Building and the Land; that this Amendment is
executed and delivered by Landlord not in its own right, but solely in the
exercise of the powers conferred upon it as such Trustee; that neither the
Landlord not any of Landlord's beneficiaries shall have any personal liability
to pay any indebtedness accruing hereunder or to perform any covenant, either
express or implied, herein contained, and no liability or duty shall rest upon
Landlord to sequester the trust estate or the rents, issues and profits arising
therefrom, or the proceeds arising from any sale or other disposition thereof;
and that no personal liability or personal responsibility of any sort is assumed
by, nor shall at any time be asserted or enforceable against, said Landlord,
American National Bank and Trust Company of Chicago, a national banking
association, individually or personally, but only as Trustee under the
provisions of a Trust Agreement known as its Trust No. 107101-01, or against any
of the beneficiaries under said Trust Agreement, or their respective agents, on
account of the Lease, as amended hereby, or on account of any representation,
warranty, covenant, undertaking or agreement of Landlord contained in the Lease,
as amended hereby, either express or implied, all such personal liability, if
any, being expressly waived and released by Tenant and by all persons claiming
by, through or under Tenant.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first written above.
TENANT: LANDLORD:
KANBAY INCORPORATED, an Illinois AMERICAN NATIONAL BANK AND
corporation TRUST COMPANY OF CHICAGO, not
personally but solely as Trustee as aforesaid
By: /s/ Authorized Party By: /s/ Authorized Party
----------------------------- -----------------------------
Title: Vice President & CFO Title: Authorized Officer
-------------------------- --------------------------
This instrument is executed by the undersigned
Land Trustee, not personally but solely as Trustee
in the exercise of the power and authority
conferred upon and vested in it as such Trustee.
It is expressly understood and agreed that all the
warranties, indemnities, representations,
covenants, under-takings and agreements herein
made on the part of the Trustee are undertaken by
it solely in its capacity as Trustee and not
personally. No personal liability or personal
responsibility is assumed by or shall at any time
be asserted or enforceable against the Trustee on
account of any warranty, Indemnity,
representation, covenant, undertaking or agreement
of the Trustee in this instrument.
3
EXHIBIT "A"
PLAN OF THE ADDITIONAL SPACE
[GRAPHIC]
THIRD AMENDMENT TO OFFICE LEASE
THIS THIRD AMENDMENT TO OFFICE LEASE (this "Amendment") is made this
22ND day of March, 2002, by and between 0000 XXXXXX XXXXX, L.L.C., a Delaware
limited liability company ("Landlord") and KANBAY, INCORPORATED, an Illinois
corporation ("Tenant").
WITNESSETH:
A. Landlord's predecessor in title and Tenant entered into a certain
Office Lease (the "Original Lease") dated March 27, 1998, whereby Landlord's
predecessor in title leased to Tenant certain premises (the "Original Premises")
consisting of approximately 9,230 rentable square feet of office space located
on the first floor (known as Suite No. 100) of that certain building (the
"Building") located at 0000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, for a five (5)
year lease term (the "Lease Term") to expire on March 31, 2003.
B. Landlord's predecessor in title and Tenant entered into a certain
First Amendment to Office Lease (the "First Amendment") dated April 22, 1998,
whereby Landlord's predecessor in title leased to Tenant certain additional
premises (the "First Additional Space") consisting of 1,081 rentable square feet
of office space on the first floor (known as Suite 125) of the Building, for the
balance of the Lease Term.
C. Landlord acquired title to the aforesaid building and succeeded to the
interest of the landlord under the Original Lease, as amended.
D. Landlord and Tenant entered into a certain Second Amendment to Office
Lease (the "Second Amendment") dated March 15, 1999, whereby Landlord leased to
Tenant certain additional premises (the "Second Additional Space") consisting of
4,817 rentable square feet of office space on the third floor (Suite 320) of the
Building, for the balance of the Lease Term. The Original Lease, as amended by
the First Amendment and the Second Amendment, is hereinafter called the "Lease".
The Original Premises, the First Additional Space and the Second Additional
Space is hereinafter called the "Premises".
E. Landlord and Tenant desire to amend the Lease to extend the Lease Term
of the Lease, upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing preambles and the
mutual covenants and agreements herein and in the Lease contained, it is hereby
agreed as follows:
1. DEFINED TERMS. Each capitalized term used as a defined term in this
Amendment but not otherwise defined herein shall have the same meaning as is
ascribed to such capitalized term in the Lease.
2. EXTENSION OF LEASE TERM. The Expiration Date of the Lease Term is
extended by five (5) years from March 31, 2003 to March 31, 2008. As used herein
and in the Lease, the "Lease Term" shall mean the initial lease term as extended
to March 31, 2008. All of the terms and provisions of the Lease shall apply with
respect to that part of the Lease Term occurring after March 31, 2003 (the
"Extended Term"), except as otherwise provided herein.
3. BASE RENT. During the Extended Term, Base Rent for the Premises shall
be payable in the following amounts for the following periods:
PREMISES (15,128 RSF)
Period of Annual Base
Extended Term Annual Base Rent Monthly Base Rent Rent Per RSF
------------- ---------------- ----------------- ------------
4/1/03 - 3/31/04 $ 226,920.00 $ 18,910.00 $ 15.00
4/1/04 - 3/31/05 $ 234,484.00 $ 19,540.33 15.50
4/1/05 - 3/31/06 $ 242,048.00 $ 20,170.67 16.00
4/1/06 - 3/31/07 $ 249,612.00 $ 20,801.00 16.50
4/1/07 - 3/31/08 $ 257,176.00 $ 21,431.33 17.00
There shall be no abatement of Base Rent by reason of this Amendment.
4. RENT ADJUSTMENTS. During the Extended Term, Tenant shall remain
obligated to pay Rent Adjustments as provided in Article 4 of the Original
Lease. There shall be no abatement of Rent Adjustments by reason of this
Amendment.
5. CONDITION OF PREMISES. No agreement of Landlord to alter, remodel,
decorate, clean or improve the Premises or the Building, and no representation
regarding the condition of the Premises or the Building, have been made by or on
behalf of Landlord or relied upon by Tenant, except (i) as provided in Section 6
below, and (ii) Landlord shall replace the two (2) existing air-conditioning
condensers serving the Premises no later than July 1, 2002.
6. REMODELING ALLOWANCE. Provided that Tenant is not in default (after
the expiration of any applicable notice and cure period) under the Lease, as
amended hereby, Landlord agrees to provide Tenant with a remodeling allowance
(the "Allowance") of $204,228.00 (i.e., $13.50 per rentable square foot of the
Premises). The Allowance shall be paid to Tenant for the hard and soft costs of
leasehold improvements to the Premises, including the costs of architectural and
space planning fees related thereto, incurred or contracted for by Tenant at any
time after the date of this Amendment and prior to December 31, 2003. The
Allowance shall be paid to Tenant within thirty (30) days after Landlord's
receipt of a written request from Tenant therefor, which notice (except with
respect to the Cash Portion [defined below]) must be accompanied by invoices or
receipts evidencing the costs for which Tenant seeks reimbursement, together
with (i) lien waivers with respect to any such improvements and, (ii) with
respect to such services, evidence reasonably satisfactory to Landlord showing
such services have been contracted for and performed. Tenant shall have no
further rights with respect to any unused portion of the Allowance (except for
the Cash Portion) which is not properly drawn by December 31,2003, which unused
portion (except for the Cash Portion) shall be deemed waived by Tenant.
Notwithstanding the foregoing to the contrary, provided that Tenant is not in
default (after the expiration of any applicable notice and cure period) under
the Lease, as amended hereby, Landlord shall provide Tenant with $75,640.00 of
the Allowance (i.e., $5.00 per rentable square foot of the Premises) in the form
of a cash payment (the "Cash Portion"), without any required improvement work,
documentation or other requirement, within thirty (30) days after the complete
execution and delivery of this Amendment. All work performed in the Premises by
Tenant shall be performed strictly in accordance with the provisions of Article
9 of this Original Lease.
7. PARKING SPACES. During the balance of the Lease Term, as extended
hereby, Tenant will have the right to use no more than two (2) indoor parking
spaces at the Building (subject to Section 11 below) at Landlord's prevailing
rates which are currently $125.00 per month per parking space and which are
subject to change at any time and from time to time. Use of such spaces will be
upon the terms and conditions of Landlord's standard Indoor Parking Space Permit
Contract, and Tenant and the user of each such space shall enter into such
Indoor Parking Space Permit Contract prior to using such spaces. Tenant
currently uses one of two such spaces pursuant to the existing Indoor Parking
Space Permit Contract dated December 5, 2001 between Landlord, Tenant and
Xxxxxxx Xxxxxxx, as user, which shall be modified or replaced with a new Indoor
Parking Space Permit Contract to reflect the current monthly fee of $125.00 and
an expiration date of March 31, 2008.
2
8. SIGNAGE. Notwithstanding anything to the contrary in the Lease, for so
long as the Lease, as amended hereby, is in full force and effect and Tenant is
not in default under the Lease, as amended hereby, and subject to all applicable
codes and ordinances, Tenant shall have the following signage rights:
(a) Landlord shall, at Tenant's cost, add Tenant's name to the
existing monument sign in front of the Building (the "Monument Sign"). The
Monument Sign shall be consistent with Landlord's current monument signage
standards for the Building, as determined by Landlord, in its reasonable
discretion; and
(b) So long as Tenant continues to lease no less than 15,128 rentable
square feet in the Building and provided Tenant does not exercise its partial
termination right under Section 11 of this Amendment, and subject the prior
rights of other existing and future tenants of the Building as described below,
Tenant, at its expense (but using contractors designated by Landlord), may have
the right, upon the terms and conditions set forth below, to install and
maintain one (1) wall-hung tenant identification facade sign on the exterior of
the Building ("Facade Sign"), provided Landlord shall charge Tenant a reasonable
monthly Facade Sign fee determined by Landlord in its sole discretion for so
long as such Facade Sign is maintained on the Building. Notwithstanding anything
to the contrary herein, Tenant's right to install and maintain the Facade Sign
shall be subject to the following rights, obligations and priorities: Upon the
date (the "Lease-Up Date") which is the earlier to occur of (a) the next date
upon which no more than 15,127 rentable square feet of space in the Building in
the aggregate is available for leasing (which space may be non-contiguous so
long as it may reasonably be leased to a single tenant), and (b) the date upon
which Landlord completes it's leasing of all of the rentable area on the fourth
floor of the Building, and if the future tenant(s) of the fourth floor of the
Building are not granted the right to install and maintain a Facade Sign, then
Landlord shall, within six (6) months after the Lease-Up Date, offer to each
then existing tenant leasing rentable area in the Building equal to or greater
than that of Tenant (in successive order from largest to smallest rentable area,
until accepted) the right to install and maintain a Facade Sign; such that only
if the future tenant(s) of the fourth floor of the Building and all other
tenants of the Building leasing more space than Tenant waive the right to
install and maintain the Facade Sign will Tenant be granted the right to install
and maintain the Facade Sign. This provision is strictly for the benefit of
Tenant and there are no intended third party beneficiaries hereof.
Tenant's signage rights herein granted are non-exclusive right in common
with other tenants of the Building. Tenant agrees to obtain, at Tenant's
expense, all necessary governmental licenses and permits to install, operate and
maintain the Facade Sign, if any. For purposes hereof, the Monument Sign and the
Facade Sign, if any, are collectively referred to herein as the "Signs". The
location, size, material and graphics of all Signs shall be subject to
Landlord's prior written approval. Tenant shall pay all costs and expenses
associated with the fabrication, installation, modification, maintenance and
removal of the Signs. Tenant agrees to indemnify, defend and hold harmless
Landlord, its agents and employees from all claims, liabilities, damages and
expenses (including attorneys' fees) asserted against or incurred by any of said
parties and arising from or by reason of the design, fabrication, installation,
modification, maintenance or removal of the Signs. Upon the expiration or
termination of the Lease Term or Tenant's right to maintain either of the Signs,
Tenant, at its expense, shall remove such Signs, and shall repair and restore
any damage caused by such removal.
9. RIGHT OF FIRST REFUSAL.
(a) OPTION SPACE. For purposes of this Amendment, "Option Space"
shall mean as of any date, that certain space located on the 1st floor of the
Building and containing approximately 3,538 square feet of rentable area (Suite
175), as shown on EXHIBIT A attached hereto, less such portions of said space,
if any, which are leased by Tenant as of such date.
(b) RIGHT OF FIRST REFUSAL. With respect to any lease which Landlord
hereafter intends to enter into with a third-party tenant for either (i) all or
any portion of the Option Space, or (ii) the space described in clause (i) above
plus any other space in the Building (for purposes hereof, any such other space
shall be deemed to be part of the Option Space) and which has a lease term
commencing at any time prior to April 1, 2005 (but excluding any new or renewal
lease or lease expansion with any then existing tenant of all or any portion of
the Option Space), Landlord shall give Tenant written notice of such intent
("Landlord's Notice") prior to Landlord entering into such lease. The Landlord's
Notice shall specify (i) the location and rentable area of the portion of the
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Option Space which Landlord intends to lease (which is hereinafter referred to
as the "Actual Option Space"), (ii) the proposed lease term for the Actual
Option Space, (iii) the date upon which the Actual Option Space shall be
available for occupancy, (iv) the annual rate of base rent per square foot of
rentable area which Landlord intends to charge for the Actual Option Space, (v)
the amount of all rent adjustments which Landlord intends to charge for the
Actual Option Space, including, without limitation, fixed and/or indexed rent
adjustments and rent adjustments for operating expenses and real estate taxes
for the Building, and (vi) the tenant concessions (e.g., rent abatements and
tenant improvement allowances), if any, which Landlord would be willing to
provide to lease the Actual Option Space; it being agreed that items (iv)
through (vi) above shall be quoted by Landlord in Landlord's Notice for a
hypothetical lease having a lease term which would expire on the Expiration Date
of the Lease Term. Tenant shall thereupon have a right (the "Right of First
Refusal") to lease all, but not less than all, of the Actual Option Space,
subject to the following terms and conditions:
(i) Tenant gives Landlord a written notice of its election to
exercise the Right of First Refusal within ten (10) days after Landlord gives
Tenant Landlord's Notice for such Right of First Refusal;
(ii) Tenant submits current audited financial statements of
Tenant to Landlord concurrently with Tenant's Notice exercising the Right of
First Refusal and such financial statements are approved in writing by Landlord;
and
(iii) Tenant is not in default under the Lease, as amended
hereby, on the date Tenant exercises such Right of First Refusal and, unless
waived in writing by Landlord, Tenant is not in default under the Lease, as
amended hereby, on the proposed commencement date of the lease term for the
Actual Option Space.
In the event that Tenant does not timely or properly exercise any
Right of First Refusal, Landlord may at any time thereafter lease the Actual
Option Space to any third-party tenant on such terms and provisions as Landlord
may elect, without any further rights of Tenant to lease such space, until
Landlord fails to consummate a lease for such space within the six (6) month
period thereafter or such third-party has vacated the Actual Option Space and
such space is again available for leasing by a third-party.
(c) TERMS. If Tenant exercises a Right of First Refusal, the
following terms and provisions shall apply:
(i) Landlord shall lease the Actual Option Space to Tenant for a
lease term commencing on the availability date specified in the applicable
Landlord's Notice and expiring on the Expiration Date of the Lease Term;
(ii) The base rent and rent adjustments payable for the Actual
Option Space shall be as set forth in the applicable Landlord's Notice; For
purposes of paying such rent adjustments, Tenant's Percentage Share shall be
increased effective as of the commencement date of the lease term for the Actual
Option Space by the percentage determined by dividing the rentable area of the
Actual Option Space by the rentable area of the Building;
(iii) Tenant shall not be entitled to any rental abatement for
the Actual Option Space except as otherwise set forth in the applicable
Landlord's Notice;
(iv) Tenant shall accept the Actual Option Space in an "as-is",
"where-is" physical condition from Landlord, without any agreement,
representation, credit or allowance from Landlord with respect to the
improvement or condition thereof except as otherwise set forth in the applicable
Landlord's Notice; and
(v) All of the terms and provisions of the Lease, as amended
hereby, shall apply with respect to the Actual Option Space, except as otherwise
provided in this Section 9 or except as same may be inconsistent with the
provisions of this Section 9.
(d) AMENDMENT. If Tenant exercises a Right of First Refusal, Landlord
and Tenant shall execute and deliver an amendment to the Lease, as amended
hereby, reflecting the lease of the Actual Option Space
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by Landlord to Tenant on the terms herein provided, which amendment shall be
executed within thirty (30) days after Tenant exercises such Right of First
Refusal.
(e) TERMINATION. Each Right of First Refusal shall automatically
terminate and become null and void upon the earlier to occur of (1) the
expiration or termination of the Lease, as amended hereby, (2) the termination
by Landlord of Tenant's right to possession of the Premises, (3) the assignment
of the Lease, as amended hereby, by Tenant, in whole or in part, (4) the
sublease by Tenant of the Premises, or any part thereof, (5) the recapture by
Landlord of any space under Section 14.03 of the Original Lease, or (6) the
failure of Tenant to timely or properly exercise such Right of First Refusal.
10. RENEWAL OPTION.
(a) RENEWAL OPTION. Tenant shall have one option (the "Renewal
Option") to renew the Lease Term with respect to all (but not less than all) of
the Premises demised under the Lease, as amended hereby, as of the Expiration
Date of the Lease Term for one additional term (the "Renewal Term") of three (3)
years, commencing on the day immediately after the Expiration Date of the Lease
Term, subject to the following terms and conditions:
(i) Tenant gives Landlord written notice of its election to
exercise the Renewal Option not later than the date which is nine (9) months
prior to the Expiration Date of the Lease Term;
(ii) Tenant submits current audited financial statements of
Tenant to Landlord concurrently with Tenant's notice exercising the Renewal
Option and such financial statements are approved in writing by Landlord; and
(iii) Tenant is not in default under the Lease, as amended
hereby, on the date Tenant exercises the Renewal Option, and, unless waived in
writing by Landlord, Tenant is not in default under the Lease, as amended
hereby, on the Expiration Date of the Lease Term.
(b) TERMS. If Tenant exercises the Renewal Option:
(i) The Base Rent payable for the Renewal Term shall be at a
rate equal to the "market rate of base rent," but in no event shall the initial
annual rate of Base Rent per square foot of rentable area payable for the
Renewal Term be less than annual rate of Base Rent per square foot of rentable
area payable under the Lease, as amended hereby, as of the Expiration Date of
the Lease Term. For purposes of the preceding sentence, "market rate of base
rent" shall mean the total net rate of rent per rentable square foot (including
all fixed and/or indexed rental adjustments), as reasonably determined by
Landlord which Landlord is offering to third party tenants for net renewal
leases with 3-year lease terms commencing on or about the commencement date of
the Renewal Term for office space in the Building which is comparable to the
Premises in condition, area and improvement;
(ii) Tenant shall continue to pay Rent Adjustments as provided in
Article 4 of the Original Lease;
(iii) Tenant shall have no further options to renew the Lease
Term beyond the Expiration Date of the Renewal Term;
(iv) Tenant shall not be entitled to any rental abatement for the
Renewal Term; and
(v) Tenant shall accept the Premises on the commencement date of
the Renewal Term in an "as-is", "where-is" condition, without any
representation, credit or allowance from Landlord with respect to the condition
or improvement thereof.
Except as hereinabove provided, all of the terms and provisions of the
Lease, as amended hereby, shall apply to the Renewal Term.
5
(c) AMENDMENT. If Tenant exercises the Renewal Option, Landlord and
Tenant shall execute and deliver an amendment to the Lease, as amended hereby,
reflecting the lease of the Premises by Landlord to Tenant for the Renewal Term
on the terms provided above, which amendment shall be executed and delivered by
Tenant within 30 days after Tenant exercises the Renewal Option.
(d) TERMINATION. The Renewal Option shall automatically terminate and
become null and void upon the earlier to occur of (1) the expiration or
termination of the Lease, as amended hereby, (2) the termination of Tenant's
right to possession of the Premises, (3) the assignment of the Lease, as amended
hereby, by Tenant, in whole or in part, (4) the sublease by Tenant of the
Premises, or any portion thereof, (5) the recapture by Landlord of any space
under Section 14.03 of the Original Lease, or (6) the failure of Tenant to
timely or properly exercise the Renewal Option.
11. TENANT'S RIGHT TO EARLY XXXXXXXXXXX XXX XXXXX 000.
(a) PARTIAL EARLY TERMINATION RIGHT. Landlord and Tenant agree that
Tenant shall have the right, upon at least nine (9) months prior written notice
to Landlord (the "TERMINATION NOTICE"), to terminate the Lease, as amended
hereby, PRO TANTO, only with respect to the Second Additional Space (i.e., Suite
320) ("the "TERMINATION RIGHT") effective March 31, 2006 (the "TERMINATION
EFFECTIVE DATE"), provided that (i) no default (or situation which, with the
passage of time or the giving of notice or both, would constitute a default) on
the part of Tenant exists and is continuing at the time of the exercise of such
option and no default (or situation which, with the passage of time or the
giving of notice or both, would constitute a default) on the part of Tenant
exists and is continuing at the time of the Termination Effective Date, and (ii)
Tenant pays to Landlord a termination fee (the "TERMINATION FEE") equal to the
then unamortized amount of all costs incurred by Landlord to enter into this
Amendment allocable to the Second Additional Space (i.e., Suite 320), including,
without limitation, the allocable portion of the Allowance, any brokerage
commissions and fees and any legal fees, amortized over the 5-year Extended
Term, on a monthly straight-line basis, with interest over such Extended Term at
eleven percent (11%) per annum. The Termination Fee shall be paid at the time
Tenant delivers the Termination Notice to Landlord, provided that the
Termination Fee shall be immediately returned to Tenant if the Termination Right
is denied pursuant to Section 11(a)(i) above, except to the extent Landlord is
owed past due Rent under the Lease, as amended hereby. Failure to pay the
Termination Fee shall, at Landlord's sole and absolute discretion, cause
Tenant's election to exercise the Termination Right to be ineffective and null
and void.
(b) TERMS. If Tenant timely and properly exercises the Termination
Right, (1) all Rent owing under this Amendment for the Second Additional Space
shall be paid through and apportioned as of the Termination Effective Date (in
addition to payment by Tenant of the Termination Fee); (2) neither party shall
have any rights, estates, liabilities or obligations under the Lease, as amended
hereby, for the Second Additional Space for the period first accruing after the
Termination Effective Date, except those which, by the provisions of the Lease,
as amended hereby, expressly survive the expiration or termination of the Lease
Term; (3) Tenant shall surrender and vacate the Second Additional Space and
deliver possession thereof to Landlord on or before the Termination Effective
Date in the condition required under the Lease for surrender of the Premises;
(4) Tenant shall relinquish the right to use one (1) indoor parking space at the
Building from and after the Termination Effective Date; and (5) Landlord and
Tenant shall enter into a written agreement reflecting the termination of the
Lease, as amended hereby, with respect to the Second Additional Space upon the
terms provided for herein, which agreement shall reflect the proportionate
reduction in Base Rent and Tenant's Percentage Share and shall be executed by
Tenant within thirty (30) days after Landlord's request. Without limiting the
generality of the foregoing, Tenant's exercise of the Termination Right shall
not affect Tenant's liability for (i) post-Lease Term adjustments to Rent
Adjustments for the Second Additional Space applicable to the period prior to
the Termination Effective Date, (ii) unperformed obligations for the Second
Additional Space which accrued prior to the Termination Effective Date and (iii)
obligations for the Second Additional Space which by their terms survive the
expiration or earlier termination of the Lease Term.
(c) AUTOMATIC TERMINATION. The Termination Right shall automatically
terminate and become null and void upon the earlier to occur of (1) the
termination of the Lease, as amended hereby; (2) the termination of Tenant's
right to possession of the Premises; (3) the assignment by Tenant of the Lease,
as amended hereby, in whole or in part; (4) the sublease by Tenant of the
Premises, in whole or in part; (5) the recapture by Landlord of any space under
Section 14.03 of the Original Lease, (6) the failure of Tenant to timely or
properly
6
exercise the Termination Right, or (7) Tenant's installation of a Facade Sign on
the Building as described in Section 8 above.
12. BROKER.
(a) Tenant represents and warrants to Landlord that except for Prime
Group Realty Services, Inc. and Xxxxxxx & Xxxxxxxxx of Illinois, Inc.
(collectively, "Broker"), Tenant has not dealt with any real estate broker,
salesperson or finder in connection with this Amendment, and no such person
initiated or participated in the negotiation of this Amendment. Tenant hereby
agrees to indemnify and hold Landlord harmless from and against any and all
liabilities and claims for commissions and fees arising out of a breach of the
foregoing representation. Landlord shall be responsible for the payment of any
commissions or fees due to Broker under any separate agreement between Landlord
and Broker.
(b) Landlord represents and warrants to Tenant that except for
Broker, Landlord has not dealt with any real estate broker, salesperson or
finder in connection with this Amendment, and no such person initiated or
participated in the negotiation of this Amendment. Landlord hereby agrees to
indemnify and hold Tenant harmless from and against any and all liabilities and
claims for commissions and fees arising out of a breach of the foregoing
representation. Tenant shall be responsible for the payment of any commissions
or fees due to Broker under any separate agreement between Tenant and Broker.
13. CONFLICT. In the event of any conflict between the terms or provisions
of the Lease and the terms or provisions of this Amendment, the terms and
provisions of this Amendment shall govern and control.
14. EFFECT OF AMENDMENT. As amended by this Amendment, the Lease shall
remain in full force and effect. This Amendment shall be binding upon and inure
to the benefit of Landlord, Tenant and their respective successors and permitted
assigns.
15. SUBMISSION. Submission of this Amendment by Landlord or its agent to
Tenant or its agent or representative, for examination and/or execution shall
not constitute a reservation of or option to amend the Lease or in any manner
bind Landlord and no obligation on Landlord shall arise under this Amendment
unless and until this Amendment is fully signed and delivered by Landlord and
Tenant; provided, however, the execution and delivery by Tenant of this
Amendment to Landlord, or its agent or representative, shall constitute an
irrevocable offer by Tenant to amend the Lease in accordance with the terms
described herein, which offer may not be revoked by Tenant for fifteen (15) days
after such delivery.
16. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
contained herein, neither Landlord (except to the extent of Landlord's interest
in the Premises and the Building) nor any of Landlord's successors, assigns,
members, partners, directors, officers, shareholders, agents, representatives,
employees and mortgagees, as applicable (individually and collectively, the
"Exculpated Parties"), shall have any personal liability whatsoever to Tenant
for any of Landlord's obligations contained in the Lease, as hereby amended,
including, but not limited to the obligations to observe, perform or discharge
any of the terms, covenants or conditions contained in the Lease, as hereby
amended. In the event that any suit or proceeding is brought under the Lease, as
hereby amended, any judgement obtained in or as a result of such suit or
proceeding shall not be enforced or enforceable personally against any of the
Exculpated Parties. Tenant agrees to look solely to Landlord's interest in the
Premises and the Building for the recovery of any judgment from Landlord, it
being agreed the Exculpated Parties, including, but not limited to Landlord,
shall never be personally liable for such judgment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first written above.
TENANT: LANDLORD:
KANBAY, INCORPORATED, an Illinois 0000 XXXXXX XXXXX, L.L.C., a Delaware limited
corporation liability company
By: /s/ Authorized Party By: PRIME GROUP REALTY, L.P., a Delaware
----------------------------- limited partnership, its Managing Member
Title: VP & CFO
--------------------------
By: PRIME GROUP REALTY TRUST, a
Maryland real estate investment trust, its
Managing General Partner
OFFICIAL SEAL By: /s/Authorized Party
XXXXX X XXXXX ---------------------------
NOTARY PUBLIC, STATE OF ILLINOIS Title: Authorized Party
MY COMMISSION EXPIRES: 04/16/04 ------------------------
By: /s/Authorized Party
/s/ Xxxxx X. Xxxxx ---------------------------
Title: Authorized Party
------------------------
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EXHIBIT A
PLAN OF OPTION SPACE
EXHIBIT A - Page 1
[GRAPHIC] FIRST FLOOR OFFICE PLAN
