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EXHIBIT 10.6
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00 XXXX XXXXXX XXXXXX
OFFICE BUILDING LEASE
BETWEEN
TST 55 EAST MONROE, L.L.C.
AS LANDLORD
AND
NETRIGHT TECHNOLOGIES
AS TENANT
DATED: JANUARY _____, 1999
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TABLE OF CONTENTS
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ARTICLE 1 BASIC LEASE PROVISIONS...................................................... 1
ARTICLE 2 SPECIAL PROVISIONS.......................................................... 2
Section 2.1 Fixed Option Space.............................................. 2
Section 2.2 Extension Term.................................................. 3
Section 2.3 Market Rental................................................... 4
Section 2.4 Arbitration..................................................... 4
Section 2.5 Option to Cancel................................................ 5
ARTICLE 3 PREMISES, TERM, RENT........................................................ 5
Section 3.1 Lease of Premises............................................... 5
Section 3.2 Payment of Rent................................................. 5
Section 3.3 First Month's Rent.............................................. 5
Section 3.4 Interest........................................................ 5
ARTICLE 4 USE AND OCCUPANCY........................................................... 5
Section 4.1 Uses, Licenses and Permits...................................... 5
Section 4.2 Delivery of Premises............................................ 6
ARTICLE 5 CONDITION OF THE PREMISES................................................... 6
Section 5.1 Condition....................................................... 6
Section 5.2 Landlord's Contribution......................................... 6
ARTICLE 6 ALTERATIONS................................................................. 6
Section 6.1 Landlord's Consent.............................................. 6
Section 6.2 Manner and Quality of Alterations............................... 7
Section 6.3 Removal of Tenant's Property.................................... 7
Section 6.4 Mechanic's Liens................................................ 7
Section 6.5 Labor Relations................................................. 8
Section 6.6 Tenant's Costs.................................................. 8
Section 6.7 Tenant's Equipment.............................................. 8
Section 6.8 Legal Compliance................................................ 8
ARTICLE 7 REPAIRS..................................................................... 9
Section 7.1 Landlord's Repair and Maintenance.............................. 9
Section 7.2 Tenant's Repair and Maintenance................................ 9
Section 7.3 Interruptions Due to Repairs................................... 9
ARTICLE 8 INCREASES IN TAXES AND OPERATING EXPENSES................................... 9
Section 8.1 Definitions.................................................... 9
Section 8.2 Tenant's Tax Payment........................................... 11
Section 8.3 Tenant's Operating Payment..................................... 12
Section 8.4 Formula........................................................ 13
Section 8.5 Non-Waiver; Disputes........................................... 13
ARTICLE 9 REQUIREMENTS OF LAW......................................................... 13
Section 9.1 Compliance...................................................... 13
Section 9.2 Fire Alarm System............................................... 14
Section 9.3 Limitations on Rent............................................. 14
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ARTICLE 10 SUBORDINATION............................................................... 14
Section 10.1 Subordination and Attornment................................... 14
Section 10.2 Mortgage or Superior Lease Defaults............................ 15
Section 10.3 Tenant's Termination Right..................................... 15
Section 10.4 Provisions..................................................... 15
Section 10.5 Non-Disturbance Agreements..................................... 16
ARTICLE 11 SERVICES.................................................................... 16
Section 11.1 Elevators...................................................... 16
Section 11.2 Heating. Ventilation and Air Conditioning...................... 16
Section 11.3 Overtime Freight Elevators and HVAC............................ 16
Section 11.4 Cleaning....................................................... 17
Section 11.5 Water.......................................................... 17
Section 11.6 Refuse and Rubbish Removal..................................... 17
Section 11.7 Service Interruptions.......................................... 17
Section 11.8 Rent Abatement for Interruptions and Repairs................... 17
ARTICLE 12 INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT........................... 18
Section 12.1 Tenant's Insurance............................................. 18
Section 12.2 Waiver of Subrogation.......................................... 19
ARTICLE 13 DESTRUCTION - FIRE OR OTHER CAUSE........................................... 19
Section 13.1 Restoration.................................................... 19
Section 13.2 Landlord's Termination Right................................... 19
Section 13.3 Tenant's Termination Right..................................... 20
Section 13.4 Final 18 Months................................................ 20
Section 13.5 Landlord's Liability........................................... 20
Section 13.6 Windows........................................................ 20
ARTICLE 14 EMINENT DOMAIN.............................................................. 20
Section 14.1 Condemnation................................................... 20
Section 14.2 Awards......................................................... 21
Section 14.3 Temporary Taking............................................... 21
ARTICLE 15 ASSIGNMENT AND SUBLETTING .................................................. 21
Section 15.1 Landlord's Consent............................................. 21
Section 15.2 Tenant's Notice................................................ 22
Section 15.3 Landlord's Termination......................................... 22
Section 15.4 Conditions to Assignment/Subletting............................ 22
Section 15.5 Binding on Tenant; Indemnification of Landlord................. 24
Section 15.6 Tenant's Failure to Complete................................... 24
Section 15.7 Profits........................................................ 24
Section 15.8 Other Transfers................................................ 24
Section 15.9 Assumption of Obligations...................................... 25
Section 15.10 Tenant's Liability............................................ 25
Section 15.11 Listings in Building Directory................................ 25
Section 15.12 Lease Disaffirmance or Rejection.............................. 25
ARTICLE 16 ELECTRICITY................................................................. 26
Section 16.1 Electricity.................................................... 26
Section 16.2 Excess Electricity............................................. 26
Section 16.3 Service Disruption............................................. 26
Section 16.4 Electricity Additional Rent.................................... 27
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ARTICLE 17 ACCESS TO PREMISES.......................................................... 28
Section 17.1 Landlord's Access.............................................. 28
Section 17.2 Final 12 Months................................................ 28
Section 17.3 Alterations to Building........................................ 28
ARTICLE 18 DEFAULT..................................................................... 29
Section 18.1 Tenant's Defaults.............................................. 29
Section 18.2 Tenant's Liability............................................. 30
ARTICLE 19 REMEDIES AND DAMAGES........................................................ 30
Section 19.1 Landlord's Remedies............................................ 30
Section 19.2 Landlord's Damages............................................. 31
Section 19.3 Default Interest; Other Rights of Landlord..................... 31
ARTICLE 20 LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES................................. 32
ARTICLE 21 NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL......................... 32
Section 21.1 No Representations............................................. 32
Section 21.2 Written Approval............................................... 32
Section 21.3 No Money Damages............................................... 32
ARTICLE 22 END OF TERM................................................................. 33
Section 22.1 Expiration..................................................... 33
Section 22.2 Holdover Rent.................................................. 33
ARTICLE 23 QUIET ENJOYMENT............................................................. 33
ARTICLE 24 NO SURRENDER; NO WAIVER..................................................... 33
Section 24.1 No Surrender or Release........................................ 33
Section 24.2 No Waiver...................................................... 34
ARTICLE 25 WAIVER OF TRIAL BY JURY..................................................... 34
ARTICLE 26 INABILITY TO PERFORM........................................................ 34
ARTICLE 27 NOTICES..................................................................... 34
ARTICLE 28 RULES AND REGULATIONS....................................................... 35
ARTICLE 29 PARTNERSHIP TENANT.......................................................... 35
Section 29.1 Partnership Tenant............................................. 35
Section 29.2 Change of Partners............................................. 36
ARTICLE 30 SUBSTITUTION OF OTHER PREMISES.............................................. 36
ARTICLE 31 BROKER...................................................................... 36
Section 31.1 Broker Representations......................................... 36
Section 31.2 Indemnity...................................................... 37
ARTICLE 32 INDEMNITY................................................................... 37
Section 32.1 Indemnity...................................................... 37
Section 32.2 Defense and Settlement......................................... 37
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ARTICLE 33 MISCELLANEOUS............................................................... 38
Section 33.1 Delivery....................................................... 38
Section 33.2 Transfer of Real Property...................................... 38
Section 33.3 Limitation on Liability........................................ 38
Section 33.4 Rent........................................................... 38
Section 33.5 Entire Document................................................ 38
Section 33.6 Governing Law.................................................. 38
Section 33.7 Unenforceability............................................... 38
Section 33.8 Lease Disputes................................................. 38
Section 33.9 Landlord's Agent............................................... 39
Section 33.10 Estoppel...................................................... 39
Section 33.11 Certain Interpretational Rules................................ 39
Section 33.12 Captions...................................................... 39
Section 33.13 Parties Bound................................................. 39
Section 33.14 Directory..................................................... 40
Section 33.15 Counterparts.................................................. 40
Section 33.16 Joint and Several Obligations................................. 40
Section 33.17 Amendments.................................................... 40
ARTICLE 34 TAX STATUS OF BENEFICIAL OWNERS............................................. 40
ARTICLE 35 SECURITY DEPOSIT............................................................ 40
Section 35.1 Security Deposit............................................... 40
Section 35.2 Letter of Credit............................................... 41
Section 35.3 Application of Security........................................ 41
Section 35.4 Transfer....................................................... 41
EXHIBIT A Floor Plan..................................................................A-1
EXHIBIT A-1 First Option Space..........................................................A-3
EXHIBIT A-2 Second Option Space
EXHIBIT B Definitions.................................................................B-1
EXHIBIT D HVAC Specifications.........................................................D-1
EXHIBIT E Cleaning Specifications.....................................................E-1
EXHIBIT F Rules and Regulations.......................................................F-1
EXHIBIT G SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.....................G-1
EXHIBIT H LEASE ESTOPPEL CERTIFICATE..................................................H-1
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LEASE
THIS LEASE is made as of the ____ day of January, 1999, between TST 55 EAST
Monroe L.L.C., a Delaware limited liability company ("Landlord"), having an
office c/o Tishman Speyer Properties, L.P. 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 and NetRight Technologies ("Tenant"), a _______________________
having an office at _________________________________, ____________.
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1
BASIC LEASE PROVISIONS
PREMISES A portion of the 17th floor of the Building, as more particularly shown on Exhibit A.
BUILDING The building, fixtures, equipment and other improvements and appurtenances
now located or hereafter erected, located or placed upon the land known as 00 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
REAL PROPERTY The Building, together with the plot of land upon which it stands.
COMMENCEMENT DATE The date upon which Landlord delivers a fully-executed copy of
this Lease to Tenant.
RENT COMMENCEMENT
DATE ("RCD") The earlier of (a) April 15, 1999 and (b) the date upon which Tenant occupies the Premises
for the conduct of its business.
EXPIRATION DATE April 30, 2009, or the last day of any renewal or extended term, if the term of this Lease
shall have been extended in accordance with any express provision hereof.
TERM The period commencing on the Commencement Date and ending on the Expiration Date.
PERMITTED USES Executive and general offices for the transaction of Tenant's business.
BASE TAXES $0.00
BASE OPERATING EXPENSES 0.916 percent for Taxes and 0.971 percent for Operating Expenses
TENANT'S
PROPORTIONATE SHARE 0.916 percent for Taxes and 0.971 percent for Operating Expenses
AGREED AREA OF BUILDING 1,528,700 rentable square feet of office and retail space. 1,443,000 rentable square
feet of office space.
AGREED AREA OF PREMISES 14,007 rentable square feet.
ELECTRICAL ALLOCATION $1.31 per rentable square foot
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Annual Monthly
FIXED RENT Period Fixed Rent Installment
---------- ------ ----------- -----------
RCD -03/31/00 $126,063.00 $10,505.25
04/1/00-03/31/01 133,066.50 11,088.88
04/1/01-03/31/02 140,070.00 11,672.50
04/1/02-03/31/03 147,073.50 12,256.13
04/1/03-03/31/04 154,077.00 12,839.75
04/1/04-03/31/05 161,080.50 13,423.38
04/1/05-03/31/06 168,084.00 14,007.00
04/1/06-03/31/07 175,087.50 14,590.63
04/1/07-03/31/08 182,091.00 15,174.25
04/1/08-04/30/09 189,094.50 15,757.88
ADDITIONAL RENT All sums other than Fixed Rent payable by Tenant to Landlord under this Lease, including
Tenant's Tax Payment, Tenant's Operating Payment, Electricity Additional Rent, late
charges, overtime or excess service charges, and interest and other costs related to
Tenant's failure to perform any of its obligations under this Lease.
RENT Fixed Rent and Additional Rent, collectively.
INTEREST RATE The lesser of (i) four percent per annum above the then current Base Rate charged by
Citibank, N.A. or its successor, or (ii) the maximum rate permitted by applicable law.
SECURITY DEPOSIT $23,450.00 cash security deposit and $427,215.00 Letter of Credit
BROKER Xxxxxxx & Xxxxxxxxx of Illinois, Inc.
LANDLORD'S AGENT Tishman Speyer Properties, L.P. or any other person designated at any time and from time
to time by Landlord as Landlord's Agent and their successors and assigns.
LANDLORD'S $280,140.00
CONTRIBUTION
All capitalized terms used in the Lease text without definition are
defined in Exhibit B.
ARTICLE 2
SPECIAL PROVISIONS
SECTION 2.1 FIXED OPTION SPACE.
(a) Tenant shall have the following rights (together, the "Expansion
Rights") to lease additional space in the Building:
(i) the right ("First Expansion Right") to lease the space on
the seventeenth (17th) floor of the Building identified as first option space on
Exhibit A attached hereto containing approximately 2,961 rentable square feet
("First Option Space"), effective as of a date specified by Tenant in its
Exercise Notice, which date shall occur prior to April 1, 2001 and at least 3
months after the delivery of the Exercise Notice.
(ii) the right ("Second Expansion Right") to lease
the space on the seventeenth (17th) floor of the Building identified as second
option space on Exhibit A attached hereto containing approximately 2,266
rentable square feet ("Second Option Space"), effective May 1, 2003.
As used herein, the Proposed Delivery Date for the First Option Space shall be
the date specified by Tenant in its Exercise Notice and the Proposed Delivery
Date for the Second Option Space shall be May 1, 2003. The First Option Space
and Second Option Space
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are herein referred to as the "Option Space." On or before the later of (x) 30
days after Tenant's exercise of an Expansion Right or (y) 8 months prior to the
Proposed Delivery Date, Landlord shall advise Tenant in writing of (1) the
Market Rental for the applicable Option Space and (2) any rent abatement,
construction allowances, Landlord's Work or other rent concession ("Option Space
Rent Concessions") to be provided by Landlord for such space. Tenant shall be
deemed to have accepted Landlord's determination of the Market Rental unless,
within 30 days after receipt of such Market Rental determination, Tenant
notifies Landlord in writing of (s) its election to have the Market Rental
determined pursuant to Section 2.4 and (t) Tenant's determination of the Market
Rental.
(b) Tenant may exercise an Expansion Right only if (i) Tenant shall
have notified Landlord in writing of Tenant's exercise of such Expansion Right
not later than three (3) months prior to the Proposed Delivery Date for the
First Option Space and nine (9) months prior to the Proposed Delivery Date for
the Second Option Space, (ii) Tenant and Related Entities occupy at least 80% of
the Premises, (iii) at the time of the exercise of such right and immediately
prior to the Proposed Delivery Date the Lease is in full force and effect and no
Event of Default shall have occurred and be continuing hereunder and (iv) Tenant
has not exercised the cancellation option pursuant to Section 2.5.
(c) If Tenant exercises an Expansion Right and provided the Lease is
then in full force and effect and no Event of Default then exists, the Option
Space shall be leased commencing on the date ("Option Space Commencement Date")
which is the later of (i) the Proposed Delivery Date for such space and (ii) the
date Landlord delivers possession of all of the Option Space to Tenant. The
Option Space shall be leased in its then "as is" condition, and except for the
Option Space Rent Concessions, Landlord shall not be required to provide any
work or contribution to improve the Option Space for Tenant's use. Landlord
shall not be liable for failure to deliver possession of the Option Space to
Tenant on or before the Proposed Delivery Date and such failure shall not impair
the validity of the Lease or Tenant's exercise of its Expansion Right. However,
Landlord shall use reasonable and diligent efforts to obtain and deliver
possession of the First Option Space and Second Option Space to Tenant. The term
of the lease for the Option Space shall expire on the Expiration Date. Tenant
shall commence to pay Rent for the Option Space on the Option Space Commencement
Date. On the Option Space Commencement Date the Agreed Area of the Premises
shall be increased by the rentable area of the Option Space and thereafter the
"Premises" shall include such Option Space. On the Option Space Commencement
Date Tenant's Proportionate Share shall be increased by an amount equal to the
percentage equivalent of a fraction the numerator of which is the rentable area
of the Option Space and the denominator of which is the Agreed Area of the
Building. The annual Fixed Rent for the Option Space shall be equal to the
product of (A) the rentable area of such Option Space and (B) the Market Rental
for such Option Space as of the Option Space Commencement Date as determined by
Landlord or pursuant to Section 2.5. The annual Fixed Rent for the Option Space
shall be payable in 12 equal monthly installments in accordance with Section
3.2. Tenant shall receive the benefit of any Option Space Rent Concessions
Landlord is to provide for the Option Space. Any construction allowance included
in the Option Space Rent Concessions shall be disbursed in the same manner and
subject to the same terms and conditions as set forth in Section 5.2. Except as
provided herein, all the other terms and conditions of the Lease shall apply to
the Option Space.
(d) Landlord and Tenant shall enter into a mutually acceptable
written amendment to the lease confirming the terms, conditions, and provisions
applicable to the Option Space as determined in accordance with the provisions
of this Section, but Landlord's or Tenant's failure to execute such amendment
shall not relieve Tenant of its obligation to lease such Option Space on the
terms and conditions set forth in this Section.
SECTION 2.2 EXTENSION TERM.
(a) Tenant shall have the right to extend the Term for all of the
Premises for one extension term of 5 years (the "Extension Term") which shall
commence on the day following the expiration of the initial Term and end on the
fifth anniversary of the Expiration Date, unless the Extension Term shall sooner
terminate pursuant to any of the terms of this Lease or otherwise. The Extension
Term shall commence only if (i) Tenant shall have notified Landlord in writing
of Tenant's exercise of such extension right not later than nine (9) months
prior to the Expiration Date, (ii) at the time of the exercise of such right and
immediately prior to the Expiration Date, no event of Default shall have
occurred and be continuing hereunder, and (iii) Tenant and/or Related Entities
shall be in occupancy of at least 80 percent of the Premises at the time such
notice is given. Time is of the essence with respect to the giving of the notice
of Tenant's exercise of the extension option. The Extension Term shall be upon
all of the agreements, terms, covenants and conditions hereof binding upon
Tenant, except that (x) the Fixed Rent (as defined in Article 1) shall be
determined as provided in Section 2.2(b), (y) Tenant shall have no further right
to renew the Term and (z) Landlord shall have no obligation to provide any work
or contribution to improve the Premises for Tenant's use. Upon the commencement
of the Extension Term, (A) the Extension Term shall be added to and become part
of the Term (but shall not be
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considered part of the initial Term), (B) any reference to "this Lease", to the
"Term", the "term of this Lease" or any similar expression shall be deemed to
include the Extension Term, and (C) the expiration of the Extension Term shall
become the Expiration Date.
(b) If the Term shall be extended as provided in Section 2.2(a), the
annual Fixed Rent payable during the Extension Term shall be equal to the
product of (i) the Agreed Area of the Premises as of the first day of the
Extension Term and (ii) the Market Rental for the Premises as of the day
immediately following the expiration of the initial Term. The annual Fixed Rent
shall be payable in 12 equal monthly installments. No adjustment shall be made
to Base Operating Expenses and Base Taxes for the Extension Term. On or before
the later of (a) 30 days after Tenant exercises an option to extend the Term for
the Extension Term and (b) 11 months prior to the beginning of the Extension
Term, Landlord shall notify Tenant in writing of Landlord's determination of the
Market Rental for the Premises, or the portion thereof to be leased by Tenant
during the Extension Term. Tenant shall be deemed to have accepted Landlord's
determination of the Market Rental unless, within 30 days after Tenant receives
Landlord's notice of such Market Rental, Tenant notifies Landlord in writing of
(x) Tenant's election to have such Market Rental determined pursuant to Section
2.4 and (y) Tenant's determination of the Market Rental.
(c) Landlord and Tenant shall enter into a mutually acceptable
amendment to the Lease confirming the terms, conditions and provisions
applicable to the Premises during the Extension Term in accordance with this
Section, but neither Landlord's nor Tenant's failure to execute such amendment
0shall relieve Tenant of its obligation to lease the Premises on the terms and
conditions set forth herein.
SECTION 2.3 MARKET RENTAL. The "Market Rental" shall be the annual
market rental rate per rentable square foot as of the beginning of the term of
the space in question for space comparable in size, location and degree of
improvements to be or included in the space in question and for a term
comparable to the term in question. The Market Rental shall be determined by
taking into consideration comparable fact situations in the Building and in
Comparable Buildings. The Market Rental shall take into account, without
limitation, the rent concessions such as rental abatements and construction
allowances to be provided by Landlord and the market rent concessions; the
leasing commissions payable for the space in question, the Base Taxes and Base
Operating Expenses used in determining Tenant's Tax Payments and Tenant's
Operating Payments, periodic increases in rent to adjust for inflation and other
then prevailing rental related terms, conditions and components of rent. If the
Fixed Rent payable the space in question has not been determined prior to the
beginning of the applicable term, Tenant shall pay Fixed Rent in an amount equal
to the Market Rental as determined by Landlord (the "Interim Rent"). Upon final
determination of the Fixed Rent for the space in question, Tenant shall commence
paying such Fixed Rent as so determined, and within ten (10) days after such
determination Tenant shall pay any deficiency in prior payments of Fixed Rent
or, if the Fixed Rent as so determined shall be less than the Interim Rent,
Tenant shall be entitled to a credit against the next succeeding installments of
Fixed Rent in an amount equal to the difference between each installment of
Interim Rent and the Fixed Rent as so determined which should have been paid for
such installment until the total amount of the over payment has been recouped.
SECTION 2.4 ARBITRATION. If the Market Rental is to be determined
pursuant to this Section 2.4, Tenant shall give notice to Landlord of such
dispute within 10 days of Tenant's receipt of Landlord's determination, and such
dispute shall be determined by a single arbitrator appointed in accordance with
the American Arbitration Association Real Estate Valuation Arbitration
Proceeding Rules. The arbitrator shall be impartial and shall have not less than
10 years' experience in the City of Chicago in a calling related to the leasing
of commercial office space in office buildings comparable to the Building, and
the fees of the arbitrator shall be shared by Landlord and Tenant. Within 30
days following the appointment of the arbitrator, Landlord and Tenant shall
attend a hearing before the arbitrator at which each party shall submit a report
setting forth its determination of the Market Rental for the space and term in
question, together with such information on comparable rentals and such other
evidence as such party shall deem relevant. The arbitrator shall, within 30 days
following such hearing and submission of evidence, render his or her decision by
selecting the determination of Market Rental submitted by either Landlord or
Tenant which, in the judgment of the arbitrator, most nearly reflects the Market
Rental for the space and term in question. The arbitrator shall have no power or
authority to select any Market Rental other than a Market Rental submitted by
Landlord or Tenant, and the decision of the arbitrator shall be final and
binding upon Landlord and Tenant. Each party shall pay the fees and expenses of
its counsel and witnesses and shall share equally the fees of the arbitrator.
SECTION 2.5 OPTION TO CANCEL. Tenant shall have the option to cancel
this Lease effective on the April 30, 2004 ("Termination Effective Date") by
delivery of written notice of such election to Landlord prior to April 1, 2003,
time being of the essence, and payment of a cancellation fee ("Cancellation
Fee") with such notice equal to the sum of (a) $265,714.66 and (b) five times
the then monthly installments of Fixed Rent and Additional Rent. If Tenant
leases Option Space, the Cancellation Fee shall be increased by the unamortized
cost as of the Termination Effective Date of any leasing commissions,
construction allowances,
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rent abatements and other rent concessions paid or provided by Landlord for such
space; such costs to be amortized over the Term remaining after the date Rent
commences for such space with interest at 10% per annum.
SECTION 2.6 RENT CREDIT. If the costs of the Initial Installations
equals or exceeds $210,105.00, then Tenant shall receive a credit against Rent
equal to that portion, if any, of Landlord's Contribution not applied to the
cost of the Initial Installations. The credit shall be applied to the Rent due
and owing on or after the first day of the month following the final application
of Landlord's Contribution to the cost of the Initial Installations and
continuing until such rent credit has been fully applied.
ARTICLE 3
PREMISES, TERM, RENT
SECTION 3.1 LEASE OF PREMISES. Subject to the terms of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises for the
Term. In addition, Landlord grants to Tenant the right to use, on a
non-exclusive basis and in common with other tenants, the lobby area and other
Building common elements and common facilities.
SECTION 3.2 PAYMENT OF RENT. Tenant shall pay to Landlord, without
notice or demand, and without any set-off, counterclaim, abatement or deduction
whatsoever, except as may be expressly set forth in this Lease, in lawful money
of the United States by wire transfer of funds to Landlord's account, as
designated by Landlord, or by check drawn upon a bank approved by Landlord, (i)
Fixed Rent in equal monthly installments, in advance, on the first (1st) day of
each calendar month during the Term, commencing on the Rent Commencement Date,
and (ii) Additional Rent, at the times and in the manner set forth in this
Lease. Except as otherwise expressly set forth in this Lease, Tenant's
obligations to pay Rent is independent of each and every covenant contained in
this Lease.
SECTION 3.3 FIRST MONTH'S RENT. If the Rent Commencement Date shall
occur on a date other than the first day of any calendar month, Tenant shall pay
to Landlord, on the Rent Commencement Date, a sum equal to the Fixed Rent for
such month multiplied by a fraction, the numerator of which shall be the number
of calendar days in the period from the Rent Commencement Date to the last day
of the month in which the Rent Commencement Date shall occur, both dates
inclusive, and the denominator of which shall be the number of calendar days in
such month.
SECTION 3.4 INTEREST. If Tenant shall fail to pay any installment or
other payment of Rent when due, interest shall accrue on such installment or
payment as a late charge, from the date such installment or payment became due
until the date paid at the Interest Rate.
ARTICLE 4
USE AND OCCUPANCY
Section 4.1 Uses, Licenses and Permits.
(a) PERMITTED USES. Tenant shall use and occupy the Premises for the
Permitted Uses and for no other purpose. Tenant shall not use or occupy or
permit the use or occupancy of any part of the Premises in a manner constituting
a Prohibited Use, which violates any Requirement, which causes the Building to
be in violation of any Requirement, or which exceeds the floor loads for the
Premises.
(b) LICENSES AND PERMITS. Tenant, at its expense, shall procure and
at all times maintain and comply with the terms and conditions of all licenses
and permits required for the lawful conduct of the Permitted Uses in the
Premises. Landlord represents that the Certificate of Occupancy issued for the
Building permits the use of the Premises as offices.
SECTION 4.2 DELIVERY OF PREMISES. Landlord shall not be liable for
failure to deliver possession of the Premises on the Commencement Date and such
failure shall not impair the validity of the Lease or extend the Term, provided,
however, the Rent payable hereunder shall be abated until possession of the
Premises is delivered to Tenant.
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ARTICLE 5
CONDITION OF THE PREMISES
SECTION 5.1 CONDITION. Tenant has inspected the Premises and agrees (a)
to accept possession of the Premises in the condition existing on the
Commencement Date "as is", (b) that neither Landlord nor Landlord's agents have
made any representations or warranties with respect to the Premises or the
Building except as expressly set forth herein, and (c) except for Landlord's
Contribution as expressly set forth in Section 5.2 hereof, Landlord has no
obligation to perform any work, supply any materials, incur any expense or make
any alterations or improvements to the Premises to prepare the Premises for
Tenant's occupancy. Any work to be performed by Tenant for Tenant's initial
occupancy of the Premises shall be referred to hereinafter as the "Initial
Installations". Tenant's occupancy of any part of the Premises shall be
conclusive evidence, as against Tenant, that Tenant has accepted possession of
the Premises in its then current condition and at the time such possession was
taken, the Premises and the Building were in a good and satisfactory condition
as required by this Lease.
SECTION 5.2 LANDLORD'S CONTRIBUTION.
(a) Landlord agrees to pay to Tenant an amount not to exceed
Landlord's Contribution toward the cost of the Initial Installations, provided
as of the date on which Landlord is required to make payment thereof pursuant to
Section 5.2(b), (i) this Lease is in full force and effect, (ii) Tenant has
delivered to Landlord the Letter of Credit described in Section 34.2 and (iii)
no Event of Default then exists and is continuing. Tenant shall pay all costs of
the Initial Installations in excess of Landlord's Contribution. Landlord's
Contribution shall be payable solely on account of labor directly related to the
Initial Installations and materials delivered to the Premises in connection with
the Initial Installations, and architectural, consulting and engineering fees
incurred in connection with the Initial Installations.
(b) Landlord shall pay Landlord's Contribution to Tenant following
commencement of Tenant's business operations at the Premises and the final
completion of the Initial Installations, within 30 days after submission by
Tenant to Landlord of a written requisition therefor, signed by the chief
financial officer of Tenant and accompanied by (i) copies of paid invoices
covering all of the Initial Installations, (ii) a written certification from
Tenant's architect stating that the Initial Installations described on such
invoices have been completed in accordance with the plans and specifications
approved by Landlord, that such work has been paid in full by Tenant and that
all contractors, subcontractors and material suppliers have delivered to Tenant
waivers of lien with respect to such work (copies of which shall be included
with such architect's certification), (iii) proof of the satisfactory completion
of all required inspections and the issuance of any required approvals and
sign-offs by Governmental Authorities with respect thereto, (iv) final
"as-built" plans and specifications for the Initial Installations as required
pursuant to Section 6.1(c) and (v) such other documents and information as
Landlord may reasonably request, including in connection with title drawdowns
and endorsements.
ARTICLE 6
ALTERATIONS
SECTION 6.1 LANDLORD'S CONSENT.
(a) TENANT'S ALTERATIONS. Tenant shall not make any alterations,
additions or other physical changes in or about the Premises (collectively,
"Alterations") (other than decorative Alterations such as painting, wall
coverings and carpeting ("Decorative Alterations")) without Landlord's prior
consent, which may be withheld in Landlord's sole discretion. Landlord shall not
unreasonably withhold its consent to Alterations so long as such Alterations (i)
are non-structural and do not affect the Building Systems, (ii) are performed
only by Landlord's designated contractors or by contractors or mechanics
approved by Landlord to perform such Alterations, (iii) affect only the Premises
and are not visible from outside of the Premises, (iv) do not affect the
certificate of occupancy issued for the Building or the Premises, (v) do not
adversely affect any service furnished by Landlord to Tenant or to any other
tenant of the Building and (vi) do not violate any Requirement or cause the
Premises or the Building to be non-compliant with any Requirement.
(b) PLANS AND SPECIFICATIONS. Prior to making any Alterations,
Tenant, at its expense, shall (i) submit to Landlord for its written approval,
detailed plans and specifications (including layout, architectural, mechanical,
electrical, plumbing, sprinkler and structural drawings) of each proposed
Alteration, and with respect to any Alteration affecting any Building
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System, Tenant shall submit proof that the Alteration has been designed by, or
reviewed and approved by, Landlord's designated engineer for the affected
Building System, (ii) obtain all permits, approvals and certificates required by
any Governmental Authorities, (iii) furnish to Landlord duplicate original
policies or certificates of worker's compensation (covering all persons to be
employed by Tenant, and Tenant's contractors and subcontractors in connection
with such Alteration) and comprehensive public liability (including property
damage coverage) insurance and Builder's Risk coverage (issued on a completed
value basis) all in such form, with such companies, for such periods and in such
amounts as Landlord may reasonably require, naming Landlord, Landlord's managing
agent, and their respective employees and agents, any Lessor and any Mortgagee
as additional insureds and (iv) furnish to Landlord such other evidence of
Tenant's ability to complete and to fully pay for such Alterations as is
reasonably satisfactory to Landlord. Upon Tenant's request, Landlord shall
reasonably cooperate with Tenant in obtaining any permits, approvals or
certificates required to be obtained by Tenant in connection with any permitted
Alteration (if the provisions of the applicable Requirement require that
Landlord join in such application), provided Landlord shall incur no cost,
expense or liability in connection therewith.
(c) GOVERNMENTAL APPROVALS. Upon completion of any Alterations,
Tenant, at its expense, shall promptly obtain certificates of final approval of
such Alterations required by any Governmental Authority and shall furnish
Landlord with copies thereof, together with "as-built" plans and specifications
for such Alterations both in reproducible and CAD form.
SECTION 6.2 MANNER AND QUALITY OF ALTERATIONS. All Alterations shall be
performed (a) in a good and workmanlike manner and free from defects, (b) in
accordance with the plans and specifications, and by contractors approved by
Landlord, (c) under the supervision of a licensed architect reasonably
satisfactory to Landlord, and (d) in compliance with all Requirements, the terms
of this Lease, all procedures and regulations then prescribed by Landlord for
coordinating all work performed in the Building and the Rules and Regulations.
All materials and equipment to be used in the Premises shall be of first quality
and at least equal to the applicable standards for the Building then established
by Landlord, and no such materials or equipment (other than Tenant's Property)
shall be subject to any lien or other encumbrance.
SECTION 6.3 REMOVAL OF TENANT'S PROPERTY. Tenant's Property shall be and
remain the property of Tenant and Tenant may remove the same at any time on or
before the Expiration Date. On or prior to the Expiration Date, Tenant shall,
unless otherwise directed by Landlord, at Tenant's expense, remove any Specialty
Alteration. Tenant shall repair and restore, in a good and workmanlike manner,
any damage to the Premises or the Building caused by Tenant's removal of any
Specialty Alterations or Tenant's Property, and upon default thereof, Tenant
shall reimburse Landlord, on demand, for Landlord's cost of repairing and
restoring such damage. Any Specialty Alterations or Tenant's Property not so
removed shall be deemed abandoned and Landlord may remove and dispose of same,
and repair and restore any damage caused thereby, at Tenant's cost and without
accountability to Tenant. This Section 6.3 shall survive the expiration or
earlier termination of this Lease.
SECTION 6.4 MECHANIC'S LIENS. Tenant, at its expense, shall discharge
any lien or charge filed against the Premises or the Real Property in connection
with any work claimed or determined in good faith by Landlord to have been done
by or on behalf of, or materials claimed or determined in good faith by Landlord
to have been furnished to, Tenant, within 30 days after Tenant's receipt of
notice thereof by payment, filing the bond required by law or otherwise in
accordance with law. If any such liens so attach and Tenant fails to pay and
remove same or contest same as provided herein, 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 Interest Rate, as provided under
Section 3.4 hereof for amounts owed Landlord by Tenant. Such sums shall be
deemed to be additional rent due and payable by Tenant at once without notice or
demand. Notwithstanding the foregoing prohibition against liens against the
Premises, Tenant may in good faith and with reasonable diligence contest the
validity or amount of any lien and defer payment and discharge thereof during
the pendency of such contest, provided: (i) that such contest shall have the
effect of preventing the sale or forfeiture of the Real Property of any part
thereof, or any interest therein, to satisfy such lien; (ii) that, within thirty
(30) days after Tenant has been notified of the filing of such lien, Tenant
shall have notified Landlord in writing of Tenant's intention to contest such
lien; and (iii) that, at Landlord's option, Tenant shall have obtained a title
insurance endorsement over such lien insuring Landlord, Mortgagee and Lessor
against loss or damage by reason of the existence of such lien or Tenant shall
have deposited or caused to be deposited a sum of money which shall be
sufficient in the reasonable judgment of Landlord to pay in full such lien and
all interest which might become due thereon, and shall keep on deposit an amount
so sufficient at all times, increasing such amount to cover additional interest
whenever, in the reasonable judgment of Landlord, such increase is advisable. If
Tenant shall fail to maintain or cause to be maintained sufficient funds on
deposit as hereinabove provided, shall fail to prosecute such contest or cause
such contest to be prosecuted with reasonable diligence, or shall fail to pay or
cause to be paid the amount of the lien plus any interest finally determined to
be due upon the conclusion of such contest, Landlord may, at its option, apply
the money as deposited in payment of or on account of such lien, or that part
thereof then unpaid, together with all interest thereon. If the amount of money
so deposited shall be insufficient for the payment in full of such lien,
together with all interest thereon, Tenant shall forthwith, upon demand, deposit
with Landlord a sum which, when added to the funds then on deposit, shall be
sufficient to make such payment in full.
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SECTION 6.5 LABOR RELATIONS. Tenant shall not employ, or permit the
employment of, any contractor, mechanic or laborer, or permit any materials to
be delivered to or used in the Building, if, in Landlord's sole judgment, such
employment, delivery or use will interfere or cause any conflict with other
contractors, mechanics or laborers engaged in the construction, maintenance or
operation of the Building by Landlord, Tenant or others, or the use and
enjoyment of the Building by other tenants or occupants. In the event of such
interference or conflict, upon Landlord's request, Tenant shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
SECTION 6.6 TENANT'S COSTS. Tenant shall pay promptly to Landlord or its
designee, upon demand, all reasonable out-of-pocket costs actually incurred by
Landlord in connection with Tenant's Alterations (including the Initial
Installations), including costs incurred in connection with (a) Landlord's
review of the Alterations (including review of requests for approval thereof)
and (b) the provision of Building personnel during the performance of any
Alteration required by trade union policy or otherwise, to operate elevators or
otherwise to facilitate Tenant's Alterations. In addition, if Tenant's
Alterations shall cost more than $25,000, exclusive of the cost of Decorative
Alterations, Tenant shall pay to Landlord or its designee, upon demand, an
administrative fee in respect of the performance of such Alterations and the
scheduling of Building equipment, facilities and personnel in connection
therewith in an amount equal to two percent of the total cost of such
Alterations, exclusive of the cost of Decorative Alterations.
SECTION 6.7 TENANT'S EQUIPMENT. Tenant shall not move any heavy
machinery, heavy equipment, freight, bulky matter or fixtures (collectively,
"Equipment") into or out of the Building without Landlord's prior consent and
payment to Landlord of any costs incurred by Landlord in connection therewith.
If such Equipment requires special handling, Tenant agrees (a) to employ only
persons holding a license, if required by Applicable Law, to perform such work,
(b) all work performed in connection therewith shall comply with all applicable
Requirements and (c) such work shall be done only during hours designated by
Landlord. The agreements set forth in this Section 6.7 shall survive the
expiration or earlier termination of this Lease.
SECTION 6.8 LEGAL COMPLIANCE. The approval of plans or specifications,
or consent by Landlord to the making of any Alterations, does not constitute
Landlord's agreement or representation that such plans, specifications or
Alterations comply with any Requirements or the certificate of occupancy issued
for the Building. Landlord shall have no liability to Tenant or any other party
in connection with Landlord's approval of any plans and specifications for any
Alterations, or Landlord's consent to Tenant's performing any Alterations. If as
the result of any Alterations made by or on behalf of Tenant, Landlord is
required to make any alterations or improvements to any part of the Building in
order to comply with any Requirements, whether or not in or near the Premises,
Tenant shall pay all costs and expenses incurred by Landlord in connection with
such alterations or improvements.
ARTICLE 7
REPAIRS
SECTION 7.1 LANDLORD'S REPAIR AND MAINTENANCE. Landlord shall operate,
maintain and, except as provided in Section 7.2 hereof, make all necessary
repairs (both structural and nonstructural) to (i) the Building Systems up to
the point of connection to the Premises, and (ii) the public portions of the
Building, both exterior and interior, in conformance with standards applicable
Comparable Buildings.
SECTION 7.2 TENANT'S REPAIR AND MAINTENANCE. Tenant shall promptly, at
its expense and in compliance with Article 6 of this Lease, (a) make all
nonstructural repairs to the Premises, and the fixtures, equipment and
appurtenances therein (including all electrical, plumbing, mechanical and life
safety systems in the Premises from the point they connect to the Building
Systems) as and when needed to preserve the Premises in good working order and
condition, except for reasonable wear and tear and damage for which Tenant is
not responsible, and (b) repair or replace damaged doors, signs and glass (other
than exterior window glass) in and about the Premises. Without limiting the
foregoing, all damage to the Premises or to any other part of the Building, or
to any fixtures, equipment, sprinkler system and/or appurtenances thereof,
whether requiring structural or nonstructural repairs, caused by or resulting
from any act, omission, neglect or improper conduct of, or Alterations made by,
or the moving of Tenant's fixtures, furniture or equipment into, within or out
of the Premises by Tenant, Tenant's agents, contractors, subcontractors,
employees, invitees or licensees, and all damage to any portion of the
Building's Systems existing in the Premises, shall be repaired at Tenant's
expense. Such repairs shall be made by (i) Tenant, at Tenant's expense, if the
required repairs are nonstructural in nature and do not affect any Building
System and/or if any damaged portion of the sprinkler system is contained within
the Premises, or (ii) Landlord, at Tenant's expense, if the required repairs are
structural in nature, involve replacement of exterior window glass (if damaged
by Tenant) or affect any Building System or any portion of the sprinkler system
not contained within the Premises. All Tenant repairs shall be of a quality at
least equal to the original work or construction utilizing new construction
materials and shall be made in accordance with this Lease. Tenant shall give
Landlord prompt notice of any defective condition of which Tenant is aware
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in any Building System located in, servicing or passing through the Premises. If
Tenant fails after 10 days' notice (or such shorter period as may be required in
an emergency) to proceed with due diligence to make any repairs required to be
made by Tenant, Landlord may make such repairs and all costs and expenses
incurred by Landlord on account thereof, plus interest thereon at the Interest
Rate, shall be paid by Tenant within 10 days after Landlord delivers to Tenant
an invoice therefor.
SECTION 7.3 INTERRUPTIONS DUE TO REPAIRS. Landlord reserves the right to
make all changes, alterations, additions, improvements, repairs or replacements
to the Building, including the Building Systems which provide services to
Tenant, as Landlord deems necessary or desirable, provided that in no event
shall the level of any building service decrease in any material respect from
the level required of Landlord in this Lease as a result thereof (other than
temporary changes in the level of such services during the performance of any
such work by Landlord). Landlord shall use reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises during the making
of such repairs, alterations, additions, improvements, repairs or replacements
provided that Landlord shall have no obligation to employ contractors or labor
at overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever. There shall be no Rent abatement or allowance to
Tenant for a diminution of rental value, no actual or constructive eviction of
Tenant, in whole or in part, no relief from any of Tenant's other obligations
under this Lease, and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making, or failing to make, any repairs, alterations, additions or
improvements in or to any portion of the Building or the Premises, or in or to
fixtures, appurtenances or equipment therein.
ARTICLE 8
INCREASES IN TAXES AND OPERATING EXPENSES
SECTION 8.1 DEFINITIONS. For the purposes of this Article 8, the
following terms shall have the meanings set forth below:
(a) "ASSESSED VALUATION" shall mean the amount for which the Real
Property is assessed for the purpose of imposition of Taxes.
(b) "COMPARISON YEAR" shall mean any calendar year ending after the
Rent Commencement Date all or any part of which falls within the Term.
(c) "OPERATING EXPENSES" shall mean the aggregate of all costs and
expenses (and taxes, if any, thereon) paid or incurred by or on behalf of
Landlord (whether directly or through independent contractors) in connection
with the ownership, operation, repair and maintenance of the Building and the
Real Property, such as: (i) insurance premiums, (ii) the cost of electricity,
gas, oil, steam, water, air conditioning and other fuel and utilities, (iii)
attorneys' fees and disbursements and auditing, management and other
professional fees and expenses, (iv) wages, salaries and benefits for off-site
accountants reasonably allocable to the Building, (v) reasonable rent for the
management office of the Building, and (vi) any capital improvement as described
in items (1) or (2) below which shall be installed by Landlord in the Building.
Such capital improvements shall be amortized on a straight-line basis over such
period as Landlord shall reasonably determine (with interest accruing on the
unamortized portion thereof at the Base Rate in effect at the time such
improvements are substantially completed per annum), and the amount included in
Operating Expenses in any Comparison Year (until such improvement has been fully
amortized) shall be equal to the annual amortized amount. A capital improvement
shall be included in Operating Expenses only if it either (1) results in a
reduction in Operating Expenses (as for example, a labor-saving improvement),
provided, the amount included in Operating Expenses in any Comparison Year shall
not exceed an amount equal to the savings resulting from the installation and
operation of such improvement, and/or (2) is made during any Comparison Year in
compliance with Requirements. Operating Expenses shall not include any Excluded
Expenses. If during all or part of any Comparison Year, Landlord shall not
furnish any particular item(s) of work or service (which would otherwise
constitute an Operating Expense) to any leasable portions of the Building for
any reason, then, for purposes of computing Operating Expenses for such
Comparison Year, as the case may be, the amount included in Operating Expenses
for such period shall be increased by an amount equal to the costs and expenses
that would have been reasonably incurred by Landlord during such period if
Landlord had furnished such item(s) of work or service to such portion of the
Building. In determining the amount of Operating Expenses for any Comparison
Year, if less than 95 percent of the Building rentable area shall have been
occupied by tenant(s) at any time during Comparison Year, variable Operating
Expenses shall be determined for such Comparison Year to be an amount equal to
the like expenses which would normally be expected to be incurred had such
occupancy been 95 percent throughout such Comparison Year.
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(d) "STATEMENT" shall mean a statement containing a comparison of
(1) the Base Taxes and the Taxes payable for any Comparison Year, or (2) the
Base Operating Expenses and the Operating Expenses payable for any Comparison
Year.
(e) "TAX YEAR" shall mean the calendar year (or such other period as
hereinafter may be duly adopted by the County of Xxxx as its fiscal year for
real estate tax purposes).
(f) "TAXES" shall mean (i) all real estate taxes, assessments, sewer
and water rents, rates and charges and other governmental levies, impositions or
charges, whether general, special, ordinary, extraordinary, foreseen or
unforeseen, which may be assessed, levied or imposed upon all or any part of the
Real Property, and (ii) all expenses (including reasonable attorneys' fees and
disbursements and experts' and other witnesses' fees) incurred in contesting any
of the foregoing or the Assessed Valuation of all or any part of the Real
Property. Taxes shall include any and all payments in lieu of taxes made from
time to time by Landlord to the currently tax-exempt owner of a portion of the
Land pursuant to Article II of the Lease Agreement dated May 18, 1966 by and
between Chicago Title and Trust Company, as Trustee under Trust No. 49367 and
The Baptist Theological Union, located at Chicago. Taxes shall not include (x)
interest or penalties incurred by Landlord as a result of Landlord's late
payment of Taxes, except for interest payable in connection with the installment
payment of assessments pursuant to the next sentence or (y) franchise, transfer,
inheritance, gift, estate or net income taxes imposed upon Landlord. For
purposes hereof, "Taxes" for any calendar year shall be deemed to be the Taxes
which are assessed, levied or imposed for such calendar year regardless of when
due or paid. If any assessment is payable in annual installments, then for the
purposes of this Article 8, (A) such assessment shall be deemed to have been so
divided and to be payable in the maximum number of installments permitted by
law, and (B) there shall be deemed included in Taxes for each Comparison Year
the installments of such assessment becoming payable during such Comparison
Year, together with interest payable during such Comparison Year on such
installments and on all installments thereafter becoming due as provided by law,
all as if such assessment had been so divided. If at any time the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of or as
an addition to the whole or any part of Taxes, there shall be assessed, levied
or imposed (1) a tax, assessment, levy, imposition or charge based on the income
or rents received from the Real Property whether or not wholly or partially as a
capital levy or otherwise, (2) a tax, assessment, levy, imposition or charge
measured by or based in whole or in part upon all or any part of the Real
Property and imposed upon Landlord, (3) a license fee measured by the rents, or
(4) any other tax, assessment, levy, imposition, charge or license fee however
described or imposed, then all such taxes, assessments, levies, impositions,
charges or license fees or the part thereof so measured or based shall be deemed
to be Taxes, provided that any tax, assessment, levy, imposition or charge
imposed on income from the Real Property shall be calculated as if the Real
Property were the only asset of Landlord.
SECTION 8.2 TENANT'S TAX PAYMENT.
(a) If the Taxes for any Comparison Year exceed the Base Taxes,
Tenant shall pay to Landlord Tenant's Proportionate Share of such excess
("Tenant's Tax Payment"). For each Comparison Year, Landlord shall furnish to
Tenant a written statement setting forth Landlord's good faith reasonable
estimate of Tenant's Tax Payment for such Comparison Year, based upon such
year's budget for Taxes. Tenant shall pay to Landlord on the first day of each
month during such Comparison Year an amount equal to one-twelfth of Landlord's
estimate of Tenant's Tax Payment for such Comparison Year. If, however, Landlord
shall furnish any such estimate for a Comparison Year subsequent to the
commencement thereof, then (i) until the first day of the month following the
month in which such estimate is furnished to Tenant, Tenant shall pay to
Landlord on the first day of each month an amount equal to the monthly sum
payable by Tenant to Landlord under this Section 8.2 during the last month of
the preceding Comparison Year, (ii) promptly after such estimate is furnished to
Tenant or together therewith, Landlord shall give notice to Tenant stating
whether the installments of Tenant's Tax Payment previously made for such
Comparison Year were greater or less than the installments of Tenant's Tax
Payment to be made for such Comparison Year in accordance with such estimate,
and (A) if there shall be a deficiency, Tenant shall pay the amount thereof
within 10 business days after demand therefor, or (B) if there shall have been
an overpayment, Landlord shall credit the amount thereof against subsequent
payments of Rent due hereunder, and (iii) on the first day of the month
following the month in which such estimate is furnished to Tenant, and on the
first day of each month thereafter throughout the remainder of such Comparison
Year, Tenant shall pay to Landlord an amount equal to one-twelfth of Tenant's
Tax Payment shown on such estimate.
(b) As soon as reasonably practicable after Landlord has determined
the Taxes for a Comparison Year, Landlord shall furnish to Tenant a Statement
for such Comparison Year. If the Statement shall show that the sums paid by
Tenant under Section 8.2(a) exceeded the actual amount of Tenant's Tax Payment
for such Comparison Year, Landlord shall credit the amount of such excess
against subsequent payments of Rent due hereunder. If the Statement for such
Comparison Year shall show that the sums so paid by Tenant were less than
Tenant's Tax Payment for such Comparison Year, Tenant shall pay the amount of
such deficiency within ten (10) business days after Tenant's receipt of the
Statement.
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(c) If the applicable real estate tax fiscal year is changed, Taxes
for such fiscal year shall be apportioned on the basis of the number of days in
such fiscal year included in the particular Comparison Year for the purpose of
making the computations under this Section 8.2.
(d) Only Landlord shall be eligible to institute proceedings to
reduce the Assessed Valuation of the Real Property and the filings of any such
proceeding by Tenant without Landlord's prior written consent shall constitute
an Event of Default. If the Base Taxes are defined as the Taxes for a particular
calendar year and if such Taxes are reduced, the Base Taxes shall be
correspondingly revised, the Additional Rent previously paid or payable on
account of Tenant's Tax Payment hereunder for all Comparison Years shall be
recomputed on the basis of such reduction, and Tenant shall pay to Landlord
within 30 business days after being billed therefor, any deficiency between the
amount of such Additional Rent previously computed and paid by Tenant to
Landlord, and the amount due as a result of such recomputations. If the Base
Taxes are defined as the Taxes for a particular calendar year and if such Taxes
are increased then Landlord shall either pay to Tenant, or at Landlord's
election, credit against subsequent payments of Rent due, the amount by which
such Additional Rent previously paid on account of Tenant's Tax Payment exceeds
the amount actually due as a result of such recomputations. If Landlord receives
a refund of Taxes for any Comparison Year, Landlord shall, at its election,
either pay to Tenant, or credit against subsequent payments of Rent due
hereunder, an amount equal to Tenant's Proportionate Share of the refund, net of
any expenses incurred by Landlord in achieving such refund, which amount shall
not exceed Tenant's Tax Payment paid for such Comparison Year. Landlord shall
not be obligated to file any application or institute any proceeding seeking a
reduction in Taxes or the Assessed Valuation.
(e) Tenant shall be obligated to make Tenant's Tax Payment
regardless of whether Tenant may be exempt from the payment of any taxes by
reason of Tenant's diplomatic or other tax exempt status.
(f) If the Rent Commencement Date shall occur on a date other than
January 1, any Additional Rent under this Section 8.2 for the calendar year in
which such Rent Commencement Date shall occur shall be apportioned on the basis
of the number of days in the period from the Rent Commencement Date to the
following December 31 bears to the total number of days in such Comparison Year.
If the Expiration Date shall occur on a date other than December 31, any
Additional Rent payable by Tenant to Landlord under this Section 8.2 for the
Comparison Year in which such Expiration Date occurs shall be apportioned on the
basis of the number of days in the period from January 1 to the Expiration Date
shall bear to the total number of days in such Comparison Year. In the event of
the expiration or earlier termination of this Lease, any Additional Rent under
this Section 8.2 owed by Tenant shall be paid by Tenant, and any over payments
not credited against Rent payable hereunder shall be refunded by Landlord within
30 days after submission of the Statement for the last Comparison Year. In no
event shall Fixed Rent ever be reduced by operation of this Section 8.2 and the
rights and obligations of Landlord and Tenant under the provisions of this
Section 8.2 with respect to any Additional Rent shall survive the expiration or
earlier termination of this Lease.
(g) Tenant shall be responsible for any applicable occupancy or rent
tax now in effect or hereafter enacted and, if payable by Landlord, Tenant shall
promptly pay such amounts to Landlord, upon Landlord's demand, as Additional
Rent.
SECTION 8.3 TENANT'S OPERATING PAYMENT.
(a) If the Operating Expenses payable for any Comparison Year exceed
the Base Operating Expenses, Tenant shall pay to Landlord Tenant's Proportionate
Share of such excess ("Tenant's Operating Payment"). For each Comparison Year,
Landlord shall furnish to Tenant a written statement setting forth Landlord's
good faith reasonable estimate of Tenant's Operating Payment for such Comparison
Year, based upon such year's budget. Tenant shall pay to Landlord on the first
day of each month during such Comparison Year an amount equal to one-twelfth of
Landlord's estimate of Tenant's Operating Payment for such Comparison Year. If,
however, Landlord shall furnish any such estimate for a Comparison Year
subsequent to the commencement thereof, then (i) until the first day of the
month following the month in which such estimate is furnished to Tenant, Tenant
shall pay to Landlord on the first day of each month an amount equal to the
monthly sum payable by Tenant to Landlord under this Section 8.3 during the last
month of the preceding Comparison Year, (ii) promptly after such estimate is
furnished to Tenant or together therewith, Landlord shall give notice to Tenant
stating whether the installments of Tenant's Operating Payment previously made
for such Comparison Year were greater or less than the installments of Tenant's
Operating Payment to be made for such Comparison Year in accordance with such
estimate, and (A) if there shall be a deficiency, Tenant shall pay the amount
thereof within 30 business days after demand therefor, or (B) if there shall
have been an overpayment, Landlord shall credit the amount thereof against
subsequent payments of Rent due hereunder, and (iii) on the first day of the
month following the month in which such estimate is furnished to Tenant, and on
the first day of each month thereafter throughout the remainder of such
Comparison Year, Tenant shall pay to Landlord an amount equal to one-twelfth of
Tenant's Operating Payment shown on such estimate.
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(b) On or before May 1st of each Comparison Year, Landlord shall
furnish to Tenant a Statement for the immediately preceding Comparison Year.
Each such Statement shall be accompanied by a computation of Operating Expenses
for the Building prepared by Landlord's managing agent. If the Statement shall
show that the sums paid by Tenant under Section 8.3(a) exceeded the actual
amount of Tenant's Operating Payment for such Comparison Year, Landlord shall
credit the amount of such excess against subsequent payments of Rent due
hereunder. If the Statement for such Comparison Year shall show that the sums so
paid by Tenant were less than Tenant's Operating Payment for such Comparison
Year, Tenant shall pay the amount of such deficiency within 30 business days
after Tenant's receipt of the Statement.
(c) If the Rent Commencement Date shall occur on a date other than
January 1, any Additional Rent under this Section 8.3 for the calendar year in
which such Rent Commencement Date shall occur shall be apportioned on the basis
of the number of days in the period from the Rent Commencement Date to the
following December 31 bears to the total number of days in such Comparison
Year.If the Expiration Date shall occur on a date other than December 31, any
Additional Rent under this Section 8.3 for the Comparison Year in which such
Expiration Date shall occur shall be apportioned on the basis of the number of
days in the period from January 1 to the Expiration Date. Upon the expiration or
earlier termination of this Lease, any Additional Rent owed by Tenant under this
Article 8 shall be paid by Tenant and any over payments not credited to Rent
payable hereunder shall be refunded by Landlord within 30 days after submission
of the Statement for the last Comparison Year. In no event shall Fixed Rent ever
be reduced by operation of this Section 8.3 and the rights and obligations of
Landlord and Tenant under the provisions of this Section 8.3 with respect to any
Additional Rent shall survive the expiration or earlier termination of this
Lease.
SECTION 8.4 FORMULA. The computations of Additional Rent under this
Article 8 are intended to constitute a formula for an agreed rental adjustment
and may or may not constitute an actual reimbursement to Landlord for Taxes,
costs and expenses paid by Landlord with respect to the Building.
SECTION 8.5 NON-WAIVER; DISPUTES.
(a) Landlord's failure to render any Statement on a timely basis
with respect to any Comparison Year shall not prejudice Landlord's right to
thereafter render a Statement with respect to such Comparison Year or any
subsequent Comparison Year, nor shall the rendering of a Statement prejudice
Landlord's right to thereafter render a corrected Statement for that Comparison
Year.
(b) Each Statement sent to Tenant shall be conclusively binding upon
Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay
to Landlord the amount set forth in such Statement, without prejudice to
Tenant's right to dispute such Statement, and (ii) within 60 days after such
Statement is sent, send a written notice to Landlord objecting to such Statement
and specifying the reasons that such Statement is claimed to be incorrect. If
the parties are unable to resolve any dispute as to the correctness of such
Statement within 30 days following such notice of objection, either party may
refer the issues raised to an independent firm of certified public accountants
which is a so-called "big-six" public accounting firm selected by Landlord and
reasonably acceptable to Tenant, and the decision of such accountants shall be
conclusively binding upon Landlord and Tenant. In connection therewith, Tenant
and such accountants shall execute and deliver to Landlord a confidentiality
agreement, in form and substance reasonably satisfactory to Landlord, whereby
such parties agree not to disclose to any third party any of the information
obtained in connection with such review. The fees and expenses relating to such
procedure shall be borne by the unsuccessful party (and if both parties are
partially unsuccessful, the accountants shall apportion the fees and expenses
between the parties based on the degree of success of each party).
ARTICLE 9
REQUIREMENTS OF LAW
SECTION 9.1 COMPLIANCE.
(a) TENANT'S COMPLIANCE. Tenant, at its expense, shall comply (or
cause to be complied) with all Requirements applicable to the Premises,
regardless of whether imposed by their terms upon Landlord or Tenant. All
repairs and alterations to the Premises, whether structural or nonstructural,
ordinary or extraordinary, required to be made to cause the Premises to comply
with any Requirements and which arise as a result of (i) the specific manner and
nature of Tenant's use or occupancy of the Premises, as distinct from general
office use, (ii) Alterations made by Tenant in the Premises or (iii) a breach by
Tenant of any provisions of this Lease, shall be made by Tenant, at Tenant's
expense and in compliance with Article 6, if such repairs or alterations are
nonstructural and do not affect any Building System, or by Landlord, at Tenant's
expense, if such repairs or alterations are structural or affect any Building
System. If Tenant obtains knowledge of any failure to comply with any
Requirements applicable to the Premises, Tenant shall give Landlord prompt
written notice thereof.
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(b) HAZARDOUS MATERIALS. Tenant shall not (i) cause or permit any
Hazardous Materials to be brought into the Building, (ii) cause or permit the
storage or use of Hazardous Materials in any manner not permitted by any
Requirements, or (iii) cause or permit the escape, disposal or release of any
Hazardous Materials within or in the vicinity of the Building. Nothing herein
shall be deemed to prevent Tenant's use of any Hazardous Materials customarily
used in the ordinary course of office work, provided such use is in accordance
with all Requirements. Tenant shall be responsible, at its expense, for all
matters directly or indirectly based on, or arising or resulting from, the
actual or alleged presence of Hazardous Materials in the Premises or in the
Building which is caused or permitted by Tenant. Tenant shall provide to
Landlord copies of all communications received by Tenant with respect to any
Requirements relating to Hazardous Materials, and/or any claims made in
connection therewith. Landlord or its agents may perform environmental
inspections of the Premises at any time. The covenants contained in this
subsection shall survive the expiration or earlier termination of this Lease.
Notwithstanding the foregoing, Landlord shall remove or encapsulate any asbestos
which is in the Premises as of the Commencement Date.
(c) LANDLORD'S COMPLIANCE. Landlord shall comply with (or cause to
be complied with) all Requirements applicable to the Building which are not the
obligation of Tenant, to the extent that non-compliance would materially impair
Tenant's use and occupancy of the Premises and Tenant's ability to conduct its
business in the Premises for office use; and the cost thereof shall be included
in Operating Expenses pursuant to Section 8.1(c) of this Lease.
(d) LANDLORD'S INSURANCE. Tenant shall not cause or permit any
action or condition that would (i) invalidate or conflict with Landlord's
insurance policies, (ii) violate applicable rules, regulations and guidelines of
the Fire Department, Fire Insurance Rating Organization or any other authority
having jurisdiction over the Building, or (iii) cause an increase in the
premiums of fire insurance then covering the Building over that payable with
respect to comparable first-class office buildings or (iv) result in insurance
companies of good standing refusing to insure the Building or any property
therein in amounts and against risks as reasonably determined by Landlord. If
the fire insurance premiums increase as a result of Tenant's failure to comply
with the provisions of this Article 9, Tenant shall promptly cure such failure
and shall reimburse Landlord, as Additional Rent, for the increased fire
insurance premiums paid by Landlord as a result of such failure by Tenant. In
any action or proceeding to which Landlord and Tenant are parties, a schedule or
"make up" of rates for the Building or the Premises issued by the appropriate
Fire Insurance Rating Organization, or other body fixing such fire insurance
rates, shall be conclusive evidence of the fire insurance rates then applicable
to the Building.
SECTION 9.2 FIRE ALARM SYSTEM. If the Fire Insurance Rating Organization
or any Governmental Authority or any of Landlord's insurers requires or
recommends any modifications and/or Alterations be made or any additional
equipment be supplied in connection with the fire alarm and life-safety system
serving the Building or the Premises by reason of Tenant's business, or the
location of the partitions, trade fixtures, or other contents of the Premises,
Landlord (to the extent outside of the Premises) or Tenant (to the extent within
the Premises) shall make such modifications and/or Alterations, and supply such
additional equipment, in either case at Tenant's expense.
SECTION 9.3 LIMITATIONS ON RENT. If at any time during the Term by
reason of any Requirement, the Rent is not fully collectible, Tenant shall take
such other steps (without additional expense to Tenant) as Landlord may request,
and as may be legally permissible, to permit Landlord to collect the maximum
rents which may during the continuance of such restriction be legally
permissible (but not in excess of the Rent reserved under this Lease). Upon the
termination of such restriction during the Term, Tenant shall pay to Landlord,
in addition to the Rent for the period following such termination of the
restriction, if legally permissible, the portion of Rent which would have been
paid pursuant to this Lease but for such legal restriction less the Rent paid by
Tenant to Landlord while such restriction was in effect, together with interest
thereon at the Base Rate.
ARTICLE 10
SUBORDINATION
SECTION 10.1 SUBORDINATION AND ATTORNMENT.
(a) Subject to Section 10.5, this Lease is subject and subordinate
to all Mortgages and Superior Leases, and, at the request of any Mortgagee or
Lessor, Tenant shall attorn to such Mortgagee or Lessor, its successors in
interest or any purchaser in a foreclosure sale.
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(b) If a Lessor or Mortgagee or any other person or entity shall
succeed to the rights of Landlord under this Lease, whether through possession
or foreclosure action or the delivery of a new lease or deed, then at the
request of the successor landlord and upon such successor landlord's written
agreement to accept Tenant's attornment and to recognize Tenant's interest under
this Lease, Tenant shall be deemed to have attorned to and recognized such
successor landlord as Landlord under this Lease. The provisions of this Article
10 are self-operative and require no further instruments to give effect hereto;
provided, however, that Tenant shall promptly execute and deliver any instrument
that such successor landlord may reasonably request (i) evidencing such
attornment, (ii) setting forth the terms and conditions of Tenant's tenancy, and
(iii) containing such other terms and conditions as may be required by such
Mortgagee or Lessor, provided such terms and conditions do not materially
increase Tenant's obligations or materially and adversely affect the rights of
Tenant under this Lease. Such instruments may include a new lease with the
successor landlord identical to this Lease but for the then remaining Term. Upon
such attornment this Lease shall continue in full force and effect as a direct
lease between such successor landlord and Tenant upon all of the terms,
conditions and covenants set forth in this Lease except that such successor
landlord shall not be:
(A) liable for any act or omission of Landlord (except
to the extent such act or omission continues beyond the date when such successor
landlord succeeds to Landlord's interest and Tenant gives notice of such act or
omission);
(B) subject to any defense, claim, counterclaim, set-off
or offsets which Tenant may have against Landlord;
(C) bound by any prepayment of more than one month's
Rent to any prior landlord, except with respect to a termination payment;
(D) 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;
(E) bound by any obligation to perform any work or to
make improvements to the Premises except for (x) repairs and maintenance
required to be made by Landlord under this Lease, and (y) repairs to the
Premises as a result of damage by fire or other casualty or a partial
condemnation pursuant to the provisions of this Lease, but only to the extent
that such repairs can reasonably be made from the net proceeds of any insurance
or condemnation awards, respectively, actually made available to such successor
landlord; or
(F) bound by any modification, amendment, renewal, or
termination of this Lease made without successor landlord's consent; or
(G) personally liable under the Lease, Mortgagee's
liability thereunder being limited to its interest in the Real Property.
SECTION 10.2 MORTGAGE OR SUPERIOR LEASE DEFAULTS. Tenant shall not cause
a default under any Superior Lease or Mortgage, or omit to do anything that
Tenant is obligated to do under the terms of this Lease so as to cause Landlord
to be in default thereunder. Any Mortgagee may elect that this Lease shall have
priority over the Mortgage that it holds and, upon notification to Tenant by
such Mortgagee, this Lease shall be deemed to have priority over such Mortgage,
regardless of the date of this Lease. In connection with any financing of the
Real Property, the Building or of the interest of the lessee under any Superior
Lease, Tenant shall consent to any reasonable modifications of this Lease
requested by any lending institution, provided such modifications do not
materially increase the obligations, or materially and adversely affect the
rights, of Tenant under this Lease.
SECTION 10.3 TENANT'S TERMINATION RIGHT. Tenant agrees to give any
Lessor or Mortgagee, by registered or certified mail, a copy of any notice of
default served upon the 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 Lessor or
Mortgagee. Tenant further agrees that if Landlord shall have failed to cure such
default within thirty (30) 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 thirty (30) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the Lessor or Mortgagee 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
such Lessor or Mortgagee 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 Lessor or Mortgagee 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.
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SECTION 10.4 PROVISIONS. The provisions of this Article 10 shall (a)
inure to the benefit of Landlord, any future owner of the Building or the Real
Property, Lessor or Mortgagee and any sublessor thereof and (b) apply
notwithstanding that, as a matter of law, this Lease may terminate upon the
termination of any such Superior Lease or Mortgage.
SECTION 10.5 NON-DISTURBANCE AGREEMENTS. Landlord hereby agrees to
obtain for Tenant a Subordination, Non-Disturbance and Attornment Agreement in
the form attached hereto as Exhibit G with Landlord and Landlord's existing
mortgagee. Landlord hereby agrees to use reasonable efforts to obtain for Tenant
a subordination, non-disturbance and attornment agreement (a "SNDA") from all
future Mortgagees, in the standard form customarily employed by such Mortgagee,
provided that Landlord shall have no liability to Tenant in the event that it is
unable to obtain any such agreements.
ARTICLE 11
SERVICES
SECTION 11.1 ELEVATORS. Landlord, at its expense, shall provide
passenger elevator service to the Premises at all times, and at least one
freight elevator serving the Premises available upon Tenant's prior request, on
a non-exclusive "first come, first serve" basis with other Building tenants, on
all Business Days from 7:00 a.m. to 3:30 p.m.
SECTION 11.2 HEATING, VENTILATION AND AIR CONDITIONING.
(a) Landlord shall furnish to the Premises heating, ventilation and
air-conditioning ("HVAC") in accordance with the standards set forth in Exhibit
D on all Business Days from 8:00 a.m. to 6:00 p.m. and on Saturdays which are
not Holidays from 8:00 a.m. to 1:00 p.m. Landlord, at its expense, shall repair
and maintain the HVAC System in good working order, provided repairs required as
a result of the negligence or willful misconduct of Tenant, its agents or
employees, shall be performed at Tenant's expense. Landlord shall have access to
all air-cooling, fan, ventilating and machine rooms and electrical closets and
all other mechanical installations of Landlord (collectively, "Mechanical
Installations"), and Tenant shall not construct partitions or other obstructions
which may interfere with Landlord's access thereto or the moving of Landlord's
equipment to and from the Mechanical Installations. Neither Tenant, nor its
agents, employees or contractors shall at any time enter the Mechanical
Installations or tamper with, adjust, or otherwise affect such Mechanical
Installations.
(b) Landlord shall not be responsible if the normal operation of the
Building System providing HVAC to the Premises (the "HVAC System") shall fail to
provide cooled or heated air, as the case may be, in accordance with the
specifications set forth in Exhibit D by reason of (i) any machinery or
equipment installed by or on behalf of Tenant or any person claiming through or
under Tenant, which shall have an electrical load in excess of the average
electrical load and human occupancy factors for the HVAC System as designed, as
the case may be, or (ii) any rearrangement of partitioning or other Alterations
(including the Initial Installations) made or performed by or on behalf of
Tenant or any person claiming through or under Tenant. Tenant shall install, if
missing, blinds or shades on all windows, which blinds and shades are subject to
Landlord's approval, and shall keep all of the operable windows in the Premises
closed and lower the blinds when necessary because of the sun's position,
whenever the HVAC System is in operation or when and as reasonably required by
any Requirement. Tenant at all times shall cooperate fully with Landlord and
shall abide by the rules and regulations which Landlord may reasonably prescribe
for the proper functioning and protection of the HVAC System.
SECTION 11.3 OVERTIME FREIGHT ELEVATORS AND HVAC. The Rent does not
reflect or include any charge to Tenant for the furnishing of any freight
elevator service or HVAC to the Premises during any periods other than for the
hours and days set forth in Sections 11.1 and 11.2 hereof ("Overtime Periods").
Landlord shall not be required to furnish any such services during Overtime
Periods unless Tenant delivers written notice to Landlord's property management
office requesting such services at least 24 hours prior to the time at which
such services are to be provided for freight elevator service and by 2:00 p.m.
on the Business Day on which HVAC services are to be provided or by 2:00 p.m. on
the preceding Business Day if such services are requested in the morning or on
Saturday, Sunday or a Holiday, but Landlord shall use reasonable efforts
(without obligation to incur any additional cost) to arrange such service on
such shorter notice as Tenant shall provide. If Landlord furnishes freight
elevator service to the Premises during Overtime Periods, Tenant shall pay to
Landlord Landlord's then established rates for such service in the Building. If
Landlord shall furnish HVAC to the Premises during Overtime Periods, Tenant
shall pay to Landlord Landlord's then established rates for such service in the
Building.
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SECTION 11.4 CLEANING. Landlord shall cause the Premises (excluding any
portions thereof used as a kitchen or cafeteria (other than a pantry)) to be
cleaned, substantially in accordance with the standards set forth in Exhibit E.
Any areas of the Premises requiring additional cleaning such as areas used for
preparation or consumption of food, shall be cleaned, at Tenant's expense, by
Landlord's employees or Landlord's contractor, at rates which shall be
competitive with rates of other cleaning contractors providing services to
Comparable Buildings. Landlord and its cleaning contractor and their respective
employees shall have access to the Premises at all times except between 8:00
A.M. and 5:30 P.M. on Business Days.
SECTION 11.5 WATER. Landlord will provide cold and hot water for
lavatory purposes in the Building restrooms. Landlord shall provide to the
Premises cold water for drinking, cleaning and lavatory purposes through
fixtures and pipes installed by Tenant at its expense. If Tenant requires or
uses cold water for any additional purposes, Landlord may install a meter to
measure the water furnished. Tenant shall pay the cost of such installation, and
for all maintenance, repairs and replacements thereto, and for the reasonable
charges of Landlord for the water furnished. Tenant shall also pay Landlord
reasonable charges for any required pumping or heating thereof, and any sewer
rent, tax and/or charge now or hereafter assessed or imposed upon the Premises
or the Real Property pursuant to any Requirement.
SECTION 11.6 REFUSE AND RUBBISH REMOVAL. Landlord shall provide refuse
and rubbish removal services at the Premises for ordinary office refuse and
rubbish pursuant to regulations reasonably established by Landlord. Tenant shall
pay to Landlord, within 10 Business Days of receipt of an invoice therefor,
Landlord's reasonable charge for such removal to the extent that the refuse
generated by Tenant exceeds the refuse and rubbish customarily generated by
executive and general office tenants. Tenant shall not dispose of any refuse and
rubbish in the public areas of the Building, and if Tenant does so, Tenant shall
be liable for Landlord's reasonable charge for such removal. Tenant shall cause
its employees, agents, contractors and business visitors to observe such
additional rules and regulations regarding rubbish removal and/or recycling as
Landlord may, from time to time, reasonably impose.
SECTION 11.7 SERVICE INTERRUPTIONS. Landlord reserves the right to
suspend any service when necessary, by reason of Unavoidable Delays, accidents
or emergencies, or for repairs, alterations or improvements which, in Landlord's
reasonable judgment, are necessary or appropriate until such Unavoidable Delay,
accident or emergency shall cease or such repairs, alterations or improvements
are completed and Landlord shall not be liable for any interruption, curtailment
or failure to supply services. Landlord shall use reasonable efforts to restore
such service, remedy such situation and minimize any interference with Tenant's
business, provided that Landlord shall have no obligation to employ contractors
or labor at overtime or other premium pay rates, or to incur any other overtime
costs or additional expenses whatsoever. The exercise of any such right or the
exercise of any such right or the occurrence of any such failure by Landlord
shall not constitute an actual or constructive eviction, in whole or in part,
entitle Tenant to any compensation, abatement or diminution of Rent, relieve
Tenant from any of its obligations under this Lease, or impose any liability
upon Landlord or its agents by reason of inconvenience to Tenant, or
interruption of Tenant's business, or otherwise.
SECTION 11.8 RENT ABATEMENT FOR INTERRUPTIONS AND REPAIRS.
Notwithstanding anything in Section 7.3, Section 11.7 and Article 26 to the
contrary, if (a) any repairs, alterations or improvements performed by Landlord
pursuant to Section 7.3 or any service interruption pursuant to Section 11.7
(collectively "Repairs/Interruptions") renders any portion of the Premises in
excess of 500 rentable square feet untenantable, (b) Tenant notifies Landlord in
writing of the Repairs/Interruptions and the portion of the Premises which is
untenantable, (c) such untenantability continues for 5 consecutive Business Days
after such notice to Landlord, (d) such Repairs/Interruption were not caused by
fire or casualty, the act or omission of Tenant, its employees or agents, or
Unavoidable Delays and (e) Tenant is not using the untenantable portion for
business purposes or its operations (other than access to other portions of the
Premises), then Rent shall xxxxx on a per diem basis proportionately to the
portion of the Premises rendered untenantable and unused by Tenant from the 5th
Business Day after such notice to Landlord until said portion of the Premises
are again rendered tenantable or is used by Tenant. For purposes of this Section
11.8 a portion of the Premises shall be untenantable if Tenant does not have
access to such space.
ARTICLE 12
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INSURANCE; PROPERTY LOSS OR DAMAGE; REIMBURSEMENT
SECTION 12.1 TENANT'S INSURANCE.
(a) Tenant, at its expense, shall obtain and keep in full force and
effect during the Term:
(i) a policy of commercial general liability insurance on an
occurrence basis against claims for personal injury, death and/or property
damage occurring in or about the Premises or the Building, under which Tenant is
named as the insured and Landlord, Landlord's managing agent, any Lessors, any
Mortgagees and any other parties whose names shall have been furnished by
Landlord to Tenant from time to time are named as additional insureds, which
insurance shall provide primary coverage without contribution from any other
insurance carried by or for the benefit of Landlord, Landlord's managing agent
or any Lessors or Mortgagees named as additional insureds, and Tenant agrees to
obtain blanket broad-form contractual liability coverage to insure its indemnity
obligations set forth in Article 32 hereof. The minimum limits of liability
shall be a combined single limit with respect to each occurrence in an amount of
not less than $5,000,000, provided, however, that Landlord shall retain the
right to require Tenant to increase such coverage from time to time to that
amount of insurance which in Landlord's reasonable judgment is then being
customarily required by landlords for similar office space in first-class
buildings in the City of Chicago. The deductible or self insured retention for
such policy shall in no event exceed $10,000 at any time. If the aggregate limit
applying to the Premises is reduced by the payment of a claim or establishment
of a reserve equal to or greater than 50% of the annual aggregate, Tenant shall
immediately arrange to have the aggregate limit restored by endorsement to the
existing policy or the purchase of an additional insurance policy unless, in
Landlord's reasonable judgment, Tenant maintains sufficient excess liability
insurance to satisfy the liability requirements of this Lease without the
reinstatement of the aggregate limit;
(ii) insurance against loss or damage by fire, and such other
risks and hazards as are insurable under then available standard forms of "all
risk" property insurance policies with extended coverage, insuring Tenant's
Property, and all Specialty Alterations for the full insurable value thereof or
replacement cost value thereof, having a deductible amount, if any, as
reasonably determined by Landlord but not to exceed $25,000;
(iii) during the performance of any Alteration, until
completion thereof, Builder's risk insurance on an "all risk" basis and on a
completed value form including a Permission to Complete and Occupy endorsement,
for full replacement value covering the interest of Landlord and Tenant (and
their respective contractors and subcontractors), any Mortgagee and any Lessor
in all work incorporated in the Building and all materials and equipment in or
about the Premises;
(iv) Workers' Compensation Insurance, as required by law;
(v) Disability Benefits Policy Insurance, if required by law;
(vi) Business Interruption Insurance; and
(vii) such other insurance in such amounts as Landlord, any
Mortgagee and/or any Lessor may reasonably require from time to time.
(b) All insurance required to be carried by Tenant pursuant to the
terms of this Lease (i) shall contain a provision that (x) no act or omission of
Tenant shall affect or limit the obligation of the insurance company to pay the
amount of any loss sustained, (y) the policy shall be noncancellable and/or no
material change in coverage shall be made thereto unless Landlord, Lessors and
Mortgagees shall have received 30 days' prior notice of the same, by certified
mail, return receipt requested, and (z) Tenant shall be solely responsible for
the payment of all premiums under such policies and Landlord, Lessors and
Mortgagees shall have no obligation for the payment thereof, and (ii) shall be
effected under valid and enforceable policies issued by reputable and
independent insurers permitted to do business in the State of Illinois and rated
in Best's Insurance Guide, or any successor thereto (or if there be none, an
organization having a national reputation) as having a "Best's Rating" of "A-"
and a "Financial Size Category" of at least "X" or, if such ratings are not then
in effect, the equivalent thereof or such other financial rating as Landlord may
at any time consider appropriate.
(c) On or prior to the Commencement Date, Tenant shall deliver to
Landlord appropriate policies of insurance, including evidence of waivers of
subrogation required to be carried by each party pursuant to this Article 12.
Evidence of each renewal or replacement of a policy shall be delivered by Tenant
to Landlord at least 10 days prior to the expiration of such policy. In lieu of
the policy of insurance required to be delivered to Landlord pursuant to this
Article 12 (the "Policy"), Tenant may deliver
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to Landlord a certification from Tenant's insurance company (on the form
currently designated "Xxxxx 25-S", or the equivalent) which shall be binding on
Tenant's insurance company, and which shall expressly provide that such
certification (i) conveys to Landlord and any other named insured and/or
additional insureds thereunder (the "Insured Parties") all the rights and
privileges afforded under the Policy as primary insurance, and (ii) contains an
unconditional obligation of the insurance company to advise all Insured Parties
in writing by mail, at least 30 days in advance of any termination or change to
the Policy that would affect the interest of any of the Insured Parties.
SECTION 12.2 WAIVER OF SUBROGATION. Landlord and Tenant shall each
procure an appropriate clause in or endorsement to any property insurance
covering the Premises, the Building and personal property, fixtures and
equipment located therein, wherein the insurance companies shall waive
subrogation or consent to a waiver of right of recovery, and Landlord and Tenant
agree not to make any claim against, or seek to recover from, the other for any
loss or damage to its property or the property of others resulting from fire or
other hazards to the extent covered by such property insurance; provided,
however, that the release, discharge, exoneration and covenant not to xxx
contained herein shall be limited by and coextensive with the terms and
provisions of the waiver of subrogation or waiver of right of recovery. If
either party shall be unable to obtain the inclusion of such clause even with
the payment of an additional premium, then such party shall attempt to name the
other party as a loss payee under the policy. If the payment of an additional
premium is required for either (i) the inclusion of, or consent to, a waiver of
subrogation, or (ii) for naming any party a loss payee, each party shall advise
the other, in writing, of the amount of any such additional premiums and the
other party may pay such additional premium. If such other party shall not elect
to pay such additional premium or if it shall not be possible to have the other
party named as a loss payee, even with the payment of an additional premium,
then the first party shall not be required to obtain such waiver of subrogation
or consent to waiver provision and such party shall so notify the first party
and the first party's agreement to name the other party as an additional insured
shall be satisfied. Tenant acknowledges that Landlord shall not carry insurance
on, and shall not be responsible for, (A) damage to any Specialty Alterations,
(B) Tenant's Property, and (C) any loss suffered by Tenant due to interruption
of Tenant's business.
ARTICLE 13
DESTRUCTION - FIRE OR OTHER CAUSE
SECTION 13.1 RESTORATION. If the Premises are damaged by fire or other
casualty, or if the Building is damaged such that Tenant is deprived of
reasonable access to the Premises, Tenant shall give prompt notice to Landlord,
and the damage shall be repaired by Landlord, at its expense, to substantially
the condition of the Premises prior to the damage, subject to the provisions of
any Mortgage or Superior Lease, but Landlord shall have no obligation to repair
or restore (i) Tenant's Property or (ii) any Specialty Alterations. Until such
time as the restoration of the Premises is substantially completed, Rent shall
be reduced in the proportion by which the area of the part of the Premises which
is not usable (or accessible) and is not used by Tenant bears to the total area
of the Premises.
SECTION 13.2 LANDLORD'S TERMINATION RIGHT. Notwithstanding anything to
the contrary contained in Section 13.1, if the Premises are totally damaged or
are rendered wholly untenantable, or if the Building shall be so damaged that,
in Landlord's opinion, substantial alteration, demolition, or reconstruction of
the Building shall be required (whether or not the Premises are so damaged or
rendered untenantable), then in either of such events, Landlord may, not later
than 60 days following the date of the damage, give Tenant a notice terminating
this Lease, provided that if the Premises are not damaged, Landlord may not
terminate this Lease unless Landlord similarly terminates the leases of other
office tenants in the Building aggregating at least 50% of the portion of the
Building occupied for office purposes immediately prior to such damage. If this
Lease is so terminated, (a) the Term shall expire upon the 30th day after such
notice is given, (b) Tenant shall vacate the Premises and surrender the same to
Landlord, (c) Tenant's liability for Rent shall cease as of the date of the
damage, and (d) any prepaid Rent for any period after the date of the damage
shall be refunded by Landlord to Tenant.
SECTION 13.3 TENANT'S TERMINATION RIGHT. If the Premises are totally
damaged and are thereby rendered wholly untenantable, or if the Building shall
be so damaged that Tenant is deprived of reasonable access to the Premises, and
if Landlord elects to restore the Premises, Landlord shall, within 60 days
following the date of the damage, cause a contractor or architect selected by
Landlord to give notice (the "Restoration Notice") to Tenant of the date by
which such contractor or architect estimates the restoration of the Premises
shall be substantially completed. If such date, as set forth the Restoration
Notice, is more than 18 months from the date of such damage, then Tenant shall
have the right to terminate this Lease by giving notice (the "Termination
Notice") to Landlord not later than 30 days following Tenant's receipt of the
Restoration Notice. If Tenant delivers to Landlord a Termination Notice, this
Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice, in the manner set forth in the second sentence of Section
13.2.
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SECTION 13.4 FINAL 18 MONTHS. Notwithstanding anything set forth to the
contrary in this Article 13, in the event that any damage rendering the Premises
wholly untenantable occurs during the final 18 months of the Term, either
Landlord or Tenant may terminate this Lease by notice to the other party within
30 days after the occurrence of such damage and this Lease shall expire on the
30th day after the date of such notice. For purposes of this Section 13.4, the
Premises shall be deemed wholly untenantable if due to such damage Tenant shall
be precluded from using more than 50 percent of the Premises for the conduct of
its business and Tenant's inability to so use the Premises is reasonably
expected to continue until at least the earlier of the (a) Expiration Date and
(b) the 90th day after the date when such damage occurs.
SECTION 13.5 LANDLORD'S LIABILITY. Any Building employee to whom any
property shall be entrusted by or on behalf of Tenant shall be deemed to be
acting as Tenant's agent with respect to such property and neither Landlord nor
its agents shall be liable for any damage to such property, or for the loss of
or damage to any property of Tenant by theft or otherwise. None of Landlord, its
agents, any Mortgagee or Lessor shall be liable for any injury or damage to
persons or property or interruption of Tenant's business resulting from fire or
other casualty, any damage caused by other tenants or persons in the Building or
by construction of any private, public or quasi-public work, or any latent
defect in the Premises or in the Building (except that Landlord shall be
required to repair the same to the extent provided in Article 6). No penalty
shall accrue for delays which may arise by reason of adjustment of fire
insurance on the part of Landlord or Tenant, or for delay on account of "labor
troubles" or any other cause beyond Landlord's control arising from any repair
or restoration of any portion of the Premises or of the Building, provided that
Landlord shall use reasonable efforts to minimize interference with Tenant's use
and occupancy of the Premises during the performance of any such repair or
restoration, provided that Landlord shall have no obligation to employ
contractors or labor at overtime or other premium pay rates or to incur any
other overtime costs or additional expenses whatsoever. Nothing in this Section
13.5 shall affect any right of Landlord to the indemnity from Tenant to which
Landlord may be entitled under Article 32 in order to recoup for payments made
to compensate for losses of third parties. Subject to the provisions of Section
12.2, nothing herein shall release Landlord from liability for its own
negligence.
SECTION 13.6 WINDOWS. If at any time any windows of the Premises are
temporarily closed, darkened or covered over by reason of repairs, maintenance,
alterations or improvements to the Building, or any of such windows are
permanently closed, darkened or covered over due to any Requirement, Landlord
shall not be liable for any damage Tenant may sustain and Tenant shall not be
entitled to any compensation or abatement of any Rent, nor shall the same
release Tenant from its obligations hereunder or constitute an actual or
constructive eviction.
ARTICLE 14
EMINENT DOMAIN
SECTION 14.1 CONDEMNATION.
(a) TOTAL TAKING. If all or substantially all of the Real Property,
the Building or the Premises shall be acquired or condemned for any public or
quasi-public purpose, this Lease shall terminate and the Term shall end as of
the date of the vesting of title, with the same effect as if such date were the
Expiration Date, and Rent shall be prorated and adjusted as of such date.
(b) PARTIAL TAKING. If only a part of the Real Property, the
Building or the Premises shall be acquired or condemned then, except as
hereinafter provided in this Article 14, this Lease and the Term shall continue
in full force and effect, provided that from and after the date of the vesting
of title, the Rent and Tenant's Proportionate Share shall be modified to reflect
the reduction of the Premises and/or the Building as a result of such
acquisition or condemnation.
(c) LANDLORD'S TERMINATION RIGHT. Whether or not the Premises are
affected, Landlord may give to Tenant, within 60 days following the date upon
which Landlord receives notice that all or a portion of the Real Property, the
Building or the Premises has been acquired or condemned, a notice of termination
of this Lease, provided that Landlord elects to terminate leases (including this
Lease) affecting at least 50 percent of the rentable area of the Building
(excluding any rentable area leased by Landlord or its affiliates).
(d) TENANT'S TERMINATION RIGHT. If the part of the Real Property so
acquired or condemned contains more than 15 percent of the total area of the
Premises immediately prior to such acquisition or condemnation, or if, by reason
of such acquisition or condemnation, Tenant no longer has reasonable means of
access to the Premises, Tenant may terminate this Lease by notice to Landlord
given within 30 days following the date upon which Tenant received notice of
such acquisition or condemnation. If Tenant so notifies Landlord, this Lease
shall end and expire upon the 30th day following the giving of such notice.
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If a part of the Premises shall be so acquired or condemned and this Lease and
the Term shall not be terminated in accordance with this Section 14.1 Landlord,
at Landlord's expense, but without requiring Landlord to spend more than it
collects as an award, shall, subject to the provisions of any Mortgage or
Superior Lease, restore that part of the Premises not so acquired or condemned
to a self-contained rental unit substantially equivalent (with respect to
character, quality, appearance and services) to that which existed immediately
prior to such acquisition or condemnation, excluding Tenant's Property and/or
Specialty Alterations.
(e) APPORTIONMENT OF RENT. Upon any termination of this Lease
pursuant to the provisions of this Article 14, Rent shall be apportioned as of,
and shall be paid or refunded up to and including, the date of such termination.
SECTION 14.2 AWARDS. Upon any acquisition or condemnation of all or any
part of the Real Property, Landlord shall receive the entire award for any such
acquisition or condemnation, and Tenant shall have no claim against Landlord or
the condemning authority for the value of any unexpired portion of the Term,
Tenant's Alterations or improvements; and Tenant hereby assigns to Landlord all
of its right in and to such award. Nothing contained in this Article 14 shall be
deemed to prevent Tenant from making a separate claim in any condemnation
proceedings for the then value of any Tenant's Property or Specialty Alteration
included in such taking and for any moving expenses, provided any such award is
in addition to, and does not result in a reduction of, the award made to
Landlord.
SECTION 14.3 TEMPORARY TAKING. If all or any part of the Premises is
acquired or condemned temporarily during the Term for any public or quasi-public
use or purpose, Tenant shall give prompt notice to Landlord and the Term shall
not be reduced or affected in any way and Tenant shall continue to pay all Rent
payable by Tenant without reduction or abatement and to perform all of its other
obligations under this Lease, except to the extent prevented from doing so by
the condemning authority, and Tenant shall be entitled to receive any award or
payment from the condemning authority for such use, which shall be received,
held and applied by Tenant as a trust fund for payment of the Rent falling due.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
SECTION 15.1 LANDLORD'S CONSENT.
(a) NO ASSIGNMENT OR SUBLETTING. Except as expressly set forth
herein, Tenant shall not assign, mortgage, pledge, encumber, or otherwise
transfer this Lease, whether by operation of law or otherwise, and shall not
sublet (or underlet), or permit, or suffer the Premises or any part thereof to
be used or occupied by others (whether for desk space, mailing privileges or
otherwise), without Landlord's prior consent in each instance. Any assignment,
sublease, mortgage, pledge, encumbrance or transfer in contravention of the
provisions of this Article 15 shall be void.
(b) COLLECTION OF RENT. If, without Landlord's consent, this Lease
is assigned, or any part of the Premises is sublet or occupied by anyone other
than Tenant or this Lease or the Premises or any of Tenant's Property is
encumbered (by operation of law or otherwise), Landlord may collect rent from
the assignee, subtenant or occupant, and apply the net amount collected to the
Rent herein reserved. No such collection shall be deemed a waiver of the
provisions of this Article 15, an acceptance of the assignee, subtenant or
occupant as tenant, or a release of Tenant from the performance of Tenant's
covenants hereunder. Tenant shall remain fully liable for the obligations under
this Lease.
(c) FURTHER ASSIGNMENT/SUBLETTING. Landlord's consent to any
assignment or subletting shall not relieve Tenant from the obligation to obtain
Landlord's express consent to any further assignment or subletting. In no event
shall any permitted subtenant assign or encumber its sublease or further sublet
any portion of its sublet space, or otherwise suffer or permit any portion of
the sublet space to be used or occupied by others.
SECTION 15.2 TENANT'S NOTICE. If Tenant desires to assign this Lease or
sublet all or any portion of the Premises, Tenant shall give notice thereof to
Landlord, which shall be accompanied by (a) with respect to an assignment of
this Lease, the date Tenant desires the assignment to be effective, and (b) with
respect to a sublet of all or a part of the Premises, (i) the material business
terms on which Tenant would sublet such premises, and (ii) a description of the
portion of the Premises to be sublet. Such notice shall be deemed an offer from
Tenant to Landlord whereby Landlord (or Landlord's designee) shall be granted
the right, at Landlord's option, (1) to terminate this Lease with respect to
such space as Tenant proposes to sublease (the "Partial Space"), upon the terms
and conditions hereinafter set forth, or (2) if the proposed transaction is an
assignment of this Lease or a subletting of 50% or more of the rentable square
footage of the Premises, to terminate this Lease with respect to the entire
Premises. Such option may be exercised by notice from Landlord to Tenant within
30 days after Landlord's receipt of Tenant's notice.
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SECTION 15.3 LANDLORD'S TERMINATION. If Landlord exercises its option to
terminate all or a portion of this Lease pursuant to Section 15.2, (a) this
Lease shall end and expire with respect to all or a portion of the Premises, as
the case may be, on the date that such assignment or sublease was to commence,
(b) Rent shall be apportioned, paid or refunded as of such date, (c) Tenant,
upon Landlord's request, shall enter into an amendment of this Lease ratifying
and confirming such total or partial termination, and setting forth any
appropriate modifications to the terms and provisions hereof, and (d) Landlord
shall be free to lease the Premises (or any part thereof) to Tenant's
prospective assignee or subtenant.
SECTION 15.4 CONDITIONS TO ASSIGNMENT/SUBLETTING.
(a) If Landlord does not exercise any of Landlord's options provided
under Sections 15.2, and provided that no Event of Default then exists,
Landlord's consent to the proposed assignment or subletting shall not be
unreasonably withheld or delayed. Such consent shall be granted or declined, as
the case may be, within 20 days after Landlord's receipt of (i) a true and
complete statement reasonably detailing the identity of the proposed assignee or
subtenant, the nature of its business and its proposed use of the Premises, (ii)
current financial information with respect to the proposed assignee or
subtenant, including its most recent financial statements, and (iii) any other
information Landlord may reasonably request, provided that:
(A) in Landlord's reasonable judgment, the proposed assignee
or subtenant is engaged in a business or activity, and the Premises will
be used in a manner, which (1) is in keeping with the then standards of
the Building, (2) limits the use of the Premises to general and executive
offices, and (3) does not violate any restrictions set forth in this
Lease, any Mortgage or Superior Lease or any negative covenant as to use
of the Premises required by any other lease in the Building;
(B) the proposed assignee or subtenant is a reputable person
or entity of good character with sufficient financial means to perform all
of its obligations under this Lease or the sublease, as the case may be,
and Landlord has been furnished with reasonable proof thereof;
(C) if Landlord has, or reasonably expects to have within six
months thereafter, comparable space available in the Building, neither the
proposed assignee or subtenant nor any person which, directly or
indirectly, controls, is controlled by, or is under common control with,
the proposed assignee or subtenant is then an occupant of the Building;
(D) the proposed assignee or subtenant is not a person or
entity (or affiliate of a person or entity) with whom Landlord or
Landlord's agent is then or has been within the prior six months
negotiating in connection with the rental of space in the Building;
(E) the form of the proposed sublease or instrument of
assignment shall be reasonably satisfactory to Landlord and shall comply
with the provisions of this Article 15;
(F) there shall be not more than two subtenants of the
Premises;
(G) Tenant shall, upon demand, reimburse Landlord for all
expenses incurred by Landlord in connection with such assignment or
sublease, including any investigations as to the acceptability of the
proposed assignee or subtenant, reviewing any plans and specifications for
Alterations proposed to be made in connection therewith, and all legal
costs reasonably incurred in connection with the granting of any requested
consent;
(H) the proposed subtenant or assignee shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity, regardless of
whether the proposed assignee or subtenant agrees to waive such diplomatic
or sovereign immunity, and shall be subject to the service of process in,
and the jurisdiction of the courts of, County of Xxxx and State of
Illinois; and
(I) in Landlord's reasonable judgment, the proposed assignee
or subtenant shall not be of a type or character, or engaged in a business
or activity, or owned or controlled by or identified with any entity,
which may result in protests or civil disorders or commotions at, or other
disruptions of the normal business activities in, the Building.
(b) With respect to each and every subletting and/or assignment
authorized by Landlord under the provisions of this Lease, it is further agreed
that:
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(i) the form of the proposed assignment or sublease shall be
reasonably satisfactory to Landlord and shall comply with the provisions of this
Article 15;
(ii) no sublease shall be for a term ending later than one day
prior to the Expiration Date of this Lease;
(iii) no subtenant shall take possession of any part of the
Premises, until an executed counterpart of such sublease has been delivered to
Landlord and approved in writing by Landlord as provided in Section 15.4(a);
(iv) if an Event of Default shall occur at any time prior to
the effective date of such assignment or subletting, then Landlord's consent
thereto, if previously granted, shall be immediately deemed revoked without
further notice to Tenant, and if such assignment or subletting would have been
permitted without Landlord's consent pursuant to Section 15.8, such permission
shall be void and without force and effect, and in either such case, any such
assignment or subletting shall constitute a further Event of Default hereunder;
(v) if an Event of Default shall occur under this Lease,
Landlord may require the subtenant under any sublease to pay the rent and other
sums due under the sublease directly to Landlord; and
(vi) each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate, it
being the intention of Landlord and Tenant that Tenant shall assume and be
liable to Landlord for any and all acts and omissions of all subtenants and
anyone claiming under or through any subtenants which, if performed or omitted
by Tenant, would be a default under this Lease; and Tenant and each subtenant
shall be deemed to have agreed that upon the occurrence and during the
continuation of an Event of Default hereunder, Tenant has hereby assigned to
Landlord, and Landlord may, at its option, accept such assignment of, all right,
title and interest of Tenant as sublandlord under such sublease, together with
all modifications, extensions and renewals thereof then in effect and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not be (A)
liable for any previous act or omission of Tenant under such sublease, (B)
subject to any counterclaim, offset or defense not expressly provided in such
sublease, which theretofore accrued to such subtenant against Tenant, (C) bound
by any previous modification of such sublease not consented to by Landlord or by
any prepayment of more than one month's Rent, (D) bound to return such
subtenant's security deposit, if any, except to the extent Landlord shall
receive actual possession of such deposit and such subtenant shall be entitled
to the return of all or any portion of such deposit under the terms of its
sublease, or (E) obligated to make any payment to or on behalf of such
subtenant, or to perform any work in the subleased space or the Building, or in
any way to prepare the subleased space for occupancy, beyond Landlord's
obligations under this Lease. The provisions of this Section 15.4(b)(vi) shall
be self-operative, and no further instrument shall be required to give effect to
this provision, provided that the subtenant shall execute and deliver to
Landlord any instruments Landlord may reasonably request to evidence and confirm
such subordination and attornment.
SECTION 15.5 BINDING ON TENANT; INDEMNIFICATION OF LANDLORD. Each
sublease pursuant to this Article 15 shall be subject to all of the covenants,
terms and conditions of this Lease. Notwithstanding any assignment or subletting
or any acceptance of Rent by Landlord from any assignee or subtenant, Tenant
shall remain fully liable for the payment of all Rent due and for the
performance of all the covenants, terms and conditions contained in this Lease
on Tenant's part to be observed and performed, and any default under any term,
covenant or condition of this Lease by any subtenant or assignee or anyone
claiming under or through any subtenant or assignee shall be deemed to be a
default under this Lease by Tenant. Tenant shall indemnify, defend, protect and
hold harmless Landlord from and against any and all losses, liabilities, damages
and expenses (including reasonable attorneys' fees and disbursements) resulting
from any claims that may be made against Landlord by the proposed assignee or
subtenant or anyone claiming under or through any subtenant or by any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease, irrespective of whether Landlord shall give
or decline to give its consent to any proposed assignment or sublease, or if
Landlord shall exercise any of its options under this Article 15.
SECTION 15.6 TENANT'S FAILURE TO COMPLETE. If Landlord consents to a
proposed assignment or sublease and Tenant fails to execute and deliver to
Landlord such assignment or sublease within 90 days after the giving of such
consent, then Tenant shall again comply with all of the provisions and
conditions of Section 15.2 hereof before assigning this Lease or subletting all
or part of the Premises.
SECTION 15.7 PROFITS. If Tenant shall enter into any assignment or
sublease permitted hereunder or consented to by Landlord, Tenant shall, within
60 days of Landlord's consent to such assignment or sublease, deliver to
Landlord a complete list of Tenant's reasonable third-party brokerage fees,
construction costs and allowances, legal fees and architectural fees paid or to
be paid in connection with such transaction, together with a list of all of
Tenant's Property to be transferred to such assignee or
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sublessee. Tenant shall deliver to Landlord evidence of the payment of such
fees, costs and allowances promptly after the same are paid. In consideration of
such assignment or subletting, Tenant shall pay to Landlord:
(a) In the case of an assignment, on the effective date of the
assignment, an amount equal to 50% of all sums and other consideration paid to
Tenant by the assignee for or by reason of such assignment (including sums paid
for the sale or rental of Tenant's Property, less the then fair market or rental
value thereof, as reasonably determined by Landlord, in connection with an
assignment or sublease requiring Landlord's consent) after first deducting
Tenant's reasonable third-party brokerage fees, construction costs and
allowances, legal fees and architectural fees in connection with such
transaction; or
(b) in the case of a sublease, 50% of any consideration payable
under the sublease to Tenant by the subtenant which exceeds on a per square foot
basis the Fixed Rent and Additional Rent accruing during the term of the
sublease in respect of the subleased space (together with any sums paid for the
sale or rental of Tenant's Property, less the then fair market or rental value
thereof, as reasonably determined by Landlord, in connection with an assignment
or sublease requiring Landlord's consent) after first deducting Tenant's
reasonable third-party brokerage fees, construction costs and allowances, legal
fees and architectural fees in connection with such transaction, and if such
sublease is less than the entire Premises, the actual cost incurred by Tenant in
separately demising the subleased space. The sums payable under this clause
shall be paid by Tenant to Landlord as and when paid by the subtenant to Tenant.
SECTION 15.8 OTHER TRANSFERS.
(a) Deemed and Permitted Transfers. If Tenant is a corporation, the
transfer (by one or more transfers) of a majority of the stock of Tenant shall
be deemed a voluntary assignment of this Lease; provided, however, that the
provisions of this Article 15 shall not apply to the transfer of shares of stock
of Tenant if and so long as Tenant is publicly traded on a nationally recognized
stock exchange. For purposes of this Section 15.8 the term "transfers" shall be
deemed to include the issuance of new stock which results in a majority of the
stock of Tenant being held by a person or entity which does not hold a majority
of the stock of Tenant on the date hereof. If Tenant is a partnership, the
transfer (by one or more transfers) of a majority interest in the partnership
shall be deemed a voluntary assignment of this Lease. If Tenant is a limited
liability company, trust, or any other legal entity, the transfer (by one or
more transfers) of a majority of the beneficial ownership interests in such
entity, however characterized, shall be deemed a voluntary assignment of this
Lease. The provisions of Section 15.1 and Section 15.3 shall not apply to
transactions with a corporation or other business entity into or with which
Tenant is merged or consolidated or to which substantially all of Tenant's
assets are transferred so long as (i) such transfer was made for a legitimate
independent business purpose and not for the purpose of transferring this Lease,
(ii) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the greater of (1)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, and (2) the net worth of the original Tenant on the date of this
Lease, and (iii) proof satisfactory to Landlord of such net worth is delivered
to Landlord at least 10 days prior to the effective date of any such
transaction. Tenant may also, upon prior notice to and with the consent of
Landlord, which consent shall not be unreasonably withheld, permit any
corporation or other business entity which controls, is controlled by, or is
under common control with the original Tenant (a "Related Entity") to sublet all
or part of the Premises for any Permitted Use, provided the Related Entity is in
Landlord's reasonable judgment of a character and engaged in a business which is
in keeping with the standards for the Building and the occupancy thereof. Such
sublease shall not be deemed to vest in any such Related Entity any right or
interest in this Lease or the Premises nor shall it relieve, release, impair or
discharge any of Tenant's obligations hereunder. For the purposes hereof,
"control" shall be deemed to mean ownership of not less than 50 percent of all
of the voting stock of such corporation or not less than 50 percent of all of
the legal and equitable interest in any other business entity if Tenant is not a
corporation. Notwithstanding the foregoing, Tenant shall have no right to assign
this Lease or sublease all or any portion of the Premises without Landlord's
consent pursuant to this Section 15.8 if Tenant is not the initial Tenant herein
named or a person or entity who acquired Tenant's interest in this Lease in a
transaction permitted under this Section 15.8 without the express prior consent
of Landlord.
(b) APPLICABILITY. The limitations set forth in this Section 15.8
shall apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any,
and any transfer by any such entity in violation of this Section 15.8 shall be a
transfer in violation of Section 15.1.
(c) MODIFICATIONS, TAKEOVER AGREEMENTS. Any modification, amendment
or extension of a sublease and/or any other agreement by which a landlord of a
building other than the Building agrees to assume the obligations of Tenant
under this Lease shall be deemed a sublease for the purposes of Section 15.1
hereof.
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SECTION 15.9 ASSUMPTION OF OBLIGATIONS. Any assignment or transfer,
whether made with Landlord's consent or without Landlord's consent, if and to
the extent permitted hereunder, shall not be effective unless and until the
assignee executes, acknowledges and delivers to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee (a) assumes Tenant's
obligations under this Lease and (b) agrees that, notwithstanding such
assignment or transfer, the provisions of Section 15.1 hereof shall be binding
upon it in respect of all future assignments and transfers.
SECTION 15.10 TENANT'S LIABILITY. The joint and several liability of
Tenant and any successors-in-interest of Tenant and the due performance of
Tenant's obligations under this Lease shall not be discharged, released or
impaired by any agreement or stipulation made by Landlord, or any grantee or
assignee of Landlord, extending the time, or modifying any of the terms and
provisions of this Lease, or by any waiver or failure of Landlord, or any
grantee or assignee of Landlord, to enforce any of the terms and provisions of
this Lease.
SECTION 15.11 LISTINGS IN BUILDING DIRECTORY. The listing of any name
other than that of Tenant on the doors of the Premises, the Building directory
or elsewhere shall not vest any right or interest in this Lease or in the
Premises, nor be deemed to constitute Landlord's consent to any assignment or
transfer of this Lease or to any sublease of the Premises or to the use or
occupancy thereof by others. Any such listing shall constitute a privilege
revocable in Landlord's discretion by notice to Tenant.
SECTION 15.12 LEASE DISAFFIRMANCE OR REJECTION. If at any time after an
assignment by Tenant named herein, this Lease is disaffirmed or rejected in any
proceeding of the types described in Section 18.1(g) hereof or any similar
proceeding, or upon a termination of this Lease due to any such proceeding,
Tenant named herein, upon request of Landlord given after such disaffirmance,
rejection or termination (and actual notice thereof to Landlord in the event of
a disaffirmance or rejection or in the event of termination other than by act of
Landlord), shall (a) pay to Landlord all Rent and other charges due and owing by
the assignee to Landlord under this Lease to and including the date of such
disaffirmance, rejection or termination, and (b) as "tenant," enter into a new
lease of the Premises with Landlord for a term commencing on the effective date
of such disaffirmance, rejection or termination and ending on the Expiration
Date, unless sooner terminated in accordance therewith, at the same Rent and
upon the then executory terms, covenants and conditions contained in this Lease,
except that (i) the rights of Tenant named herein under the new lease shall be
subject to the possessory rights of the assignee under this Lease and the
possessory rights of any persons claiming through or under such assignee or by
virtue of any statute or of any order of any court, (ii) such new lease shall
require all defaults existing under this Lease to be cured by Tenant named
herein with due diligence, and (iii) such new lease shall require Tenant named
herein to pay all Rent which, had this Lease not been so disaffirmed, rejected
or terminated, would have become due under the provisions of this Lease after
the date of such disaffirmance, rejection or termination with respect to any
period prior thereto. If Tenant named herein defaults in its obligations to
enter into such new lease for a period of 10 days after Landlord's request,
then, in addition to all other rights and remedies by reason of default, either
at law or in equity, Landlord shall have the same rights and remedies against
Tenant named herein as if it had entered into such new lease and such new lease
had thereafter been terminated as of the commencement date thereof by reason of
Tenant's default thereunder.
ARTICLE 16
ELECTRICITY
SECTION 16.1 ELECTRICITY. Electricity shall be distributed to the
Premises either by the electric utility company serving the Building or, at
Landlord's option, by Landlord; and Landlord shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such distribution. If and so long as Landlord is distributing electricity to the
Premises, Tenant shall obtain all of its electricity from Landlord and shall pay
all of Landlord's charges, which charges shall be determined pursuant to Section
16.4 based, at Landlord's option, either on meter readings or on a survey of
Tenant's electrical usage made by Landlord or on Tenant's prorata share of all
space, including the Premises, which is commonly metered with the Premises. If
the electric utility company is distributing electricity to the Premises, Tenant
at its cost shall make all necessary arrangements with the electric utility
company for metering and paying for electric current furnished to the Premises.
All electricity used during the performance of janitor service, or the making of
any alterations or repairs in the Premises, or the operation of any special air
conditioning systems serving the Premises, shall be paid for by Tenant.
SECTION 16.2 EXCESS ELECTRICITY. Tenant shall at all times comply with
the rules and regulations of the utility company supplying electricity to the
Building. Tenant shall not use any electrical equipment which, in Landlord's
judgment, would exceed the capacity of the electrical equipment serving the
Premises or interfere with the electrical service to other Building tenants. If
Landlord determines that Tenant's electrical requirements necessitate
installation of any additional risers, feeders or other electrical distribution
equipment (collectively, "Electrical Equipment"), or if Tenant provides Landlord
with evidence reasonably satisfactory to Landlord of Tenant's need for excess
electricity and requests that additional Electrical Equipment be installed,
Landlord
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shall, at Tenant's expense, install such additional Electrical Equipment,
provided that Landlord, in its sole judgment, considering the potential needs of
present and future Building tenants and of the Building itself, determines that
(a) such installation is practicable and necessary, (b) such additional
Electrical Equipment is permissible under applicable Requirements, and (c) the
installation of such Electrical Equipment will not cause permanent damage or
injury to the Building or the Premises, cause or create a dangerous or hazardous
condition, entail excessive or unreasonable alterations, interfere with or
disturb or limit electrical usage by other tenants or occupants of the Building
or exceed the limits of the switchgear or other facilities serving the Building,
or require power in excess of that available from the public utility serving the
Building. Any costs incurred by Landlord in connection therewith shall be paid
by Tenant within 30 days after the rendition of a xxxx therefor. Tenant shall
not make or perform, or permit the making or performance of, any Alterations to
wiring installations or other electrical facilities in or serving the Premises
or make any additions to the office equipment or other appliances in the
Premises which utilize electrical energy (other than ordinary small office
equipment) without the prior consent of Landlord, in each instance, and in
compliance with this Lease.
SECTION 16.3 SERVICE DISRUPTION. Landlord shall not be liable in any way
to Tenant for any failure, defect or interruption of, or change in the supply,
character and/or quantity of electric service furnished to the Premises for any
reason except if attributable to the gross negligence or willful misconduct of
Landlord, its agents, contractors and subcontractors, nor shall there be any
allowance to Tenant for diminution of rental value, nor shall the same
constitute an actual or constructive eviction of Tenant, in whole or part, or
relieve Tenant from any of its Lease obligations, and no liability shall arise
on the part of Landlord by reason of inconvenience, annoyance or injury to
business whether electricity is provided by public or private utility or by any
electricity generation system owned and operated by Landlord. Landlord shall use
reasonable efforts to minimize interference with Tenant's use and occupancy of
the Premises as a result of any such failure, defect or interruption of, or
change in the supply, character and/or quantity of, electric service, provided
that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever.
SECTION 16.4 ELECTRICITY ADDITIONAL RENT.
(a) Tenant shall pay to Landlord an annual amount ("Electricity
Additional Rent") equal to the product of (i) the Electrical Allocation set
forth in Article 2 and (ii) the Agreed Area of the Premises. The Electricity
Additional Rent shall be paid in equal monthly installments, in advance, on the
first day of each calendar month commencing on the Rent Commencement Date. If
the Rent Commencement Date shall occur on a date other than the first day of any
calendar month, Tenant shall pay to Landlord, on the Rent Commencement Date, a
sum equal to the Electricity Additional Rent for such month multiplied by a
fraction, the numerator of which shall be the number of calendar days in the
period from the Rent Commencement Date to the last day of the month in which the
Rent Commencement Date shall occur, both dates inclusive, and the denominator of
which shall be the number of calendar days in such month.
(b) The Electrical Allocation represents the amount per rentable
square foot Landlord estimates Tenant would pay to Commonwealth Edison Company
to contract directly for the electricity to be furnished by Landlord for
Tenant's Standard Electrical Requirements") from 8:00 a.m. to 6:00 p.m. on
Business Days and 8:00 a.m. to 1:00 p.m. on Saturdays that are not Holidays
("Normal Business Hours"). As used herein, Standard "Electrical Requirements"
means the electricity required for Tenant's Building Standard lighting fixtures
and for Tenant's incidental uses, provided that (i) the connected electrical
load of Tenant's incidental use equipment does not exceed an average of two
xxxxx per square foot of the Premises; (ii) the electricity furnished for
incidental uses shall be at nominal 120 volts and no electrical circuit for the
supply of an incidental use shall have a current capacity exceeding 15 amperes;
(iii) the incidental use electricity shall be used only for customary office
equipment and accessories (excluding, without limitation, data processing,
computer (other than personal computers) and air conditioning equipment); and
(iv) the kilowatt-hours of incidental usage does not exceed five (5) percent of
the total kilowatt- hours of lighting usage in the Premises. In the event
Tenant's requirements for incidental usage of electricity exceed the foregoing
limitations, Landlord reserves the right to require Tenant to arrange with
Commonwealth Edison Company, or other approved local utility company, for the
supply of such excess incidental usage of electricity, at Tenant's expense.
(c) If, at any time during the Term (i) Landlord determines that it
has underestimated Tenant's Standard Electrical Requirements during Normal
Business Hours, or that Tenant is using the Standard Electrical Requirements
after Normal Business Hours; or (ii) the rate classification pursuant to which
Tenant would pay directly to Commonwealth Edison Company is increased; or (iii)
the rate classification pursuant to which Tenant would pay directly to
Commonwealth Edison Company is changed to another classification and such change
results in an increase; then, in any of such events, Landlord may, upon written
notice to Tenant, increase the Electrical Allocation to reflect the amount
Tenant would pay directly to Commonwealth Edison Company upon the occurrence of
any such events.
(d) If, at any time during the Term of the Lease, (i) Tenant
etermines that Landlord has overestimated Tenant's Electrical Requirements
during Normal Business Hours and Landlord agrees with such determination; (ii)
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the rate classification pursuant to which Tenant would pay directly to
Commonwealth Edison Company is decreased; or (iii) the rate classification
pursuant to which Tenant would pay directly to Commonwealth Edison Company is
changed to another classification and such change results in a decrease; then,
in any such events, Landlord shall, upon written notice from Tenant, decrease
the Electrical Allocation to reflect the lesser amount Tenant would pay directly
to Commonwealth Edison Company upon the occurrence of any such events.
(e) All increases or decreases in the Electrical Allocation shall
result in a corresponding increase or decrease, as the case may be, in the
Electrical Rent payable by Tenant effective on the first day of the first full
calendar month following the month in which the notice of increase or decrease
is received by Tenant or Landlord, as the case may be.
(f) If a dispute or disagreement shall arise between Tenant and
Landlord with respect to the propriety of an increase or decrease of Electricity
Additional Rent under this Section 16.4, the dispute or disagreement shall be
promptly referred to a mutually acceptable independent electrical engineer whose
decision, including any modification of an increase or decrease, will be binding
upon Tenant and Landlord, effective as provided above, and whose fee shall be
borne equally by Tenant and Landlord.
ARTICLE 17
ACCESS TO PREMISES
SECTION 17.1 LANDLORD'S ACCESS.
(a) Tenant shall permit Landlord, Landlord's agents and public
utility service providers servicing the Building to erect, use and maintain
concealed ducts, pipes and conduits in and through the Premises provided such
use does not cause the usable area of the Premises to be reduced by an amount
greater than two percent (2%). Landlord shall promptly repair any damage to the
Premises or Tenant's Property caused by any work performed pursuant to this
Article 17, and restore the Premises and Tenant's Property to its condition
immediately prior to such damage.
(b) Landlord, any Lessor or Mortgagee and any other party designated
by Landlord and their respective agents shall have the right to enter the
Premises at all reasonable times, upon reasonable notice (which notice may be
oral) except in the case of emergency, to examine the Premises, to show the
Premises to prospective purchasers, Mortgagees or Lessors of the Building and
their respective agents and representatives or others, to provide the services
to be provided by Landlord under this Lease, to make such repairs, alterations
or additions to the Premises or the Building (i) as Landlord may deem necessary
or appropriate, (ii) which Landlord may elect to perform following Tenant's
failure to perform, or (iii) to comply with any Requirements, and Landlord shall
be allowed to take all material into the Premises that may be required for the
performance of such work without the same constituting an actual or constructive
eviction of Tenant in whole or in part and without any abatement of Rent;
provided, however, that Landlord shall use reasonable efforts to minimize
interference with Tenant's use and occupancy of the Premises during such access
except that Landlord shall have no obligation to employ contractors or labor at
overtime or other premium pay rates or to incur any other overtime costs or
additional expenses whatsoever.
(c) All parts (except surfaces facing the interior of the Premises)
of all walls, windows and doors bounding the Premises (including exterior
Building walls, exterior core corridor walls, and doors and entrances other than
doors and entrances solely connecting areas within the Premises), all balconies,
terraces and roofs adjacent to the Premises, all space in or adjacent to the
Premises used for shafts, stacks, stairways, mail chutes, conduits and other
mechanical facilities, Building Systems and Building facilities are not part of
the Premises, and Landlord shall have the use thereof and access thereto through
the Premises for the purposes of Building operation, maintenance, alteration and
repair; provided, however, that Landlord shall use reasonable efforts to
minimize interference with Tenant's use and occupancy of the Premises during
such access except that Landlord shall have no obligation to employ contractors
or labor at overtime or other premium pay rates or to incur any other overtime
costs or additional expenses whatsoever.
SECTION 17.2 FINAL 12 MONTHS. If, during the last 12 months of the Term,
Tenant removes all or substantially all of Tenant's Property from the Premises,
Landlord may, upon prior notice (which notice may be oral) and at reasonable
hours, renovate and/or redecorate the Premises, without abatement of any Rent or
incurring any liability to Tenant. Such acts shall not be deemed an actual or
constructive eviction and shall have no effect upon this Lease.
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SECTION 17.3 ALTERATIONS TO BUILDING. Landlord has the right at any time
to (a) change the name, number or designation by which the Building is commonly
known, and (b) alter the Building to change the arrangement or location of
entrances or passageways, doors and doorways, and corridors, elevators, stairs,
toilets, or other public parts of the Building without any such acts
constituting an actual or constructive eviction and without incurring any
liability to Tenant, so long as such changes do not deprive Tenant of access to
the Premises.
ARTICLE 18
DEFAULT
SECTION 18.1 TENANT'S DEFAULTS. Each of the following events shall be an
"Event of Default" hereunder:
(a) Tenant fails to pay when due any installment of Rent and such
default shall continue for five (5) Business Days after notice of such default
is given to Tenant (which notice may be in the form of an Illinois Statutory
5-day notice utilized in Forcible Entry and Detainer Proceedings, except that if
Landlord shall have given three such notices of default in the payment of any
Rent in any twelve month period, Tenant shall not be entitled to any further
notice of its delinquency in the payment of any Rent or an extended period in
which to make payment until such time as twelve consecutive months shall have
elapsed without Tenant having failed to make any such payment when due, and the
occurrence of any default in the payment of any Rent within such twelve month
period after the giving of three such notices shall constitute an Event of
Default; or
(b) Tenant uses the Premises for a purpose which constitutes a
Prohibited Use and if such use continues for more than 10 days after notice by
Landlord to Tenant of such default; or
(c) Tenant fails to observe or perform any other term, covenant or
condition of this Lease to be observed or performed by Tenant and if such
failure continues for more than 10 Business Days after notice by Landlord to
Tenant of such failure, or if such failure is of such a nature that it cannot be
completely remedied within 10 days, failure by Tenant to commence to remedy such
failure within said 10 Business Days, and thereafter diligently prosecute to
completion all steps necessary to remedy such default; or
(d) Tenant defaults in the observance or performance of any term,
covenant or condition on Tenant's part to be observed or performed under any
other lease with Landlord or Landlord's predecessor-in-interest for space in the
Building and such default shall continue beyond any grace period set forth in
such other lease for the remedying of such default; or
(e) Tenant's interest in this Lease shall devolve upon or pass to
any person, whether by operation of law or otherwise, except as expressly
permitted under Article 15 hereof; or
(f) Tenant generally does not, or is unable to, or admits in writing
its inability to, pay its debts as they become due; or
(g) Tenant files a voluntary petition in bankruptcy or insolvency,
or is adjudicated a bankrupt or insolvent, or files any petition or answer
seeking any reorganization, liquidation, dissolution or similar relief under any
present or future federal bankruptcy act or any other present or future
applicable federal, state or other statute or law, or makes an assignment for
the benefit of creditors or seeks or consents to or acquiesces in the
appointment of any trustee, receiver, liquidator or other similar official for
Tenant or for all or any part of Tenant's property; or
(h) if, within 60 days after the commencement of any proceeding
against Tenant, whether by the filing of a petition or otherwise, seeking
bankruptcy, insolvency, reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the present or any future
federal bankruptcy act or any other present or future applicable federal, state
or other statute or law, such proceeding shall not have been dismissed, or if,
within 60 days after the appointment of any trustee, receiver, liquidator or
other similar official for Tenant or for all or any part of Tenant's property,
without the consent or acquiescence of Tenant, as the case may be, such
appointment shall not have been vacated or otherwise discharged, or if any lien,
execution or attachment or other similar filing shall be made or issued against
Tenant or any of Tenant's property pursuant to which the Premises shall be taken
or occupied or attempted to be taken or occupied by someone other than Tenant.
Upon the occurrence of any one or more of such Events of Default, Landlord may,
at its sole option, give to Tenant notice of cancellation of this Lease (or of
Tenant's possession of the Premises), in which event this Lease and the Term (or
Tenant's possession
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of the Premises) shall come to an end and expire (whether or not the Term shall
have commenced) with the same force and effect as if the date set forth in the
notice was the Expiration Date stated herein; and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable for damages
as provided in Article 19 hereof. Any notice of cancellation of the Term (or
Tenant's possession of the Premises) may be given simultaneously with any notice
of default given to Tenant.
SECTION 18.2 TENANT'S LIABILITY. If, at any time, (a) Tenant shall be
comprised of two or more persons, (b) Tenant's obligations under this Lease
shall have been guaranteed by any person other than Tenant, or (c) Tenant's
interest in this Lease shall have been assigned, the word "Tenant," as used in
Section 18.1(f), 18.1(g) and 18.1(h), shall be deemed to mean any one or more of
the persons primarily or secondarily liable for Tenant's obligations under this
Lease. Any monies received by Landlord from or on behalf of Tenant during the
pendency of any proceeding of the types referred to in this Article 18 shall be
deemed paid as compensation for the use and occupancy of the Premises and the
acceptance of any such compensation by Landlord shall not be deemed an
acceptance of Rent or a waiver on the part of Landlord of any rights under this
Lease.
ARTICLE 19
REMEDIES AND DAMAGES
SECTION 19.1 LANDLORD'S REMEDIES.
(a) POSSESSION/RELETTING. If any Event of Default occurs, and this
Lease and the Term, or Tenant's right to possession of the Premises, terminates
as provided in Article 18:
(i) SURRENDER OF POSSESSION. Tenant shall quit and surrender
the Premises to Landlord, and Landlord and its agents may immediately, or at any
time after such Event of Default, re-enter the Premises or any part thereof,
without notice, either by summary proceedings, or by any other applicable action
or proceeding, or by force (to the extent permitted by law) or otherwise in
accordance with applicable legal proceedings (without being liable to
indictment, prosecution or damages therefor), and may repossess the Premises and
dispossess Tenant and any other persons from the Premises and remove any and all
of their property and effects from the Premises.
(ii) LANDLORD'S RELETTING. Landlord, at Landlord's option, may
relet all or any part of the Premises from time to time, either in the name of
Landlord or otherwise, to such tenant or tenants, for any term ending before, on
or after the Expiration Date, at such rental and upon such other conditions
(which may include concessions and free rent periods) as Landlord, in its sole
discretion, may determine. Landlord shall have no obligation to accept any
tenant offered by Tenant and shall not be liable for failure to relet or, in the
event of any such reletting, for failure to collect any rent due upon any such
reletting; and no such failure shall relieve Tenant of, or otherwise affect, any
liability under this Lease. However, to the extent required by law, Landlord
shall use reasonable efforts to mitigate its damages but shall not be required
to divert prospective tenants from any other portions of the Building. Landlord,
at Landlord's option, may make such alterations, decorations and other physical
changes in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with such reletting or proposed reletting,
without relieving Tenant of any liability under this Lease or otherwise
affecting any such liability.
(b) TENANT'S WAIVER. Tenant, on its own behalf and on behalf of all
persons claiming through or under Tenant, including all creditors, hereby waives
all rights which Tenant and all such persons might otherwise have under any
Requirement (i) to the service of any notice of intention to re-enter or to
institute legal proceedings, (ii) to redeem, or to re-enter or repossess the
Premises, or (iii) to restore the operation of this Lease, after (A) Tenant
shall have been dispossessed by judgment or by warrant of any court or judge,
(B) any re-entry by Landlord, or (C) any expiration or early termination of the
term of this Lease, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. The
words "re-enter," "re-entry" and "re-entered" as used in this Lease shall not be
deemed to be restricted to their technical legal meanings.
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(c) TENANT'S BREACH. Upon the breach or threatened breach by Tenant,
or any persons claiming through or under Tenant, of any term, covenant or
condition of this Lease, Landlord shall have the right to enjoin such breach and
to invoke any other remedy allowed by law or in equity as if re-entry, summary
proceedings and other special remedies were not provided in this Lease for such
breach. The rights to invoke the remedies set forth above are cumulative and
shall not preclude Landlord from invoking any other remedy allowed at law or in
equity.
SECTION 19.2 LANDLORD'S DAMAGES.
(a) AMOUNT OF DAMAGES. If this Lease and the Term, or Tenant's right
to possession of the Premises, expire and come to an end as provided in Article
18, or by or under any summary proceeding or any other action or proceeding, or
if Landlord shall re-enter the Premises as provided in Section 19.1, then, in
any of such events:
(i) Tenant shall pay to Landlord all Fixed Rent, all sums
payable pursuant to Article 8 of this Lease (including Tenant's Tax Payment and
Tenant's Operating Payment) and all other items of Rent payable under this Lease
by Tenant to Landlord prior to the date of re-entry upon the Premises by
Landlord;
(ii) Landlord shall be entitled to retain all monies, if any,
paid by Tenant to Landlord, whether as prepaid Rent, a Security Deposit or
otherwise, which monies, to the extent not otherwise applied to amounts due and
owing to Landlord, shall be credited by Landlord against any damages payable by
Tenant to Landlord;
(iii) Tenant shall pay to Landlord, in monthly installments,
on the days specified in this Lease for payment of installments of Fixed Rent,
any Deficiency; it being understood that Landlord shall be entitled to recover
the Deficiency from Tenant each month as the same shall arise, and no suit to
collect the amount of the Deficiency for any month, shall prejudice Landlord's
right to collect the Deficiency for any subsequent month by a similar
proceeding; and
(iv) whether or not Landlord shall have collected any monthly
Deficiency, Tenant shall pay to Landlord, on demand, in lieu of any further
Deficiency and as liquidated and agreed final damages, a sum equal to the amount
by which the Rent for the period which otherwise would have constituted the
unexpired portion of the Term (assuming the Additional Rent during such period
to be the same as was payable for the year immediately preceding such
termination or re-entry), increased in each succeeding year by four percent (on
a compounded basis) exceeds the then fair and reasonable rental value of the
Premises, for the same period (with both amounts being discounted to present
value at a rate of interest equal to two percent below the then Base Rate) less
the aggregate amount of Deficiencies theretofore collected by Landlord pursuant
to the provisions of Section 19.2(a)(iii) for the same period. If, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the Premises, or any part thereof, shall have been relet by Landlord
for the period which otherwise would have constituted the unexpired portion of
the Term, or any part thereof, the amount of rent reserved upon such reletting
shall be deemed, prima facie, to be the fair and reasonable rental value for the
part or the whole of the Premises so relet during the term of the reletting.
(b) RELETTING. If the Premises, or any part thereof, shall be relet
together with other space in the Building, the rents collected or reserved under
any such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 19.2. Tenant shall not be entitled
to any rents collected or payable under any reletting, whether or not such rents
exceed the Fixed Rent reserved in this Lease. Nothing contained in Articles 18
or 19 shall be deemed to limit or preclude the recovery by Landlord from Tenant
of the maximum amount allowed to be obtained as damages by any Requirement, or
of any sums or damages to which Landlord may be entitled in addition to the
damages set forth in this Section 19.2.
SECTION 19.3 DEFAULT INTEREST; OTHER RIGHTS OF LANDLORD. Any Rent or
damages payable under this Lease and not paid when due shall bear interest at
the Interest Rate from the due date until paid, and the interest shall be deemed
Additional Rent. If Tenant fails to pay any Additional Rent when due, Landlord,
in addition to any other right or remedy, shall have the same rights and
remedies as in the case of a default by Tenant in the payment of Fixed Rent. If
Tenant is in arrears in the payment of Rent, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are to be
credited, and Landlord may apply any payments made by Tenant to any items
Landlord sees fit, regardless of any request by Tenant. Landlord reserves the
right, without liability to Tenant and without constituting any claim of
constructive eviction, to suspend furnishing or rendering to Tenant any
property, material, labor, utility or other service, whenever Landlord is
obligated to furnish or render the same at the expense of Tenant, in the event
that (but only for so long as) Tenant is in arrears in paying Landlord for such
items for more than five (5) days after notice from Landlord to Tenant demanding
the payment of such arrears.
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ARTICLE 20
LANDLORD'S RIGHT TO CURE; FEES AND EXPENSES
If Tenant defaults in the performance of its obligations under this
Lease, Landlord, without thereby waiving such default, may perform such
obligation for the account and at the expense of Tenant: (a) immediately or at
any time thereafter, and without notice, in the case of emergency or in the case
the default (i) materially interferes with the use by any other tenant of any
space in the Building, (ii) materially interferes with the efficient operation
of the Building, (iii) will result in a violation of any Requirement, or (iv)
will result in a cancellation of any insurance policy maintained by Landlord,
and (b) in any other case if such default continues after 10 days from the date
Landlord gives notice of Landlord's intention so to perform the defaulted
obligation. All costs and expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant and all costs and expenses,
including reasonable counsel fees and disbursements, incurred by Landlord in any
action or proceeding (including any summary dispossess proceeding) brought by
Landlord to enforce any obligation of Tenant under this Lease and/or right of
Landlord in or to the Premises, shall be paid by Tenant to Landlord on demand,
with interest thereon at the Interest Rate from the date incurred by Landlord.
Except as expressly provided to the contrary in this Lease, all costs and
expenses which, pursuant to this Lease (including the Rules and Regulations) are
incurred by Landlord and payable to Landlord by Tenant, and all charges, amounts
and sums payable to Landlord by Tenant for any property, material, labor,
utility or other services which, pursuant to this Lease or at the request and
for the account of Tenant, are provided, furnished or rendered by Landlord,
shall become due and payable by Tenant to Landlord in accordance with the terms
of the bills rendered by Landlord to Tenant.
ARTICLE 21
NO REPRESENTATIONS BY LANDLORD: LANDLORD'S APPROVAL
SECTION 21.1 NO REPRESENTATIONS. Except as expressly set forth herein,
Landlord and Landlord's agents have made no warranties, representations,
statements or promises with respect to the Building, the Real Property or the
Premises and no rights, easements or licenses are acquired by Tenant by
implication or otherwise. This Lease contains the entire agreement between the
parties and all understandings and agreements previously made between Landlord
and Tenant are merged in this Lease, which alone fully and completely expresses
their agreement. Tenant is entering into this Lease after full investigation and
is not relying upon any statement or representation made by Landlord not
embodied in this Lease.
SECTION 21.2 WRITTEN APPROVAL. All references in this Lease to the
consent or approval or Landlord mean the written consent or approval of
Landlord, duly executed by Landlord.
SECTION 21.3 NO MONEY DAMAGES. Wherever in this Lease Landlord's consent
or approval is required, if Landlord refuses to grant such consent or approval,
whether or not Landlord expressly agreed that such consent or approval would not
be unreasonably withheld, Tenant shall not make, and Tenant hereby waives, any
claim for money damages (including any claim by way of set-off, counterclaim or
defense) based upon Tenant's claim or assertion that Landlord unreasonably
withheld or delayed its consent or approval. Tenant's sole remedy shall be an
action or proceeding to enforce such provision, by specific performance,
injunction or declaratory judgment.
ARTICLE 22
END OF TERM
SECTION 22.1 EXPIRATION. Upon the expiration or other termination of
this Lease, or Tenant's right to possession of the Premises, Tenant shall quit
and surrender the Premises to Landlord vacant, broom clean and in good order and
condition, ordinary wear and tear and damage for which Tenant is not responsible
under the terms of this Lease excepted, and Tenant shall remove all of Tenant's
Property and Tenant's Alterations as may be required pursuant to Article 6 of
this Lease. The foregoing obligation shall survive the expiration or sooner
termination of the Term. If the last day of the Term or any renewal thereof
falls on Saturday or Sunday, this Lease shall expire on the immediately
preceding Business Day.
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SECTION 22.2 HOLDOVER RENT. Landlord and Tenant recognize that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises may be substantial, may exceed the amount of the Rent
theretofore payable hereunder, and will be impossible to accurately measure.
Tenant therefore agrees that if possession of the Premises is not surrendered to
Landlord within 24 hours after the Expiration Date or sooner termination of the
Term, in addition to any other rights or remedies Landlord may have hereunder or
at law, Tenant shall (a) pay to Landlord for each month (or any portion thereof)
during which Tenant holds over in the Premises after the Expiration Date or
sooner termination of the Term, a sum equal to 150 percent of the Rent payable
under this Lease for the last full calendar month of the Term for the first 30
days of such holdover and 200 percent of such Rent for any period thereafter,
(b) if such holdover exceeds 30 days be liable to Landlord for (i) any payment
or rent concession which Landlord may be required to make to any tenant obtained
by Landlord for all or any part of the Premises (a "New Tenant") in order to
induce such New Tenant not to terminate its lease by reason of the holding-over
by Tenant, and (ii) the loss of the benefit of the bargain if any New Tenant
shall terminate its lease by reason of the holding-over by Tenant, and (c) if
such holdover exceeds 30 days, indemnify Landlord against all claims for damages
by any New Tenant. No holding-over by Tenant, nor the payment to Landlord of the
amounts specified above, shall operate to extend the Term hereof. Nothing herein
contained shall be deemed to permit Tenant to retain possession of the Premises
after the Expiration Date or sooner termination of this Lease, and no acceptance
by Landlord of payments from Tenant after the Expiration Date or sooner
termination of the Term shall be deemed to be other than on account of the
amount to be paid by Tenant in accordance with the provisions of this Article
22. All of Tenant's obligations under this Article 22 shall survive the
expiration or earlier termination of the Term of this Lease.
ARTICLE 23
QUIET ENJOYMENT
Provided this Lease is in full force and effect and no Event of
Default then exists, Tenant may peaceably and quietly enjoy the Premises without
hindrance by Landlord or any person lawfully claiming through or under Landlord,
subject to the terms and conditions of this Lease and to all Superior Leases and
Mortgages.
ARTICLE 24
NO SURRENDER; NO WAIVER
SECTION 24.1 NO SURRENDER OR RELEASE. No act or thing done by Landlord
or Landlord's agents or employees during the Term shall be deemed an acceptance
of a surrender of the Premises, and no provision of this Lease shall be deemed
to have been waived by Landlord, unless such waiver is in writing and is signed
by Landlord, and any such waiver shall be effective only for the specific
purpose and in the specific instance in which given. If Tenant at any time
desires to have Landlord sublet the Premises for Tenant's account, Landlord or
Landlord's agents are authorized to receive Tenant's keys to the Premises for
such purpose without releasing Tenant from any of the obligations under this
Lease, and Tenant hereby relieves Landlord of any liability for loss of or
damage to any of Tenant's effects in connection with such subletting.
SECTION 24.2 NO WAIVER. The failure of either party to seek redress for
violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease, or any of the Rules and Regulations, shall not be
construed as a waiver or relinquishment for the future performance of such
obligations of this Lease or the Rules and Regulations, or of the right to
exercise such election but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission. The receipt by
Landlord of any Rent payable pursuant to this Lease or any other sums with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Fixed Rent or Additional Rent herein stipulated shall be
deemed to be other than a payment on account of the earliest stipulated Fixed
Rent or Additional Rent, or as Landlord may elect to apply such payment, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as Fixed Rent or Additional 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 Fixed Rent or Additional Rent or
pursue any other remedy provided in this Lease. The existence of a right of
renewal or extension of this Lease, or the exercise of such right, shall not
limit Landlord's right to terminate this Lease in accordance with the terms
hereof, or create any option for further extension or renewal of this Lease.
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ARTICLE 25
WAIVER OF TRIAL BY JURY
LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY
MATTERS IN ANY WAY ARISING OUT OF OR CONNECTED WITH THIS LEASE, THE RELATIONSHIP
OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR THE
ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE. If Landlord
commences any summary proceeding against Tenant, Tenant will not interpose any
counterclaim of any nature or description in any such proceeding (unless failure
to impose such counterclaim would preclude Tenant from asserting in a separate
action the claim which is the subject of such counterclaim), and will not seek
to consolidate such proceeding with any other action which may have been or will
be brought in any other court by Tenant.
ARTICLE 26
INABILITY TO PERFORM
This Lease and the obligation of Tenant to pay Rent and to
perform all of the other covenants and agreements of Tenant hereunder shall not
be affected, impaired or excused by any Unavoidable Delays. Landlord shall use
reasonable efforts to promptly notify Tenant of any Unavoidable Delay which
prevents Landlord from fulfilling any of its obligations under this Lease.
ARTICLE 27
NOTICES
Except as otherwise expressly provided in this Lease, consents,
notices, demands, requests, approval or other communications given under this
Lease shall be in writing and shall be deemed sufficiently given or rendered if
delivered by hand (provided a signed receipt is obtained) or if sent by
registered or certified mail (return receipt requested) or by a nationally
recognized overnight delivery service making receipted deliveries, addressed as
follows:
if to Tenant, (a) at Tenant's address set forth on the first page
of this Lease, Attn: ____________ if mailed prior to Tenant's taking
possession of the Premises, or (b) at the Building, Attn: _____________
if mailed subsequent to Tenant's taking possession of the Premises, or
(c) at any place where Tenant or any agent or employee of Tenant may be
found if mailed subsequent to Tenant's vacating, deserting, abandoning
or surrendering the Premises, or
if to Landlord, at Landlord's address set forth on the first page
of this Lease, Attn: Chief Financial Officer, and with copies to (v)
Tishman Speyer Properties L.P., 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx, 00000 Attn: Property Manager, (w) Tishman Speyer Properties
L.P., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: General
Counsel, (x) Tishman Speyer Properties L.P., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: Head of Management Department (y) Tishman
Speyer Properties, L.P., 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, Attn: Regional Manager, and (z) any Mortgagee or Lessor
which shall have requested copies of notices, by notice given to Tenant
in accordance with the provisions of this Article 27 at the address
designated by such Mortgagee or Lessor;
or to such other address(es) as either Landlord or Tenant or any Mortgagee or
Lessor may designate as its new address(es) for such purpose by notice given to
the other in accordance with the provisions of this Article 27. Any such
approval, consent, notice, demand, request or other communication shall be
deemed to have been given on the date of receipted delivery or refusal to accept
delivery or three Business Days after it shall have been mailed as provided in
this Article 27.
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ARTICLE 28
RULES AND REGULATIONS
Tenant and Tenant's contractors, employees, agents, visitors and
licensees shall observe and comply with the Rules and Regulations, as
supplemented or amended from time to time, provided, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations as originally promulgated or as supplemented or amended
from time to time, the provisions of this Lease shall control. Landlord reserves
the right, from time to time, to adopt additional Rules and Regulations and to
amend the Rules and Regulations then in effect, which shall become effective
against Tenant upon delivery of such additional or amended Rules and Regulations
to Tenant. Nothing contained in this Lease shall impose upon Landlord any
obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease against any other Building tenant, and Landlord
shall not be liable to Tenant for violation of the same by any other tenant, its
employees, agents, visitors or licensees, except that Landlord shall not enforce
any Rule or Regulation against Tenant in a discriminatory fashion.
ARTICLE 29
PARTNERSHIP TENANT
SECTION 29.1 PARTNERSHIP TENANT. If Tenant, or a permitted assignee of
this Lease pursuant to Article 15 hereof, is a partnership, or is comprised of
two or more persons, individually or as co-partners of a partnership (any such
partnership and such persons are referred to in this Article 29 as "Partnership
Tenant"), the following shall apply: (a) the liability of each of the general
partners comprising Partnership Tenant shall be joint and several; (b) each of
the parties comprising Partnership Tenant hereby consents in advance to, and
agrees to be bound by, any written instrument which may hereafter be executed by
Partnership Tenant or any of the parties comprising Partnership Tenant, which
shall modify, extend or discharge this Lease, in whole or in part, or surrender
all or any part of the Premises to Landlord; (c) any bills, statements, notices,
demands, requests or other communications given or rendered to Partnership
Tenant or to any of such parties shall be binding upon Partnership Tenant and
all such parties; (d) if Partnership Tenant shall admit new general partners,
all of such new general partners shall, by their admission to Partnership
Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on
Tenant's part to be observed and performed; (e) Partnership Tenant shall give
prompt notice to Landlord of the admission of any such new general partners, and
upon demand of Landlord, shall cause each such new partner to execute and
deliver to Landlord an agreement in form and substance satisfactory to Landlord,
wherein each such new partner shall assume joint and several liability for the
performance of all the terms, covenants and conditions of this Lease on Tenant's
part to be observed and performed (but neither Landlord's failure to request any
such agreement nor the failure of any such new partner to execute or deliver any
such agreement to Landlord shall vitiate the provisions of this Section 29.1(e);
and (f) no change in the partners of Partnership Tenant resulting from the
admission of a new partner, or the death, retirement or withdrawal of a partner
shall release Partnership Tenant or any partner or former partner from their
obligations under this Lease.
SECTION 29.2 CHANGE OF PARTNERS. If Tenant is a partnership, (a) the
admission of new partners, the withdrawal (in the ordinary course of business),
retirement, death, incompetency or bankruptcy of any partner, or the
reallocation of partnership interests among the general partners of Tenant (the
"Partners") shall not constitute an assignment of this Lease provided that
Partners holding in the aggregate not less than 80% of the partnership interests
in Tenant remain as Partners during any consecutive 12-month period (i.e., the
transfer, by any of the foregoing means, of more than 20% of the partnership
interests in Tenant in any consecutive 12-month period shall constitute an
assignment of this Lease subject to the provisions of Article 15), and (b) the
reorganization of Tenant into a professional corporation, a limited liability
company or a limited liability partnership, or the reorganization of Tenant from
a professional corporation, limited liability company or a limited liability
partnership into a partnership, shall not constitute an assignment of this
Lease, provided that immediately following such reorganization the members,
partners or shareholders, as the case may be, of Tenant shall be the same as
those existing immediately prior to such reorganization, and shall remain fully,
jointly and severally liable under this Lease as provided in this Section 29.2.
If Tenant shall become a professional corporation, each individual shareholder,
shareholder-employee, new individual shareholder and new shareholder-employee of
any professional corporation which is a shareholder in Tenant shall have the
same personal liability (if any) as such individual or shareholder-employee
would have under this Lease if Tenant were a partnership and such individual or
shareholder-employee were a Partner or admitted as a new Partner. If any
individual Partner in Tenant is or becomes a shareholder-employee of a
professional corporation or a member of a limited liability company, such
individual shall have the same personal liability under this Lease as such
individual would have if he and not the professional corporation or limited
liability company were a Partner of Tenant. If Tenant shall become a limited
liability company each individual member, member employee, new individual member
or new member employee of any limited liability company which is a member of
Tenant shall have the same personal liability (if any)
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as such individual or member employee would have under this Lease if Tenant were
a partnership and such individual or member employee were a Partner or admitted
as a new Partner. If Tenant shall become a limited liability partnership or
limited liability company, (i) each partner or member therein shall continue to
have the same personal liability as such partner had under this Lease prior to
Tenant becoming a limited liability partnership or company, and (ii) each new
partner or member admitted to such limited liability partnership or company
shall be bound by the provisions of Section 29.1, and shall execute and deliver
to Landlord the assumption agreement required pursuant to Section 29.1(e)
hereof.
ARTICLE 30
BROKER
SECTION 30.1 BROKER REPRESENTATIONS. Landlord has retained Landlord's
Agent as leasing agent in connection with this Lease and Landlord will be solely
responsible for any fee that may be payable to Landlord's Agent. Landlord agrees
to pay a commission to Broker pursuant to a separate agreement. Each of Landlord
and Tenant represents and warrants to the other that it has not dealt with any
broker in connection with this Lease other than Landlord's Agent and the Broker
and that to the best of its knowledge and belief, no other broker, finder or
like entity procured or negotiated this Lease or is entitled to any fee or
commission in connection herewith. The execution and delivery of this Lease by
each party shall be conclusive evidence that each party has relied upon the
foregoing representations and warranties.
SECTION 30.2 INDEMNITY. Each of Landlord and Tenant shall indemnify,
defend, protect and hold the other party harmless from and against any and all
costs expenses, claims and liabilities (including reasonable attorneys' fees and
disbursements) which the indemnified party may incur by reason of any claim of
or liability to any broker, finder or like agent (other than Landlord's Agent
and Broker) arising out of any dealings claimed to have occurred between the
indemnifying party and the claimant in connection with this Lease, and/or the
above representation being false. The provisions of this Article 31 shall
survive the expiration or earlier termination of the Term of this Lease.
ARTICLE 31
INDEMNITY
SECTION 31.1 INDEMNITY.
(a) TENANT'S INDEMNITY. Tenant shall not do or permit to be done any
act or thing upon the Premises or the Building which may subject Landlord to any
liability or responsibility for injury, damages to persons or property or to any
liability by reason of any violation of law or of any Requirement, and shall
exercise such control over the Premises as to fully protect Landlord against any
such liability. Tenant shall indemnify, defend, protect and hold harmless each
of the Indemnities from and against any and all Losses (as defined in subsection
32.1(c) hereof), resulting from any claims (i) against Indemnities arising from
any act, omission or negligence of (A) Tenant, its contractors, licensees,
agents, servants, employees, invitees or visitors or (B) both Landlord and
Tenant, provided, however, that Tenant's liability hereunder with respect to
matters judicially determined to have arisen out of the negligence of Landlord,
which determination shall not be subject to appeal, shall be limited to the
amount of insurance coverage carried by Tenant pursuant to Article 12 of this
Lease, (ii) against the Indemnities arising from any accident, injury or damage
whatsoever caused to any person or to the property of any person and occurring
during or (if Tenant shall continue to use and occupy the Premises) after the
expiration of the Term, in or about the Premises, and (iii) against the
Indemnities resulting from any breach, violation or nonperformance of any
covenant, condition or agreement of this Lease on the part of Tenant to be
fulfilled, kept, observed and performed.
(b) LANDLORD'S INDEMNITY. Landlord shall indemnify, defend and hold
harmless Tenant from and against all claims against Tenant arising from any
accident, injury or damage whatsoever caused to any person or the property of
any person in or about the common or public areas of the Building (specifically
excluding the Premises) not resulting from the negligence of Tenant, its
contractors, licensees, agents, servants, employees, invitees or visitors.
(c) INDEMNITY INCLUSIONS. For purposes of this Article 32, the term
"Losses" means any and all losses, liabilities, damages, claims, judgments,
fines, suits, demands, costs, interest and expenses of any kind or nature
(including reasonable attorneys' fees and disbursements) incurred in connection
with any claim, proceeding or judgment and the defense
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thereof, and including all costs of repairing any damage to the Premises or the
Building or the appurtenances of any of the foregoing to which a particular
Indemnity and hold harmless agreement applies.
SECTION 31.2 DEFENSE AND SETTLEMENT. If any claim, action or proceeding
is made or brought against any Indemnitee, then upon demand by an Indemnitee,
Tenant, at its sole cost and expense, shall resist or defend such claim, action
or proceeding in the Indemnitee's name (if necessary), by attorneys approved by
the Indemnitee, which approval shall not be unreasonably withheld. Attorneys for
Tenant's insurer shall hereby be deemed approved for purposes of this Section
32.2. Notwithstanding the foregoing, an Indemnitee may retain its own attorneys
to participate or assist in defending any claim, action or proceeding involving
potential liability of $5,000,000 or more, provided that Tenant shall control
the defense and Tenant shall pay the reasonable fees and disbursements of such
attorneys. Notwithstanding anything herein contained to the contrary, Tenant may
direct the Indemnitee to settle any claim, suit or other proceeding provided
that (a) such settlement shall involve no obligation on the part of the
Indemnitee other than the payment of money, (b) any payments to be made pursuant
to such settlement shall be paid in full exclusively by Tenant at the time such
settlement is reached, (c) such settlement shall not require the Indemnitee to
admit any liability, and (d) the Indemnitee shall have received an unconditional
release from the other parties to such claim, suit or other proceeding. The
provisions of this Article 32 shall survive the expiration or earlier
termination of this Lease.
ARTICLE 32
MISCELLANEOUS
SECTION 32.1 DELIVERY. This Lease shall not be binding upon Landlord or
Tenant unless and until Landlord shall have executed and delivered a fully
executed copy of this Lease to Tenant.
SECTION 32.2 TRANSFER OF REAL PROPERTY. Landlord's obligations under
this Lease shall not be binding upon the Landlord named herein after the sale,
conveyance, assignment or transfer (collectively a "Transfer") by such Landlord
(or upon any subsequent landlord after the Transfer by such subsequent landlord)
of its interest in the Building or the Real Property, as the case may be, and in
the event of any such Transfer, Landlord (and any such subsequent Landlord)
shall be entirely freed and relieved of all covenants and obligations of
Landlord hereunder, and the transferee of Landlord's interest (or that of such
subsequent Landlord) in the Building or the Real Property, as the case may be,
shall be deemed to have assumed all obligations under this Lease.
SECTION 32.3 LIMITATION ON LIABILITY. The liability of Landlord for
Landlord's obligations under this Lease shall be limited to Landlord's interest
in the Real Property and Tenant shall not look to any other property or assets
of Landlord or the property or assets of any partner, shareholder, director,
officer, principal, employee or agent, directly and indirectly, of Landlord
(collectively, the "Parties") in seeking either to enforce Landlord's
obligations under this Lease or to satisfy a judgment for Landlord's failure to
perform such obligations; and none of the Parties shall be personally liable for
the performance of Landlord's obligations under this Lease.
SECTION 32.4 RENT. Notwithstanding anything to the contrary contained in
this Lease, all amounts payable by Tenant to or on behalf of Landlord under this
Lease, whether or not expressly denominated Fixed Rent, Tenant's Tax Payment,
Tenant's Operating Payment, Electricity Additional Rent, Additional Rent or
Rent, shall constitute rent for the purposes of Section 502(b)(6) of the United
States Bankruptcy Code.
SECTION 32.5 ENTIRE DOCUMENT. This Lease (including any Schedules and
Exhibits referred to herein and all supplementary agreements provided for
herein) contains the entire agreement between the parties and all prior
negotiations and agreements are merged into this Lease. All of the Schedules and
Exhibits attached hereto are incorporated in and made a part of this Lease,
provided that in the event of any inconsistency between the terms and provisions
of this Lease and the terms and provisions of the Schedules and Exhibits hereto,
the terms and provisions of this Lease shall control. All Article and Section
references set forth herein shall, unless the context otherwise requires, be
deemed references to the Articles and Sections of this Lease.
SECTION 32.6 GOVERNING LAW. This Lease shall be governed in all respects
by the laws of the State of Illinois.
SECTION 32.7 UNENFORCEABILITY. If any provision of this Lease, or its
application to any person or circumstance, shall ever be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such provision to any other person or any other circumstance
(other than those as to which it shall be invalid or unenforceable) shall not be
thereby affected, and each provision hereof shall remain valid and enforceable
to the fullest extent permitted by law.
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SECTION 32.8 LEASE DISPUTES.
(a) Except as expressly provided to the contrary in this Lease,
Tenant agrees that all disputes arising, directly or indirectly, out of or
relating to this Lease, and all actions to enforce this Lease, shall be dealt
with and adjudicated in the state courts of the State of Illinois, County of
Xxxx or the United States District Court for the Northern District of Illinois
(Eastern Division) and for that purpose hereby expressly and irrevocably submits
itself to the jurisdiction of such courts. Tenant agrees that so far as is
permitted under applicable law, this consent to personal jurisdiction shall be
self-operative and no further instrument or action, other than service of
process in one of the manners specified in this Lease, or as otherwise permitted
by law, shall be necessary in order to confer jurisdiction upon it in any such
court.
(b) To the extent that Tenant has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Tenant irrevocably waives such immunity in respect of its obligations under this
Lease.
SECTION 32.9 LANDLORD'S AGENT. Unless Landlord shall render written
notice to Tenant to the contrary, Tishman Speyer Properties, L.P. is authorized
to act as Landlord's agent in connection with the performance of this Lease, and
Tenant shall direct all correspondence and requests to, and shall be entitled to
rely upon correspondence received from, Tishman Speyer Properties, L.P., as
agent for the Landlord in accordance with Article 27. Tenant acknowledges that
Tishman Speyer Properties, L.P. is acting solely as agent for Landlord in
connection with the foregoing; and neither Tishman Speyer Properties, L.P. nor
any of its direct or indirect partners, officers, shareholders, directors,
employees, principals, agents or representatives shall have any liability to
Tenant in connection with the performance of this Lease, and Tenant waives any
and all claims against any and all of such parties arising out of, or in any way
connected with, this Lease, the Building or the Real Property.
SECTION 32.10 ESTOPPEL.
(a) Within ten days following request from Landlord, any Mortgagee
or any Lessor, Tenant shall deliver to Landlord a written statement executed and
acknowledged by Tenant, in form reasonably satisfactory to Landlord, (i) stating
the Commencement Date and the Expiration Date, and that this Lease is then in
full force and effect and has not been modified (or if modified, setting forth
all modifications), (ii) setting forth the date to which the Fixed Rent and any
Additional Rent have been paid, together with the amount of monthly Fixed Rent
then payable, (iii) stating whether or not, to the best of Tenant's knowledge,
Landlord is in default under this Lease, and, if Landlord is in default, setting
forth the specific nature of all such defaults, (iv) stating the amount of the
Security Deposit, if any, under this Lease, (v) stating whether there are any
subleases or assignments affecting the Premises, (vi) stating the address of
Tenant to which all notices and communication under the Lease shall be sent, and
(vii) responding to any other matters reasonably requested by Landlord, such
Mortgagee or such Lessor. Tenant acknowledges that any statement delivered
pursuant to this Section 33.10 may be relied upon by any purchaser or owner of
the Real Property or the Building, or all or any portion of Landlord's interest
in the Real Property or the Building or any Superior Lease, or by any Mortgagee,
or assignee thereof or by any Lessor, or assignee thereof. Simultaneously with
the execution of this Lease, Tenant shall execute and deliver to Landlord the
Lease Estoppel Certificate attached hereto as Exhibit H.
(b) Within ten days following request from Tenant, Landlord shall
deliver to Tenant a written statement executed and acknowledged by Landlord, in
a form reasonably acceptable to Tenant, (i) stating the Commencement Date and
the Expiration Date, and that this Lease is then in full force and effect and
has not been modified (or if modified, setting forth all modifications), (ii)
setting forth the date to which the Fixed Rent and any Additional Rent have been
paid, together with the amount of monthly Fixed Rent then payable, (iii) stating
whether or not, to the best of Landlord's knowledge, Tenant is in default under
this Lease, and, if Tenant is in default, setting forth the specific nature of
all such defaults, (iv) stating the amount of the Security Deposit, if any,
under this Lease, (v) stating whether there are any subleases or assignments
affecting the Premises, (vi) stating the address of Tenant to which all notices
and communication under the Lease shall be sent, and (vii) responding to any
other matters regarding the Lease reasonably requested by Tenant.
SECTION 32.11 CERTAIN INTERPRETATIONAL RULES. For purposes of this
Lease, whenever the words "include", "includes", or "including" are used, they
shall be deemed to be followed by the words "without limitation" and, whenever
the circumstances or the context requires, the singular shall be construed as
the plural, the masculine shall be construed as the feminine and/or the neuter
and vice versa. This Lease shall be interpreted and enforced without the aid of
any canon, custom or rule of law requiring or suggesting construction against
the party drafting or causing the drafting of the provision in question.
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SECTION 32.12 CAPTIONS. The captions in this Lease are inserted only as
a matter of convenience and for reference and in no way define, limit or
describe the scope of this Lease or the intent of any provision hereof.
SECTION 32.13 PARTIES BOUND. The terms, covenants, conditions and
agreements contained in this Lease shall bind and inure to the benefit of
Landlord and Tenant and, except as otherwise provided in this Lease, to their
respective legal representatives, successors, and assigns.
SECTION 32.14 DIRECTORY. The lobby shall contain a directory wherein the
Building's tenants shall be listed.
SECTION 32.15 COUNTERPARTS. This Lease may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
SECTION 32.16 JOINT AND SEVERAL OBLIGATIONS. If Tenant is comprised of
more than one party, each party shall be jointly and severally liable for
Tenant's obligations under this Lease, and default in the performance by one of
them shall in no way affect the obligation of the other(s). The several
obligations and liabilities of each party hereunder shall not be released,
discharged or in any way affected by any reorganization, arrangement,
compromise, composition or plan affecting any other such party or any change,
waiver, extension, indulgence or other action or omission in respect of any
obligation of any other such party, whether or not each such party shall have
had any notice or knowledge of any of the foregoing. Each such party hereby
irrevocably appoints and authorizes the other to act as its agent hereunder with
full power and authority to act on its behalf in connection with this Lease.
Landlord shall be entitled to treat any notice from or consent or approval of
any such party as notice from or consent or approval of Tenant and any documents
delivered or payments made to any such party shall be deemed to be made to
Tenant.
SECTION 32.17 AMENDMENTS. No modification, waiver or amendment of this
Lease or any of its provisions shall be binding upon Landlord or Tenant unless
in writing and singed by Landlord and Tenant.
ARTICLE 33
TAX STATUS OF BENEFICIAL OWNERS
Tenant recognizes and acknowledges that Landlord and/or certain
beneficial owners of Landlord may from time to time qualify as real estate
investment trusts pursuant to Sections 856 et seq. of the Code or as entities
described in Section 51.1(a)(2) of the Code, and that avoiding (a) the loss of
such status, (b) the receipt of any income derived under any provision of this
Lease that does not constitute "rents from real property" (in the case of real
estate investment trusts) or that constitutes "unrelated business taxable
income" (in the case of entities described in Section 511 (a)(2) of the Code),
and (c) the imposition of penalty or similar taxes (each an "Adverse Event") is
of material concern to Landlord and such beneficial owners. In the event that
this Lease or any document contemplated hereby could, in the opinion of counsel
to Landlord, result in or cause an Adverse Event, Tenant agrees to cooperate
with Landlord in negotiating an amendment or modification thereof and shall at
the request of Landlord execute and deliver such documents reasonably required
to effect such amendment or modification. Any amendment or modification pursuant
to this Article 34 shall be structured so that the economic results to Landlord
and Tenant shall be substantially similar to those set forth in this Lease
without regard to such amendment or modification. Without limiting any of
Landlord's other rights under this Article 34, Landlord may waive the receipt of
any amount payable to Landlord hereunder and such waiver shall constitute an
amendment or modification of this Lease with respect to such payment. Tenant
expressly covenants and agrees not to enter into any sublease or assignment
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 sublease or assignment 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.
ARTICLE 34
SECURITY DEPOSIT
SECTION 34.1 SECURITY DEPOSIT. Tenant shall deposit the cash Security
Deposit with Landlord upon the execution of this Lease as security for the
faithful performance and observance by Tenant of the terms, covenants and
conditions of this Lease, including the surrender of possession of the Premises
to Landlord as herein provided.
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SECTION 34.2 LETTER OF CREDIT.
(a) In addition to the cash deposit, Tenant shall deliver to
Landlord within 5 days following Tenant's receipt of a fully executed copy of
this Lease and prior to the commencement of the Initial Installations, a clean,
irrevocable, non-documentary and unconditional letter of credit (the "Letter of
Credit") in the amount set forth in Article 1 of the Lease, issued by and
drawable upon any commercial bank, trust company, national banking association
or savings and loan association with offices for banking purposes in the City of
Chicago (the "Issuing Bank"), which has outstanding unsecured, uninsured and
unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness (which is otherwise uninsured and unguaranteed), that is then
rated, without regard to qualification of such rating by symbols such as "+" or
"-" or numerical notation, "Aa" or better by Xxxxx'x Investors Service and "AA"
or better by Standard & Poor's Rating Service, and has combined capital, surplus
and undivided profits of not less than $500,000,000. Such Letter of Credit shall
(a) name Landlord as beneficiary, (b) be in the amount of the Security Deposit,
(c) have a term of not less than one year, (d) permit multiple drawings, (e) be
fully transferable by Landlord without the payment of any fees or charges by
Landlord, and (f) otherwise be in form and content satisfactory to Landlord. If
upon any transfer of the Letter of Credit, any fees or charges shall be so
imposed, then such fees or charges shall be payable solely by Tenant and the
Letter of Credit shall so specify. The Letter of Credit shall provide that it
shall be deemed automatically renewed, without amendment, for consecutive
periods of one year each thereafter during the Term unless the Issuing Bank
sends a notice (the "Non-Renewal Notice") to Landlord by certified mail, return
receipt requested, not less than 45 days next preceding the then expiration date
of the Letter of Credit stating that the Issuing Bank has elected not to renew
the Letter of Credit. Landlord shall have the right, upon receipt of the
Non-Renewal Notice, to draw the full amount of the Letter of Credit, by sight
draft on the Issuing Bank, and shall thereafter hold or apply the cash proceeds
of the Letter of Credit pursuant to the terms of this Article 35. The Issuing
Bank shall agree with all drawers, endorsers and bona fide holders that drafts
drawn under and in compliance with the terms of the Letter of Credit will be
duly honored upon presentation to the Issuing Bank at an office location in
downtown Chicago. The Letter of Credit shall be subject in all respects to the
Uniform Customs and Practice for Documentary Credits (1993 revision),
International Chamber of Commerce Publication No. 500.]
(b) Notwithstanding the foregoing to the contrary, the amount of the
Letter of Credit may be reduced by $85,443.00 on the first anniversary of the
Commencement Date and on each anniversary thereafter if on such date (i) Tenant
has paid all rent due and payable under this Lease prior to such date and (ii)
no Event of Default then exists under this Lease.
SECTION 34.3 APPLICATION OF SECURITY. If Tenant defaults in the payment
or performance of any of the terms, covenants or conditions of this Lease,
including the payment of Rent, Landlord may apply or retain the whole or any
part of the cash Security Deposit or may notify the Issuing Bank and thereupon
receive all or a portion of the Security Deposit represented by the Letter of
Credit and use, apply, or retain the whole or any part of such proceeds, as the
case may be, to the extent required for the payment of any Fixed Rent or any
other sum as to which Tenant is in default including (a) any sum which Landlord
may expend or may be required to expend by reason of Tenant's default, and/or
(b) any damages or Deficiency to which Landlord is entitled pursuant to this
Lease or applicable Requirements, whether such damages or Deficiency accrues
before or after summary proceedings or other reentry by Landlord. If Landlord
applies or retains any part of the Security Deposit or draws on the Letter of
Credit, Tenant, upon demand, shall deposit with Landlord the amount so applied
or retained or increase the amount of the Letter of Credit so that Landlord
shall have the full Security Deposit on hand at all times during the Term. If
Tenant shall fully and faithfully comply with all of the terms, covenants and
conditions of this Lease, the Security Deposit shall be returned to Tenant after
the Expiration Date and after delivery of possession of the Premises to Landlord
in the manner required by this Lease. Tenant expressly agrees that Tenant shall
have no right to apply any portion of the Security Deposit against any of
Tenant's obligations to pay Rent hereunder.
SECTION 34.4 TRANSFER. Upon a sale of the Real Property or the Building
or a leasing of the Building, or any financing of Landlord's interest therein,
Landlord shall have the right to transfer the cash Security Deposit or the
Letter of Credit, as applicable, to the vendee, lessee or lender. With respect
to the Letter of Credit, within five days after notice of such sale, leasing or
financing, Tenant, at its sole cost, shall arrange for the transfer of the
Letter of Credit to the new landlord or the lender, as designated by Landlord in
the foregoing notice or have the Letter of Credit reissued in the name of the
new landlord or the lender. Following a transfer of the Letter of Credit
pursuant to this Section 35.4, Landlord shall provide Tenant with reasonable
evidence of such transfer. Tenant shall look solely to the new landlord or
lender for the return of such cash Security Deposit or Letter of Credit and the
provisions hereof shall apply to every transfer or assignment made of the
Security Deposit to a new landlord. Tenant shall not assign or encumber or
attempt to assign or encumber the cash Security Deposit or Letter of Credit and
neither Landlord nor its successors or assigns shall be bound by any such action
or attempted assignment, or encumbrance.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
as of the day and year first above written.
TENANT:
NETRIGHT TECHNOLOGIES, a ________________
By: _____________________________________
Title: ______________________________
LANDLORD:
TST 55 EAST MONROE, L.L.C.,
a Delaware limited liability company
By: _____________________________________
Its: Authorized Signer
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EXHIBIT A
FLOOR PLAN
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EXHIBIT B
DEFINITIONS
BASE RATE: The annual rate of interest publicly announced from time to
time by Citibank, N.A., or its successor, in New York, New York as its "base
rate" (or such other term as may be used by Citibank, N.A., from time to time,
for the rate presently referred to as its "base rate").
BUILDING SYSTEM: The mechanical, electrical, plumbing, sanitary,
sprinkler, heating, ventilation and air conditioning, security, life-safety,
elevator and other service systems or facilities of the Building up to the point
of localized distribution to the Premises (excluding, however, supplemental HVAC
systems of tenants (including Tenant), sprinklers and the horizontal
distribution systems within and servicing the Premises and by which mechanical,
electrical, plumbing, sanitary, heating, ventilating and air conditioning,
security, life-safety and other service systems are distributed from the base
Building risers, feeders, panelboards, etc.
for provision of such services to the Premises).
BUSINESS DAYS: All days, excluding Saturdays, Sundays and all Holidays.
CODE: The Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder.
COMPARABLE BUILDINGS: Office buildings in downtown Chicago which are a
comparable age, size and class with the Building.
DEFICIENCY: The difference between (a) the Fixed Rent and Additional
Rent for the period which otherwise would have constituted the unexpired portion
of the Term (assuming the Additional Rent for each year thereof to be the same
as was payable for the year immediately preceding such termination or re-entry),
and (b) the net amount, if any, of rents collected under any reletting effected
pursuant to the provisions of the Lease for any part of such period (after first
deducting from such rents all expenses incurred by Landlord in connection with
the termination of this Lease, Landlord's re-entry upon the Premises and such
reletting, including repossession costs, brokerage commissions, attorneys' fees
and disbursements, and alteration costs).
EXCLUDED EXPENSES: (a) Taxes; (b) franchise or income taxes imposed upon
Landlord; (c) mortgage amortization and interest; (d) leasing commissions; (e)
the cost of tenant installations and decorations incurred in connection with
preparing space for any Building tenant, including workletters and concessions;
(f) ground rent, if any; (g) management fees in excess of the greater of (A) 3%
of the gross rentals collected for the Building and (B) fees charged by Landlord
or related entities for the management by any of them of other first class
properties; (h) wages, salaries and benefits paid to any persons (other than
project accountants) above the grade of Building Manager; (i) legal and
accounting fees relating to (A) disputes with tenants, prospective tenants or
other occupants of the Building, (B) disputes with purchasers, prospective
purchasers, mortgagees or prospective mortgagees of the Building or the Real
Property or any part of either, or (C) negotiations of leases, contracts of sale
or mortgages; (j) costs of services provided to other tenants of the Building on
a "rent-inclusion" basis which are not provided to Tenant on such basis; (k)
costs that are reimbursed out of insurance, warranty or condemnation proceeds,
or which are reimbursable by Tenant or other tenants other than pursuant to an
expense escalation clause; (l) costs in the nature of penalties or fines; (m)
costs for services, supplies or repairs paid to any Related Entity in excess of
costs that would be payable in an "arm's length" or unrelated situation; (n)
allowances, concessions or other costs and expenses of improving or decorating
any demised or demisable space in the Building; (o) appraisal, advertising and
promotional expenses in connection with leasing of the Building; (p) the costs
of installing, operating and maintaining a specialty improvement, including a
cafeteria, lodging or private dining facility, or an athletic, luncheon or
recreational club; (q) any costs or expenses (including fines, interest,
penalties and legal fees) arising out of Landlord's failure to timely pay
Operating Expenses or Taxes; (r) costs incurred in connection with the removal,
encapsulation or other treatment of asbestos or any other Hazardous Materials
existing in the Premises as of the date hereof, (s) the cost of capital
improvements other than those expressly included in Operating Expenses pursuant
to Section 8.1 of this Lease, (t) political and charitable contributions and (u)
costs of selling, syndicating, financing or mortgaging the Real Property.
GOVERNMENTAL AUTHORITY (AUTHORITIES): The United States of America, the
City of Chicago, County of Xxxx, State of Illinois, or any political
subdivision, agency, department, commission, board, bureau or instrumentality of
any of the foregoing, now existing or hereafter created, having jurisdiction
over the Real Property or any portion thereof or the curbs, sidewalks, and areas
adjacent thereto.
HAZARDOUS MATERIALS: Any substances, materials or wastes currently or in
the future deemed or defined in any Requirement as "hazardous substances",
"toxic substances", "contaminants", "pollutants" or words of similar import.
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HOLIDAYS: For purposes of determining when services are to be provided
by Landlord, the days observed by either the State in which the Building is
located, the Federal Government or the labor unions servicing the Building as
legal holidays. For all other purposes, the days observed by the Federal
Government as legal holidays.
HVAC SYSTEMS: The Building System designed to provide heating,
ventilation and air conditioning.
INDEMNITEE(IES): Landlord, Landlord's Agent, each Mortgagee and Lessor,
and each of their respective direct or indirect partners, officers,
shareholders, directors, members, trustees, beneficiaries, employees,
principals, contractors, licensees, invitees, servants, agents, or
representatives.
LESSOR: A lessor under a Superior Lease.
MORTGAGE(S): Any mortgage, trust indenture or other financing document
which may now or hereafter affect the Premises, the Real Property, the Building
or any Superior Lease and the leasehold interest created thereby, and all
renewals, extensions, supplements, amendments, modifications, consolidations and
replacements thereof or thereto, substitutions therefor, and advances made
thereunder.
MORTGAGEE(S): Any mortgagee, trustee or other holder of a Mortgage.
PROHIBITED USE: Any use or occupancy of the Premises that in Landlord's
reasonable judgment would: (a) cause damage to the Building, the Premises or any
equipment, facilities or other systems therein; (b) impair the appearance of the
Premises or the Building; (c) interfere with the efficient and economical
maintenance, operation and repair of the Premises or the Building or the
equipment, facilities or systems thereof; (d) adversely affect any service
provided to, and/or the use and occupancy by, any Building tenant or occupants;
(e) violate the certificate of occupancy issued for the Premises or the Building
or (f) adversely affect the image of the Building. Prohibited Use also includes
the use of any part of the Premises for: (i) a restaurant or bar; (ii) the
preparation, consumption, storage, manufacture or sale of food or beverages
(except in connection with vending machines and/or warming kitchens installed
for the use of Tenant's employees only), liquor, tobacco or drugs; (iii) the
business of photocopying, multilith or offset printing (except photocopying in
connection with Tenant's own business); (iv) a typing or stenography business;
(v) a school or classroom (except for classrooms used in connection with
employee or client training programs); (vi) lodging or sleeping; (vii) the
operation of retail facilities (meaning a business whose primary patronage
arises from the generalized solicitation of the general public to visit Tenant's
offices in person without a prior appointment) of a savings and loan association
or retail facilities of any financial, lending, securities brokerage or
investment activity; (viii) a payroll office; (ix) a xxxxxx, beauty or manicure
shop; (x) an employment agency, executive search firm or similar enterprise;
(xi) offices of any Governmental Authority, any foreign government, the United
Nations, or any agency or department of the foregoing; (xii) the manufacture,
retail sale, storage of merchandise or auction of merchandise, goods or property
of any kind to the general public which could reasonably be expected to create a
volume of pedestrian traffic substantially in excess of that normally
encountered in the Premises; (xiii) the rendering of medical, dental or other
therapeutic or diagnostic services; or (xiv) any illegal purposes or any
activity constituting a nuisance.
REQUIREMENTS: All present and future laws, rules, orders, ordinances,
regulations, statutes, requirements, codes and executive orders, extraordinary
and ordinary of (i) all Governmental Authorities, including the Americans With
Disabilities Act, 42 U.S.C. Section 12,101 (et seq.), the Environmental Barriers
Act, 410 ILCS, 25/1-8 (et seq.), and any law of like import, and all rules,
regulations and government orders with respect thereto, and any of the foregoing
relating to Hazardous Materials, environmental matters, public health and safety
matters, (ii) any applicable fire rating bureau or other body exercising similar
functions, affecting the Real Property or the maintenance, use or occupation
thereof, or any street, avenue or sidewalk comprising a part of or in front
thereof or any vault in or under the same and (iii) all requirements of all
insurance bodies affecting the Premises.
RULES AND REGULATIONS: The rules and regulations annexed to and made a
part of this Lease as Exhibit F, as they may be modified from time to time by
Landlord.
SPECIALTY ALTERATIONS: Alterations consisting of kitchens, pantries,
executive bathrooms, raised computer floors, computer installations, safe
deposit boxes, vaults, libraries or file rooms requiring reinforcement of
floors, internal staircases, conveyors, dumbwaiters, and other Alterations of a
similar character.
SUBSTANTIAL COMPLETION. As to any construction performed by any party in
the Premises, including the Initial Installations, any Alterations, or
Landlord's Work, "substantial completion" or "substantially completed" means
that such work has been completed, as reasonably determined by Landlord's
architect, in accordance with (a) the provisions of this Lease applicable
thereto, (b) the plans and specifications for such work, and (c) all applicable
Requirements, except for minor details of construction,
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decoration and mechanical adjustments, if any, the noncompletion of which does
not materially interfere with Tenant's use of the Premises.
SUPERIOR LEASE(S): Any ground or underlying lease of the Real Property
or any part thereof heretofore or hereafter made by Landlord and all renewals,
extensions, supplements, amendments, modifications, consolidations, and
replacements thereof.
TENANT'S PROPERTY: Tenant's movable fixtures and movable partitions,
telephone and other equipment, computer systems, trade fixtures, furniture,
furnishings, and other items of personal property which are removable without
material damage to the Premises or Building.
UNAVOIDABLE DELAYS: Landlord's inability to fulfill or delay in
fulfilling any of its obligations under this Lease expressly or impliedly to be
performed by Landlord or Landlord's inability to make or delay in making any
repairs, additions, alterations, improvements or decorations or Landlord's
inability to supply or delay in supplying any equipment or fixtures, if
Landlord's inability or delay is due to or arises by reason of strikes, labor
troubles or by accident, or by any cause whatsoever reasonably beyond Landlord's
control, including laws, governmental preemption in connection with a national
emergency, Requirements or shortages, or unavailability of labor, fuel, steam,
water, electricity or materials, or delays caused by Tenant or other tenants,
mechanical breakdown, acts of God, enemy action, civil commotion, fire or other
casualty.
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EXHIBIT C
[Intentionally Omitted]
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EXHIBIT D
HVAC SPECIFICATIONS
The HVAC System shall maintain the following temperature conditions in
the Premises (based on ASHRE guidelines 90 and 62 (1% outdoor criterial)).
TEMPERATURE HEATING SEASON COOLING SEASON
----------- -------------- --------------
Outside: -10(degrees)F 94(degrees)F.DB
74(degrees)F.WB
Inside: 72(degrees)F
(-2(degrees)F) 74(degrees)F (+/-2F)
Landlord shall not be responsible for failure to meet the above
performance standards in any portion of the Premises if such failure results
from (A) occupancy in excess of one person per 100 rsf, (B) and electrical load
in excess of six (6) xxxxx per square foot, (C) Tenant's Work or alterations to
the Premises which adversely affects the operation of the system or (D)
installation or placement of equipment or personal property which adversely
affects the operation of the HVAC system.
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EXHIBIT E
CLEANING SPECIFICATIONS
GENERAL CLEANING
NIGHTLY
General Offices:
1. All hard surfaced flooring to be swept using approved dustdown
preparation.
2. Carpet sweep all carpets, moving only light furniture (desks, file
cabinets, etc. not to be moved).
3. Hand dust and wipe clean all furniture, fixtures and window xxxxx.
4. Empty all waste receptacles and remove wastepaper.
5. Wash clean all Building water fountains and coolers.
6. Sweep all private stairways.
Lavatories:
1. Sweep and wash all floors, using proper disinfectants.
2. Wash and polish all mirrors, shelves, bright work and enameled
surfaces.
3. Wash and disinfect all basins, bowls and urinals.
4. Wash all toilet seats.
5. Hand dust and clean all partitions, tile walls, dispensers and
receptacles in lavatories and restrooms.
6. Empty paper receptacles, fill receptacles and remove wastepaper.
7. Fill toilet tissue holders.
8. Empty and clean sanitary disposal receptacles.
WEEKLY
1. Vacuum all carpeting and rugs.
2. Dust all door louvers and other ventilating louvers within a person's
normal reach.
3. Wipe clean all brass and other bright work.
X-0
00
XXXXXXXXX
Xxxx dust premises complete including the following:
1. Dust all pictures, frames, charts, graphs and similar wall hangings
not reached in nightly cleaning.
2. Dust all vertical surfaces, such as walls, partitions, doors, bucks
and other surfaces not reached in nightly cleaning.
3. Dust all venetian blinds.
4. Wash all windows.
Landlord shall have the right to modify the foregoing specifications at
anytime and from time to time provided the level of cleaning is not materially
reduced.
X-0
00
XXXXXXX X
RULES AND REGULATIONS
(1) Tenant will not make or permit to be made any use of the Premises or
Building which, directly or indirectly is forbidden by public law, ordinance or
governmental regulation or which may be dangerous to persons or property, or
which may invalidate or increase the premium cost of any policy of insurance
carried on the Building or covering its operations. Tenant shall not do, or
permit to be done, any act or thing upon the Premises which will be in conflict
with fire insurance policies covering the Building . Tenant, at its sole expense
shall comply with all rules, regulations or requirements of the State Inspection
and Rating Bureau, or any other similar body, and shall not do, or permit
anything to be done upon the premises, or bring or keep anything thereon in
violation of rules, regulations or requirements of the Fire Department, State
Inspection and Rating Bureau, Fire Insurance Rating Organization or other
authority having jurisdiction and then only in such quantity and manner of
storage as not to increase the rate of fire insurance applicable to the
Building.
(2) Tenant assumes full responsibility for: (a) protecting the Premises
from theft, robbery and pilferage (b) keeping the Premises secure and (c)
locking the doors in and to the Premises. All property belonging to Tenant or
any person in the Premises, which is in the Building or the Premises, shall be
there at the risk of Tenant or other person only, and Landlord and its agents
and employees shall not be liable for damage thereto or theft or
misappropriation thereof.
(3) Any person in the Building will be subject to identification by
employees and agents of Landlord. All persons in or entering Building shall be
required to comply with the security policies of the Building. Tenant shall keep
doors to unattended areas locked and shall otherwise exercise reasonable
precautions to protect property from theft, loss, or damage.
(4) Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. and at all hours on Saturdays, Sundays and
legal holidays all persons who do not present an approved pass to the Building
signed authorized tenant representative or approved by Landlord. Tenant shall be
responsible for all persons for whom a pass shall be issued at the request of
Tenant and shall be liable to Landlord for all acts of such persons.
(5) Subject to applicable laws and ordinances, all stairwell doors shall
be locked to prevent access from the stairwell side. Except to the extent
expressly permitted in the Lease, Tenant shall not use the stairwells to move
from floor to floor.
(6) After Building standard hours no person shall be allowed to gain
elevator access to any floor in the Building unless such person has adequate
Building identification and, if applicable, a card key.
(7) Landlord reserves the right to refuse any request by an employee,
agent, servant, visitor or licensee of Tenant to unlock doors to Tenant's suite
without proper authorization from a Tenant representative. Landlord reserves the
right to charge the Tenant for this service as it is performed.
(8) Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
(9) Tenant and Tenant's employees, directors and contractors shall
evacuate the Premises and the Building in the event of a life threatening
emergency which necessitates a general evacuation of the Building, and at such
time as evacuation is required in order to comply with fire or similar drills
required by applicable statues or codes.
(10) The sidewalks, walks, entries, corridors, concourses, ramps,
staircases, escalators, and elevators shall not be obstructed or used by Tenant,
or the employees, agents, servants, visitors, or licensees of Tenant for any
purpose other than ingress and egress to and from the Premises.
(11) Any hand trucks, carryalls, or similar appliances used for the
delivery or receipt of merchandise or equipment shall be equipped with rubber
tires, side guards, and such other safeguards as Landlord shall require.
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(12) All removals or the carrying in or out of any freight, furniture,
packages, boxes, crates or any other object or matter of any description must
take place during Building standard hours and in such manner and using such
elevators as Landlord or its Agent may determine from time to time. Landlord
reserves the right to require that any delivery of freight, furniture or bulky
material requiring exclusive use of the freight elevator and/or more than two
trips be scheduled in advance for after-hour delivery. A freight elevator
operator and dock guard must be posted during after-hour deliveries and/or
removals. The cost for this personnel will be set by the Landlord and subject to
revision from time to time. The Tenant shall pay all costs for the provision of
this personnel. Deliveries on Saturdays and Sundays are subject to a four hour
minimum charge for the freight operator and dock guard. Deliveries or move-ins
scheduled during the week but begin after 6:00 p.m. shall be subject to a four
hour minimum.
(13) Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of theses Rules and Regulations. Landlord may require
any person leaving the public areas of the Building with any package or other
object or matter to submit a pass, signed by an authorized representative of the
Tenant, listing such package or object matter being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibility on the Landlord for the protection of any Tenant against the
removal of property from the premises of such Tenant.
(14) Tenant may, at its sole cost and expense and subject to compliances
with all applicable requirements of the Lease, install and maintain vending
machines for the exclusive use by Tenant, its officers, employees and business
guests, provided that each machine, where necessary shall have a waterproof mat
underneath and be connected to a drain. Tenant shall not permit the delivery of
any food or beverage to the Premises, except by such persons delivering the same
shall be approved by Landlord, which approval shall not be unreasonably withheld
or delayed.
(15) Tenant shall be responsible for the delivery and pick up of all
mail from the United States post Office.
(16) The requirements of Tenant will be attended to upon verbal and/or
written request at the Office of the Building. Employees shall not perform any
work or do anything outside of the regular duties, unless under special
instructions from the Office of the Landlord.
(17) Tenant may request heating and/or air conditioning for non-business
hours by submitting a written request therefor to the Office of the Building
during normal business hours at least twenty-four (24) hours prior to the time
such additional services are needed. If additional services are required for a
Sunday, then the request should be received in the Office of the Building no
later than the close of business on the preceding Friday. There is a four hour
minimum usage and charge for additional HVAC service requested and provided
after the equipment has been shut down. The costs for additional HVAC services
are published by the Office of the Building and such costs are revised from time
to time.
(18) No Tenant shall employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the premises, unless otherwise agreed to
by Landlord in writing. No Tenant shall cause any unnecessary labor by reason of
such Tenant's carelessness or indifference in the preservation of good order and
cleanliness. Tenant shall not clean or permit the cleaning of any window in the
premises from the outside. Tenant shall at all times keep the Premises neat,
orderly and in good repair.
(19) Each Tenant shall, at its expense, provide artificial light for the
employees of Landlord while doing janitor service or other cleaning, and in
making repairs or alterations in said Premises.
(20) The work of the janitor or cleaning personnel shall not be hindered
by Tenant after 5:30 p.m. Landlord's cleaning personnel may clean the exterior
windows at any time. Tenant shall provide adequate waste receptacles and
recycling bins to prevent unreasonable hardship to Landlord in discharging its
obligation regarding cleaning services.
(21) Tenant shall not at any time, place, leave, or discard any rubbish,
paper, articles, or objects or any kind whatsoever outside the doors of the
Premises or in the corridors, freight elevator lobbies or passageways of the
Building. Tenant shall use its best efforts to cause its employees, agents,
servants, visitors, and licensees to comply with the foregoing.
(22) Each Tenant shall store all its trash, garbage and recyclables
within its Premises. No material shall be disposed of which may result in a
violation of any law or ordinance governing such disposal. All garbage and
refuse disposal shall be made
F-2
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only through entry ways and elevators provided for such purposes and at such
times as Landlord shall designate. Tenant shall use Building's hauler unless
otherwise stipulated in Lease.
(23) Landlord's compactor and dumpsters are to be used for normal paper
and wet waste associated with the Tenant's operation. Any excessive discarding
of refuse including file purging, "spring cleaning", furniture disposal,
equipment disposal and packaging from deliveries is considered to be beyond
normal use. The cost for such excess disposal shall be the sole responsibility
of the Tenant. Tenant will pay Landlord's published charges for the removal and
hauling of excess refuse. Such charges may be revised from time to time.
(24) The water and wash closets, electrical closets, mechanical rooms,
fire stairs, drinking fountains, toilets, urinals, sinks and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed. No sweepings, rubbish, rags, coffee grounds, or other substances
shall be deposited therein. All damages resulting from the misuse of the
fixtures by the Tenant who or whose servants, employees, agents, visitors or
licensees shall have caused the same.
(25) Tenant shall not waste electricity or water and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning, and shall refrain from attempting to adjust any
controls.
(26) Tenant shall lower and adjust the Venetian blinds on the windows in
the Premises if such lowering and adjustments reduces the sun load.
(27) No awnings, shutters, or other projections shall be attached to the
outside walls of the Building. No draperies or other window coverings or
obstructions shall be attached to or hung in or used in connection with any
exterior window or entry door of the Premises without the prior written consent
of Landlord. Tenant shall not remove any Building standard window coverings
designated and approved by Landlord for exclusive use throughout the Building.
(28) In accordance with the Alteration section of the Lease, Landlord
shall review and approve architectural and engineering drawings. The
review/alteration of Tenant drawings and/or specifications by Tishman Speyer
Properties, L.P. and any of its representatives is not intended to verify the
Tenant's engineering or design requirements and/or solutions. The
review/alteration is performed to determine compatibility with the building's
systems and lease conditions.
(29) Tenant renovations are to be performed by those contractors and
subcontractors on the Landlord's approved contractors list, adhere to the
Building's applicable Standard Operating Procedures, be compatible with Building
systems and other common systems.
(30) Except as otherwise set forth in the Lease, and except for areas
designated by Tenant as "security areas," no additional locks or bolts of any
kind which are not operable by the master key or card for the Building shall be
placed on any door in the Building or the Premises and no lock on any door
therein shall be changed or altered in any respect which will make it inoperable
by the master key or card. Landlord shall furnish two keys for each lock on
exterior doors to the Premises and shall, on Tenant's request and at Tenant's
expense, provide additional duplicate keys at Landlord's published price. All
keys which can be collected by Tenant shall be returned to Landlord upon
termination of this Lease. Landlord may at all times keep a pass key to the
Premises except for security areas. In the event of an emergency that requires
Landlord to enter a security area by force, Tenant shall be responsible for any
and all repairs necessary to restore secured area to its original condition.
Except for reception areas, all entrance doors to the Premises shall be left
closed at all times, and left locked when the Premises are not in use.
(31) Except as provided in Article 6.1(a), no Tenant shall xxxx, paint,
drill into or in any way deface any part of the Premises or the Building, except
with the prior written consent of Landlord. Except as otherwise provided in the
Lease, Tenant shall not install any signal, communication, alarm or other
utility or service system or equipment without the prior written consent of
Landlord. If Tenant desires telegraphic, telephonic, burglar alarm or signal
service, Landlord will, upon request, direct where and how connections and all
wiring for such service shall be introduced and run. Without such directions, no
boring, cutting or installation of wires or cables is permitted.
(32) Tenant shall not place, or cause or allow to be placed, any sign,
advertisement, notice or lettering whatsoever in the Premises. Except as set
forth in the Lease, unless Tenant leases an entire floor, Tenant shall not place
any sign or lettering in or
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about the Premises except in and at such places as may be designated by Landlord
and consented to by Landlord in writing. All lettering and/or graphics on
multi-tenant floors shall confirm to the standards prescribed by Landlord.
(33) Landlord shall have the right to prohibit any advertising by Tenant
which, in Landlord's reasonable opinion, tends to impair the reputation of the
Building or its desirability for offices, and, upon written notice from
Landlord, Tenant will refrain from or discontinue such advertising. Tenant shall
not use the name of the Building except as an address or use pictures or
illustrations of the Building without the prior written consent of Landlord.
(34) Canvassing, soliciting, or peddling in the Building is prohibited
and Tenant shall cooperate to prevent same.
(35) Upon learning thereof, Tenant shall give reasonable, prompt notice
to Landlord in case of theft, unauthorized solicitation, or accident in the
Premises, the Garage or in the Building or for defects in the Building or any of
Landlord's fixtures or equipment, or any known emergency therein.
(36) Tenant shall not serve, nor permit the serving of, alcoholic
beverages in the Premises unless Tenant obtains appropriate host liquor
liability insurance in an amount determined by Landlord and naming Landlord and
its Agents as additional insureds. Certificates of such insurance shall be
provided to Landlord in the same manner and on the same conditions as set forth
in the Lease for Tenant's commercial general liability insurance.
(37) Except for material normally used in connection with the uses
permitted under the Lease, Tenant shall not, without Landlord's prior written
approval, bring or permit to be brought or kept in or on the Premises any
inflammable, combustible, corrosive, caustic, poisonous, explosive or hazardous
substances, or cause or permit any odors to permeate in or emanate from the
Premises, in violation of Hazardous Substances Laws. Any such substance allowed
in the Premises shall be stored in a cabinet and location approved by Landlord.
The Landlord shall require Tenant to provide Material Safety Data Sheets (MSDS)
on any such substance stored in the Premises. Such MSDS shall be updated
annually as required by the Landlord.
(38) No Tenant shall lay floor tile, or other similar floor covering so
that the same shall come in direct contact with the floor of the Premises and,
if such floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste or other material,
soluble in water, the use of cement or other similar adhesive material being
expressly prohibited.
(39) Tenant shall, at its expense, cause the Premises to be
exterminated, from time to time as Landlord may reasonably direct or whenever
there is evidence of infestation to Landlord's reasonable satisfaction, by
licensed exterminators approved by Landlord.
(40) Tenant shall not overload floors. Tenant shall obtain Landlord's
prior written approval as to size, maximum weight, routing and location of
business machines, high density filing systems, safes and heavy objects. Tenant
shall not install or operate machinery or any mechanical devices of a nature not
directly related to Tenant's permitted use of the Premises.
(41) Except to the extent expressly provided in the Lease, no Tenant's
employee, visitor or contractor shall be permitted to have access to the
Building's roof, mechanical, electrical or telephone rooms/closets without
permission from the Landlord.
(42) Except to the extent expressly permitted by the Lease, the Premises
shall not be used for (i) a restaurant or bar; (ii) the preparation,
consumption, storage, manufacture or sale of food or beverages (except in
connection with vending machines and/or warming kitchens installed for the use
of Tenant's employees only), liquor, tobacco or drugs; (iii) the business of
photocopying, multilith or offset printing (except photocopying in connection
with Tenant's own business); (iv) a typing or stenography business; (v) a school
or classroom (except for classrooms used in connection with employee or client
training programs); (vi) lodging or sleeping; (vii) the operation of retail
facilities (meaning a business whose primary patronage arises from the
generalized solicitation of the general public to visit Tenant's offices in
person without a prior appointment of a savings and loan association or retail
facilities of any financial, lending, securities brokerage or investment
activity; (viii) a payroll office; (ix) a xxxxxx, beauty or manicure shop; (x)
an employment agency, executive search firm or similar enterprise; (xi) offices
of any Governmental Authority, any foreign government, the United Nations, or
any agency or department of the foregoing; (xii) the manufacture, retail sale,
storage of merchandise or auction of merchandise, goods or property of any kind
to the general public which could reasonably be expected to
F-4
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create a volume of pedestrian traffic substantially in excess of that normally
encountered int he premises; (xiii) the rendering of medical, dental or other
therapeutic or diagnostic services; (xiv) any illegal purposes or any activity
constituting a nuisance; or (xv) any purpose which violates the certificate of
occupancy issued for the Premises or the Building.
(43) Tenant shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances, any of which may be offensive to
the other tenants and occupants of the Building, or that would interfere with
the operation of any device, equipment, radio, television broadcasting or
reception from or within the Building or elsewhere. Tenant shall not place or
install any antennas, aerials, microwave dishes or similar devices outside of
the Premises or on the Building without Landlord's prior written approval.
(44) Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the Premises
which would annoy other tenants or create a public or private nuisance. No
cooking shall be done in the Premises except as is expressly permitted in the
foregoing lease.
(45) Tenant shall not invite to the Premises, or permit the visit of
persons in such number or under such conditions as to interfere with the use and
enjoyment of any of the plazas, entrances, corridors, elevators and other
facilities of the building by other Tenants.
(46) Tenant, its servants, employees, customers, invitees, and guests
shall, when using the parking facilities in and around the Building, observe and
obey all signs regarding fire lanes and no parking zones, and when parking,
always park between the designated lines. Landlord reserves the right to tow, at
the expense of the owner, any vehicle which is improperly parked or parked in a
no parking zone. All vehicles shall be parked at the sole risk of the owner, and
Landlord assumes no responsibility for any damage to or loss of vehicles except
as set forth in this Lease.
(47) Tenant shall be responsible for the actions of its employees,
invitees, vendors and contractors when they are in the Building and Premises
performing work or providing services for the Tenant.
(48) No bicycles, motorcycles, vehicles or animals of any kind (except
for an animal aiding a disabled person) shall be brought into or kept by any
Tenant the Premises or in the Building.
(49) Tenant shall not place or allow anything to be placed against or
near the glass or partitions or doors of the premises which may diminish the
light in, or be unsightly from public corridors, or exterior of the Building.
(50) Halogen desk lamps, space heaters, extension cords and decorative
lights such as those used to decorate holiday trees and wreaths are prohibited
in the Premises.
(51) No Tenant shall accept barbering or shoe shining services in the
Premises, from any company or persons not approved by Landlord, and at hours and
under regulations other than as fixed by Landlord.
(52) Smoking is prohibited in all public areas, including the entrance
doors. Landlord reserves the right to designate smoking areas around the outside
of the Building and prohibit smoking in certain areas around the outside of the
Building.
(53) All contractors and vendors performing work or services in the
Premises shall comply with the Contractor and Vendor Guidelines for the
Building, as in effect from time to time.
(54) Landlord reserves the right to amend, change or modify these Rules
and Regulations from time to time as it deems necessary. Any such amendment,
change or modification shall be effective upon written notice thereof to Tenant.
(55) Landlord reserves the right to change the name of the Building.
(56) Landlord may waive any one or more of these rules and Regulations
from time to time for the benefit of any particular tenant or tenants, but no
such waiver by Landlord shall be construed as a waiver of such Rules and
Regulations in favor or any other tenant or tenants, nor prevent landlord from
thereafter enforcing any such rules and regulations against any or all or the
tenants of the Building.
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58
(57) Landlord shall not be responsible to Tenant or to any other person
for the non-observance or violation of these Rules and Regulations by any other
tenant or other person. Tenant shall be deemed to have read the rules and
Regulations and to have agreed to abide by them as a condition to its occupancy
of the space leased.
(58) In the event of a conflict between these Rules and Regulations and
terms of the Lease, the terms of the Lease shall control.
F-6
59
EXHIBIT G
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Tenant Name: NETRIGHT TECHNOLOGIES
Trade Name: ____________________________
Room/Unit No.: Portion of 17th Floor
THIS AGREEMENT is dated the _____ day of December, 1998, and is made by
and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, having an address c/o
CIGNA Investments, Inc., 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000,
Attn: Real Estate Investment Services S-313 ("Mortgagee"), NETRIGHT TECHNOLOGIES
___________________________, having an address of 00 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 ("Tenant"), and TST 55 EAST MONROE, L.L.C., a Delaware
limited liability company, having an address c/o Tishman Speyer Properties, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Landlord").
RECITALS:
A. Tenant has entered into a lease ("Lease") dated December _____, 1998
with Landlord, covering a portion of the 17th floor (the "Premises") within the
building known as 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Building"),
located on the Real Property, more particularly described as shown on Exhibit A,
attached hereto (the "Real Property").
B. Mortgagee has made a mortgage loan in the amount of $60,000,000 to
Landlord, secured by a mortgage of the Landlord's leasehold interest in the Real
Property (the "Mortgage"), and the parties desire to set forth their agreement
herein.
NOW, THEREFORE, in consideration of the premises and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. The Lease and all extensions, renewals, replacements or modifications
thereof are and shall be subject and subordinate to the Mortgage and all terms
and conditions thereof insofar as it affects the Building of which the Premises
form a part, and to all renewals, modifications, consolidations, replacements
and extensions thereof, to the full extent of amounts secured thereby and
interest thereon.
2. Tenant shall attorn to and recognize any purchaser at a foreclosure
sale under the Mortgage, any transferee who acquires the Premises by deed in
lieu of foreclosure, and the successors and assigns of such purchaser(s), as its
landlord for the unexpired balance (and any extensions, if exercised) of the
term of the Lease on the same terms and conditions set forth in the Lease.
3. If it becomes necessary to foreclose the Mortgage, Mortgagee shall
neither terminate the Lease nor join Tenant in summary or foreclosure
proceedings so long as Tenant is not in default under any of the terms,
covenants, or conditions of the Lease.
4. If Mortgagee succeeds to the interest of Landlord under the Lease,
Mortgagee shall not be:
(a) liable for any act or omission of any prior landlord
(including Landlord);
(b) liable for the return of any security deposit unless such
deposit has been delivered to Mortgagee by Landlord or is an escrow fund
available to Mortgagee;
(c) subject to any offsets or defenses that Tenant might have
against any prior landlord (including Landlord);
G-1
60
(d) bound by any rent or additional rent that Tenant might have
paid for more than the current month to any prior landlord (including Landlord);
(e) bound by any amendment, modification, or termination of the
Lease made without Mortgagee's consent;
(f) personally liable under the Lease, Mortgagee's liability
thereunder being limited to its interest in the Real Property; or
(g) bound by any notice of termination given by Landlord to
Tenant without Mortgagee's prior written consent thereto.
5. This Agreement shall be binding on and shall inure to the benefit of
the parties hereto and their successors and assigns.
6. Tenant shall give Mortgagee, by certified mail, return receipt
requested, or by commercial overnight delivery service, a copy of any notice of
default served on Landlord, at Mortgagee's address set forth above or at such
other address as to which Tenant has been notified in writing. If Landlord shall
have failed to cure such default within the time provided for in the Lease, then
Mortgagee shall have an additional ten (10) days within which to cure any
default capable of being cured by the payment of money and an additional thirty
(30) days within which to cure any other default or if such default cannot be
cured within that time, then such additional time as may be necessary to cure
such default shall be granted if within such thirty (30) days Mortgagee has
commenced and is diligently pursuing the remedies necessary to cure such default
(including, but not limited to, commencement of foreclosure proceedings, if
necessary to effect such cure), in which event the Lease shall not be terminated
while such remedies are being so diligently pursued.
7. Landlord has agreed under the Mortgage and other loan documents that
rentals payable under the Lease shall be paid directly by Tenant to Mortgagee
upon default by Landlord under the Mortgage. After receipt of notice from
Mortgagee to Tenant, at the address set forth above or at such other address as
to which Mortgagee has been notified in writing, that rentals under the Lease
should be paid to Mortgagee, Tenant shall pay to Mortgagee, or at the direction
of Mortgagee, all monies due or to become due to Landlord under the Lease.
Tenant shall have no responsibility to ascertain whether such demand by
Mortgagee is permitted under the Mortgage, or to inquire into the existence of a
default. Landlord hereby waives any right, claim, or demand it may now or
hereafter have against Tenant by reason of such payment to Mortgagee, and any
such payment shall discharge the obligations of Tenant to make such payment to
Landlord.
8. Tenant declares, agrees and acknowledges that Mortgagee, in making
disbursements pursuant to any agreement relating to the Loan, is under no
obligation or duty to, nor has Mortgagee represented that it will, see to the
application of such proceeds by the person or persons to whom Mortgagee
disburses such proceeds, and any application or use of such proceeds for
purposes other than those provided for in such agreement shall not defeat the
subordination herein made in whole or in part.
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61
IN WITNESS WHEREOF, the parties hereto have executed these presents as
of the day and year first above written.
Mortgagee:
CONNECTICUT GENERAL
LIFE INSURANCE COMPANY Date:
------------------------------
By:
--------------------------------
Its:
--------------------------------
Tenant:
NETRIGHT TECHNOLOGIES Date:
------------------------------
By:
--------------------------------
Its:
--------------------------------
Landlord:
TST 55 EAST MONROE, L.L.C.,
a Delaware limited liability
company Date:
------------------------------
By:
--------------------------------
Its: Authorized Signer
X-0
00
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF XXXX )
I, _____________________ a Notary Public in and for said County in the
State aforesaid, DO HEREBY CERTIFY THAT __________________________, an
authorized signer of TST 55 EAST MONROE, L.L.C., in whose name the above and
foregoing instrument is executed, appeared before me this day in person and
acknowledged himself to be authorized to do so, executed the foregoing
instrument for the purposes contained therein by signing the name of the
corporation by himself as such officer.
Given under my hand and Notarial seal this ____ day of ______________,
19__.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------------
[Tenant-corporation]
STATE OF ___________ )
) SS.
COUNTY OF __________ )
On this ______ day of ______________________, 19__, before me, notary
public, the undersigned officer, personally appears __________________, who
acknowledged himself to be the ____________________ of _______________________,
a _________________ corporation, and the foregoing instrument for the purposes
therein contained by signing the name of the corporation by himself as such
officer.
Given under my hand and Notarial seal this ____ day of ______________,
19__.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------------
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63
[Tenant-partnership]
STATE OF _____________ )
) SS.
COUNTY OF ____________ )
On this _____ day of ____________________ in the year ______ before me,
___________________________ a Notary Public of said State, duly commissioned and
sworn, personally appeared ___________________________, known to me (or proved
to me on the oath of _____________) to be a general partner venture of a limited
that executed the within instrument, and acknowledged to me that such
partnership executed the same.
Given under my hand and Notarial seal this ____ day of ______________,
19__.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------------
[Tenant - Limited Liability Company]
STATE OF _____________ )
) SS.
COUNTY OF ____________ )
On this _____ day of ____________________ in the year ______ before me,
___________________________ a Notary Public of said State, duly commissioned and
sworn, personally appeared ___________________________, known to me (or proved
to me on the oath of _____________) to be a general partner of a limited
liability company that executed the within instrument, and acknowledged to me
that such limited liability company executed the same.
Given under my hand and notarial seal this _____ day of ______________,
19__.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------------
X-0
00
XXX XX XXXXXX XX XXXXX)
XXXXX OF CONNECTICUT )
) SS.
COUNTY OF HARTFORD )
On this _____ day of ____________________, personally appeared
___________________________, who acknowledged himself to be the _____________ of
CIGNA Investments, Inc., a corporation, and that he being authorized to do so,
executed the foregoing instrument for the purposes therein contained, by signing
the name of the corporation.
IN WITNESS WHEREOF, I hereunto set my hand.
-----------------------------------------
Notary Public
My Commission Expires:
----------------------------
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65
EXHIBIT A
Description of Premises
PARCEL 1-A:
LOTS TWO AND THREE IN BLOCK FOUR IN FRACTIONAL SECTION 15 ADDITION TO CHICAGO,
IN SECTION 15, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN
IN XXXX COUNTY, ILLINOIS.
PARCEL 1-B:
THE NORTH FIFTY-FOUR FEET OF LOT SIX IN BLOCK FOUR IN FRACTIONAL SECTION 15
ADDITION TO CHICAGO IN SECTION 15, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN IN XXXX COUNTY, ILLINOIS.
PARCEL 2:
THE SOUTH 1/2 OF LOT 7 AND SUBLOTS 1, 2, 3, 4 AND 5 OF ASSESSOR'S DIVISION OF
LOT 10 IN BLOCK 4 IN FRACTIONAL SECTION 15; ADDITION TO CHICAGO, IN SECTION 15,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX
COUNTY, ILLINOIS.
PARCEL 3:
THE NORTH HALF OF LOT SEVEN AND THAT PART OF LOT SIX LYING SOUTH OF THE NORTH
FIFTY-FOUR FEET THEREOF (EXCEPT THE EAST NINE FEET OF SAID LOTS) IN BLOCK FOUR
IN FRACTIONAL SECTION FIFTEEN, ADDITION TO CHICAGO IN SECTION 15, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX COUNTY, ILLINOIS.
PROPERTY ADDRESS: 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
PIN NOS.: 17-15-103-001-0000
17-15-103-002-0000
17-15-103-003-0000
17-15-103-009-8001
17-15-103-009-8002
This Agreement Prepared By and after Recording Return To:
Xxxxx X. Xxxxxxx
Xxxxx & Xxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
G-7
66
EXHIBIT H
LEASE ESTOPPEL CERTIFICATE
Landlord: TST 55 EAST MONROE, L.L.C.
Tenant: NETRIGHT TECHNOLOGIES
Tenant Trade
Name: ____________________________
Premises: 00 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxx: 11,500 Rentable Sq.Ft.
Lease Date: December _______, 1998
The undersigned Tenant of the above-referenced lease (the "Lease") hereby
ratifies the Lease and certifies to Lender as mortgagee of the Building (as
defined in the Lease) of which the premises demised under the Lease (the
"Premises") is a part, as follows:
1. That the term of the Lease will commence on delivery of possession of
the Premises.
2. That the Lease calls for Monthly Fixed Rent (as defined in the
Lease) installments of $10,505.25 as of the Commencement Date and
that the Tenant will be paying monthly installments of Rent (as
defined in the Lease) totaling $24,979.15 (which includes Fixed
Rent, Additional Rent and Electric Rent, if any) which will
commence to accrue on the Commencement Date.
3. That no advance rental or other payment has been made in
connection with the Lease, there is no "free rent" or other
concession under the remaining term of the lease except for:
_________________________________________________________________
_________________________________________________________________
4. That a cash security deposit in the amount of $23,450.00 and a
letter of credit in the amount of $427,215.00 is being held by
Landlord, which amount is not subject to any set-off or reduction
or to any increase for interest or other credit due to Tenant,
except for an annual reduction of the letter of credit in the
amount of $85,443.00.
5. That, to the knowledge of Tenant, all obligations and conditions
under said Lease to be performed to date by Landlord or Tenant
have been satisfied or are in the process of being satisfied,
free of defenses and set-offs including construction of
improvements in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that, to the
knowledge of Tenant, there is no existing default on the part of
the Landlord or the Tenant in any of the terms and conditions
thereof and no event has occurred which, with the passing of time
or giving of notice or both, would constitute an event of
default, and that said Lease has not been amended, modified,
supplemented, extended, renewed or assigned, except:_____________
_________________________________________________________________
_________________________________________________________________
7. That the Lease provides for a primary term of 120 months; the
term of the Lease expires on the 31st day of March, 2009; and
that: (initial one)
( ) neither the Lease nor any of the documents listed above in
Paragraph 6, (if any), contain an option for any additional
terms.
(X) the Lease and/or the documents listed above in Paragraph 6
contain an option for one (1) additional term(s) of five (5)
year(s) at a rent to be determined as follows: at market
67
8. That Landlord has not rebated, reduced or waived any amounts due
from Tenant under the Lease, either orally or in writing, nor has
Landlord provided financing for, made loans or advances to, or
invested in the business of Tenant.
9. That, to the best of Tenant's knowledge, Tenant does not use, nor
has Tenant disposed of, Hazardous Materials in violation of
Environmental Laws on the Real Property or the Premises.
10. That there are no actions, voluntary or involuntary pending
against Tenant under the bankruptcy laws of the United States or
any state thereof.
11. That this certification is made knowing that Landlord's lender,
Connecticut General Life Insurance Company, is relying upon the
representations herein made.
Tenant
NETRIGHT TECHNOLOGIES
By:_________________________________
Its:________________________________
Date: ___________________
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