EXHIBIT 10 (ddd)
LEASE AGREEMENT DATED OCTOBER 3, 2000
BETWEEN THE COMPANY AS LESSEE
AND XXXXXXXX PARTNERS AS LESSOR
472284_8.DOC
XXXXXXXX PARTNERS
Real Estate Investment
OFFICE LEASE AGREEMENT
HP Woodland Falls I, LLC, Landlord
and
CDW Computer Centers, Inc., Tenant
472284_8.DOC 23
472284_8.DOC 1
STANDARD OFFICE LEASE Prepared on: 10/10/00
IL 2/99 By: JKB
LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into between HP Woodland Falls I,
LLC, an Illinois limited liability company ("Landlord") and CDW Computer
Centers, Inc., an Illinois corporation ("Tenant").
I. Basic Terms
A. Date of Lease: October 3, 2000
B. Landlord's Address for Notices: c/o Hamilton Partners
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Landlord's Address For
Rent Payments: 000 Xxxx Xxxxxxxxx
Xxxxxx, XX 00000
C. Tenant's Address for Notices:
(prior to Commencement): 000 X. Xxxxxxxxx Xxx.
Xxxxxx Xxxxx, XX 00000
Attn.: Chief Financial Officer
In either case, copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx & Xxxx
000 X. Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
D. Development: The complex commonly known as Woodland Falls,
Mettawa, IL and shown on the site plan attached as
Exhibit A-2.
E. Property: The real property described in Exhibit A-1,
comprising approximately 8.031 acres and shown on
the site plan attached as Exhibit A-2
F. Building: The improvements currently situated, or to be
constructed pursuant hereto on the Property and
commonly known as Woodland Falls I
G. Premises: The entire Building and Property.
H. Schedule of Base Rent:
====================================================================================================================
Months Square Feet Annual Rent per Annual Base Rent Monthly Base Rent
square foot
====================================================================================================================
1 - 6 156,160 $ 6.97 $1,088.435.20 $90,702.93
7 - 9 156,160 $ 13.93 $2,175,308.80 $181,275.73
10 - 12 156,160 $ 20.90 $3,263,744.00 $271,978.67
13 - 24 156,160 $ 21.47 $3,352,755.20 $279,396.27
25 - 36 156,160 $ 22.06 $3,444,889.60 $287,074.13
37 - 48 156,160 $ 22.67 $3,540,147.20 $295,012.27
49 - 60 156,160 $ 23.29 $3.636,966.40 $303,080.53
61 - 72 156,160 $ 23.93 $3,736,908.80 $311,409.07
73 - 84 156,160 $ 24.59 $3,839,974.40 $319,997.87
85 - 96 156,160 $ 25.27 $3,946,163.20 $328,846.93
97 - 108 156,160 $ 25.96 $4,053,913.60 $337,826.13
109 - 120 156,160 $ 26.67 $4,164,787.20 $347,065.60
====================================================================================================================
If the Commencement Date is not the first day of a calendar
month, the date of each Base Rent increase will be extended
until the first day of the month following the applicable
anniversary of the Commencement Date.
I. Rentable Area of the Building: 156,160 Square Feet
J. Projected Commencement Date: Xxxxx 0, 0000
X. Xxxx: The period of time commencing on the Commencement Date (as defined in
Paragraph 2B) and expiring 120 months after the Commencement Date (except
that if the expiration date would not be the last day of a calendar month
the Term shall extend until the last day of the calendar month), unless
sooner terminated or extended as may be herein provided.
L. Security Deposit: None
M. Permitted Uses: General office and any other lawful use under the
applicable zoning ordinances, subject to the provisions of the annexation
agreement and declaration of covenants affecting the Property
N. Broker(s): CB Xxxxxxx Xxxxx
II. Premises and Term
A. In consideration of the obligation of Tenant to pay rent and the other terms,
provisions, and covenants hereof, Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord the Premises for the Term.
B. If Landlord cannot, using good faith efforts, deliver possession of the
Premises by March 1, 2001, Landlord shall not be deemed to be in default, nor in
any way liable to Tenant because of such failure, except that if Landlord is
unable to deliver possession of the Premises by June 1, 2001, Tenant shall have
the option to terminate this Lease. Tenant agrees to accept possession of the
Premises on the Delivery Date as defined in the Work Letter. Landlord hereby
waives payment of Base Rent and Tenant's Proportionate Share of Taxes and
Operating Expenses covering any period prior to the date which is the later of
the Projected Commencement Date and the Delivery Date (the "Commencement Date").
C. Tenant acknowledges that no representations as to the repair of the Premises,
nor promises to alter, remodel or improve the Premises have been made by
Landlord, unless such are expressly set forth in this Lease or in a writing
signed by both parties. Except as provided in the Work Letter, the taking of
possession by Tenant shall be deemed conclusively to establish that the Premises
have been completed in accordance with the plans and specifications and are in
good and satisfactory condition as of when possession was so taken. Promptly
following the Commencement Date, Tenant shall execute and deliver a letter of
acceptance of delivery of the Premises, in the form attached hereto as Exhibit
F..
D. Provided this Lease is in full force and effect and the Tenant shall not be
in default hereunder, Tenant may renew and extend his Lease two times for five
(5) years each, commencing at the end of the immediately previous term, by
notice in writing delivered to Landlord not less than two hundred seventy (270)
days prior to the expiration date of the then current term of this Lease. All of
the covenants, conditions and provisions of this Lease shall thereupon be
applicable during each said additional five (5) year term except that the amount
of the monthly rental to be paid by the Tenant to Landlord shall be adjusted to
reflect the then current market rental (the determination of which shall take
into account buildouts, allowances and other concessions which are being given)
for similar space in the immediate area. The market rental shall be determined
by a representative of the Tenant and a representative of the Landlord. Such
market rental shall be agreed to by the fifteenth (15th) day after receipt of
notice of Tenant's renewal of the Lease. In no event shall the amount of the
monthly rental during any renewal term be less than the monthly rental during
the last year of the immediately previous term. In the event that an agreement
has not been reached by said fifteenth (15th) day, Landlord and Tenant shall
each select a office leasing broker with at least ten (10) years of experience
in the northern Chicago suburban office market These brokers, in turn, will
select a third broker with the same qualifications. The determination of the
market rental by the panel of three will be made within thirty (30) days and
such determination shall be binding on both parties. Any expenses of such rental
determination shall be borne equally by the parties. In no event shall this
renewal option be in effect if the Premises are assigned, subleased or available
for sublease under any of the provisions of this Lease; provided, however, this
renewal option shall remain in effect if there is an "Immaterial Sublease" of
the Premises. For purposes of this Lease, an Immaterial Sublease shall be deemed
to mean a sublease for, or multiple subleases aggregating to, a portion of the
Premises consisting of less than one full floor in the Building (approximately
25,000 square feet).
III. Base Rent
Tenant agrees to pay to Landlord in lawful money of the United States
Base Rent for the entire Term at the rates set forth above per month, in
advance. Thereafter one such monthly installment shall be due and payable
without demand on or before the first day of each calendar month succeeding the
Commencement Date; further provided, that the rental payment for any fractional
calendar month at the commencement or termination of the Term shall be prorated.
IV. Taxes
A. Landlord agrees to pay all general and special taxes, assessments and
governmental charges of any kind and nature whatsoever (collectively "Taxes")
lawfully levied against the Property, the Building, and the grounds, parking
areas, driveways and alleys around the Building. For each real estate tax year
applicable to the Term or any extension thereof, Tenant shall pay to Landlord as
additional rent upon demand at the time the xxxx for such tax year issues the
Taxes levied for such tax year (on an accrual basis--e.g. assuming rent
commencement January 1, 2001, Tenant would be responsible for the 2001 tax xxxx,
payable in 2002, not the 2000 xxxx actually payable in 2001) less any monthly
payments paid by Tenant as provided below for such tax year. Taxes shall include
all payments for the Special Service Area currently applicable to the
Development (the "Special Service Area") which are contained on the tax bills
applicable to the Property; provided, however, that until such time as the
Development is completed, Taxes shall not include more than 21.06% of the
Special Service Area taxes assessed against the entire Development. Any payment
to be made pursuant to this Article IV with respect to the real estate tax year
in which this Lease commences or terminates shall be prorated. Taxes shall not
include any net income, capital, stock, succession, transfer, franchise, gift,
estate, inheritance or transit fees, taxes, levies or charges. Landlord
represents that, to the best of its knowledge, there are no special assessments
existing, pending or threatened with respect to the Premises, other than the
Special Service Area. Notwithstanding the foregoing, during the first six months
of this Lease, Tenant shall pay only one-third of the Taxes otherwise payable
hereunder and during the three months following the first six months, Tenant
shall pay only two-thirds of the Taxes otherwise payable hereunder.
B. During December of each year or as soon thereafter as practicable, Landlord
shall give Tenant written notice of its estimate of the amount payable under
Paragraph 4A for the ensuing calendar year. On or before the first day of each
month thereafter, Tenant shall pay to Landlord as additional rent one-twelfth
(1/12th) of such estimated amount, provided that if such notice is not given in
December, Tenant shall continue to pay on the basis of the prior year's estimate
until the first day of the month after the month in which such notice is given.
If at any time it appears to Landlord that the amount payable under Paragraph 4A
will vary from its estimate by more than five percent (5%), Landlord may, by
written notice to Tenant, revise its estimate for such year, and subsequent
payments by Tenant for such year shall be based upon such revised estimate.
C. As soon as practicable after the Taxes for a year are determined, Landlord
shall deliver to Tenant a statement showing the Taxes under Paragraph 4A and
Tenant's share thereof. If such statement shows an amount due from Tenant that
is less than the estimated payments previously paid by Tenant, it shall be
accompanied by a refund of the excess to Tenant. If such statement shows an
amount due from Tenant that is more than the estimated payments previously paid
by Tenant, Tenant shall pay the deficiency to Landlord, as additional rent,
within thirty (30) days after delivery of the statement.
D. If at any time during the Term, the present method of taxation shall be
changed so that in lieu of or in addition to the whole or any part of any Taxes,
there shall be levied, assessed or imposed on Landlord a capital levy or other
tax directly on the rents received and/or a franchise tax, assessment, levy or
charge measured by or based, in whole or in part, upon such rents, then all such
taxes, assessments, levies or charges, or the part thereof so measured or based,
shall be deemed to be included within the term "Taxes" for the purposes hereof.
E. In addition to the Taxes, Tenant shall pay to Landlord upon demand any
contingent fees, expenses and costs incurred by Landlord in protesting any
assessments, levies or the tax rate: (1) to the extent that such fees are less
than the reduction in Taxes achieved through such protest; or (2) if Landlord
notified Tenant of its intent to protest Taxes, including information regarding
the fees Landlord proposed to pay, and Tenant did not object to such arrangement
within five (5) business days of notification. Landlord shall protest all Taxes
unless Tenant objects to Landlord's fee proposal or Landlord notifies Tenant of
its intent not to protest Taxes at least twenty (20) days prior to the last date
for filing a protest, whereupon Tenant may pursue such protest at its own cost
and expense and Landlord shall, to the extent necessary, cooperate with Tenant.
V. Operating Costs
A. For each calendar year falling partly or wholly within the Term or any
extension thereof, Tenant shall pay to Landlord as additional rent the Operating
Costs incurred by Landlord for such calendar year less any monthly payments paid
by Tenant as provided below for such year. Any payment to be made pursuant to
this Article V with respect to the year in which this lease commences or
terminates shall be prorated. Notwithstanding the foregoing, during the first
six months of this Lease, Tenant shall pay only one-third of the Operating Costs
otherwise payable hereunder and during the three months following the first six
months, Tenant shall pay only two-thirds of the Operating Costs otherwise
payable hereunder.
B. As used in this Lease, the term "Operating Costs" shall mean any and all
expenses, costs and disbursements (other than Taxes) of any kind and nature
whatsoever incurred by Landlord in connection with the ownership, leasing,
management, maintenance, operation and repair of the Building or the Property or
any improvements situated on the Property (including, without limitation, the
cost of maintaining and repairing parking lots, parking structures, and
easements, property management fees (not to exceed 2% of total rent--including
additional rent--paid by Tenant), salaries, fringe benefits and related costs,
for building staff, including building management and accounting personnel;
insurance costs of such kind and nature as may be normal and customary for
comparable buildings in the northern Chicago suburban market, heating and air
conditioning costs, common area utility costs such as electricity, sewer and
water charges, the cost of cleaning and removing snow from exterior areas, the
cost of routine repairs, maintenance and decorating of exterior areas and the
Building's or Property's share of costs of the Development). To the extent
personnel do work for other buildings in addition to the Building, the costs
associated with such personnel shall be allocated among the buildings based upon
the time devoted to each. Notwithstanding anything contained herein to the
contrary, depreciation of any capital improvements made after the date of this
Lease which are intended to reduce Operating Costs or which are required under
any governmental laws, regulations, or ordinances which were not applicable to
the Building at the time it was constructed, shall be included in Operating
Costs (but in no event shall any costs of construction set forth in Exhibit B be
included in Operating Costs). The useful life of any such improvement shall be
the maximum period permitted by generally accepted accounting principles. In
addition, interest on the undepreciated cost of any such improvement (at the
prevailing construction loan rate available to Landlord on the date the cost of
such improvement was incurred) shall also be included in Operating Costs. In the
event Landlord elects to self insure, insure with a deductible in excess of
$1,000 or obtain insurance coverage in which the premium fluctuates in
proportion to losses incurred, then Landlord shall obtain three estimates from
insurance agents of the amount of premium that Landlord would have been required
to pay to obtain insurance coverage (or insurance coverage without such
provision) with a recognized carrier and the lowest such estimated amount shall
be deemed to be an Operating Cost. Landlord may, in a reasonable manner,
allocate insurance premiums for so-called "blanket" insurance policies which
insure other properties as well as the Building and said allocated amount shall
be deemed to be an Operating Cost. If Landlord selects the accrual accounting
method rather than the cash accounting method for Operating Costs purposes,
Operating Costs shall be deemed to have been paid when such expenses have
accrued.
C. Notwithstanding the foregoing, Operating Costs shall in no event include the
following: (1) costs of capital improvements; (2) depreciation; (3) interest and
principal payments on mortgages, and other debt costs or any rent under a ground
lease; (4) real estate brokers' leasing commissions or compensation, advertising
or marketing expenses; (5) any cost or expenditure (or portion thereof) for
which Landlord is reimbursed, whether by insurance proceeds or otherwise; (6)
costs for sculptures, paintings or other objects of art (except that there shall
not be excluded the reasonable costs of maintaining, repairing or insuring such
objects); (7) wages, salaries or other compensation or benefits paid to any
persons above the grade of building manager (or property manager, or such other
title as may designate the key management person primarily and directly
responsible for the day-to-day management and operation of the Building); (8)
costs of any damage awards paid by Landlord pursuant to an order of a court of
competent jurisdiction and the costs of Landlord in defending itself in any
legal action filed against Landlord to the extent any such action seeks a damage
award and any settlement payments which Landlord may make in such action; (9)
Landlord's general overhead, except as it is related to the management of the
Building; and (10) any compensation paid to any person or entity controlled
directly or indirectly by Landlord or any principal of Landlord to the extent
such compensation exceeds the normal and competitive costs of such services.
D. Notwithstanding the foregoing, the amount charged to Tenant for any year with
respect to those Controllable Direct Expenses (defined below) in excess of the
Controllable Direct Expenses paid or incurred in the first full year of the Term
(the "Base Year Controllable Direct Expenses") is limited to the amount by which
the Base Year Controllable Direct Expenses is exceeded by the Base Year
Controllable Direct Expenses as increased at the cumulative annual rate of five
percent (5%). By way of illustration, if the Base Year Controllable Direct
Expenses are $1.00 per square foot, Controllable Direct Expenses chargeable to
Tenant for the second year cannot exceed $1.05 per square foot, $1.10 per square
foot for the third year, $1.15 per square foot for the fourth year, and so
forth. "Controllable Direct Expenses" means those Direct Expenses which are
within the reasonable control of Landlord, and shall not include insurance
costs, or costs or expenses (for example, without limitation) which are
established by public utilities, government regulation or multi-employer labor
agreements or which are subject to variation due to weather conditions, such as
snow removal or for which Landlord has solicited bids from at least three
sources and accepts the lowest bid.
E. Landlord and Tenant acknowledge that certain of the costs of management,
operation and maintenance of the Development are contractually allocated among
all of the buildings in the Development and Landlord shall use methods of
allocation that are considered reasonable and appropriate for the circumstances.
Tenant hereby consents to such contractual allocations and agrees that the
Building's portion shall be included in Operating Costs.
F. During December of each year or as soon thereafter as practicable (but no
later than January 31 of the next year). Landlord shall give Tenant written
notice of its estimate of the amount payable under Paragraph 5A for the ensuing
calendar year. On or before the first day of each month thereafter, Tenant shall
pay to Landlord as additional rent one-twelfth (1/12th) of such estimated
amount, provided that if such notice is not given in December, Tenant shall
continue to pay on the basis of the prior year's estimate until the first day of
the month after the month in which such notice is given.
G. Within ninety (90) days after the close of each calendar year or as soon
thereafter as practicable, Landlord shall deliver to Tenant a statement showing
the Operating Costs under Paragraph 5A and Tenant's share thereof. If such
statement shows an amount due from Tenant that is less than the estimated
payments previously paid by Tenant, it shall be accompanied by a refund of the
excess to Tenant. If such statement shows an amount due from Tenant that is more
than the estimated payments previously paid by Tenant, Tenant shall pay the
deficiency to Landlord, as additional rent, within thirty (30) days after
delivery of the statement.
H. Tenant or its representative shall have the right to examine Landlord's books
and records relative to Operating Costs and Taxes during normal business hours
within ninety (90) days following the furnishing of the annual statement to
Tenant. Unless Tenant takes written exception to any item within one hundred
twenty (120) days following the furnishing of the annual statement of Tenant,
such statement shall be considered as final and accepted by Tenant and Landlord.
The taking of exception to any item shall not excuse Tenant from the obligation
to make timely payment based upon the statement as delivered by Landlord. If
Tenant gives notice of such exception: (1) any charges disclosed by such
statement which Landlord agrees are irregular or improper shall be promptly
corrected by Landlord and Tenant shall receive a credit (subject, however, to
Landlord's right to offset such amount by any amounts owing from Tenant to
Landlord under this Lease) for any overpayments made by Tenant as a result of
such irregularities or improper charges; or (2) any charges disclosed by such
statement which Landlord and Tenant cannot agree upon shall be resolved by a
report as to the proper amount of Operating Costs to be given by an independent
certified public accountant mutually satisfactory to Landlord and Tenant, which
shall be final, binding and conclusive upon Landlord and Tenant (Tenant agrees
to pay the cost of such report unless it is determined that Landlord's original
determination of the actual (as distinguished from estimated) Operating Costs
was in error by more than 2% [in which case, Landlord shall pay the cost of the
report]).
VI. Electric Service
A. To the extent Tenant is not billed directly by a public utility, Tenant shall
pay, upon demand, as additional rent, for all electricity used by Tenant in the
Premises for lighting, convenience outlets, and other direct uses. The charge
shall be based upon metered use and shall be at the rates charged for such
services by the local public authority or utility. Tenant may contract with
alternative electricity providers so long as electricity costs and the
electricity distribution system in the Development are not negatively affected.
B. Interruptions of any service shall not be deemed an eviction or disturbance
of Tenant's use and possession of the Premises or any part thereof, or render
Landlord liable for damages by abatement of rent or otherwise or relieve Tenant
from performance of Tenant's obligations under this Lease, except as provided in
Paragraph 8C.
VII. Alterations and Repairs
A. Landlord agrees to install at Landlord's cost and expense the improvements
described in Exhibit B. All other improvements to the Premises ("Alterations")
shall be installed at the cost and expense of Tenant, but only in accordance
with plans and specifications which have been previously submitted to and
approved in writing by Landlord, and only by Landlord or by contractors and
subcontractors approved (or previously approved) by Landlord or on Landlord's
list of approved contractors; provided, however, that Landlord's consent will
not be required in the case of Alterations which meet all of the following
criteria: (i) they are not structural in nature, (ii) they are not visible from
the exterior of the Building, (iii) they do not affect or require material
modification of the Building's electrical, mechanical, plumbing, HVAC or other
systems, and (iv) they do not cost more than $50,000 in aggregate. Landlord
shall designate at the time of approval which Alterations must be removed by
Tenant at the end of the Term. Only in connection with any request for an
approval of Alterations which requires the issuance of a building permit,
Landlord may retain the services of an architect and/or engineer and, except as
set forth in the Work Letter, Tenant shall reimburse Landlord for the reasonable
fees of such architect and/or engineer, provided that, prior to Landlord's
engagement of such services Landlord notifies Tenant of the estimated cost of
such services. All Alterations shall be constructed in accordance with all
governmental laws, ordinances, rules and regulations ("Laws") and Tenant shall,
prior to construction, provide such assurances to Landlord, including but not
limited to, waivers of lien and surety company performance bonds, as Landlord
shall require to assure payment of the costs thereof and to protect Landlord
against any loss from any mechanics', laborers', materialmen's or other liens.
At the time of completion of each Alteration for which Tenant does the work,
Tenant shall deliver to Landlord a set of final "as-built" plans. All
Alterations shall be and remain the property of Tenant during the Term. Tenant
shall remove all Alterations which were not approved by Landlord and all
Alterations which Landlord designated to be removed when Landlord approved them
and restore the Premises to its original condition by the date of termination of
this Lease or upon earlier vacating of the Premises; provided, however, that, if
at such time Landlord so elects, such Alterations shall become the property of
Landlord as of the date of termination of this Lease or upon earlier vacating of
the Premises and title shall pass to Landlord under this Lease as by a xxxx of
sale. All such removals and restoration shall be accomplished in a good
workmanlike manner by contractors previously approved or approved in writing by
Landlord (which approval shall not be unreasonably withheld) so as not to damage
the Building.
B. Landlord shall maintain in good repair and condition the exterior and all
structural portions of the Building and all portions of the Premises outside the
Building, including, but not limited to maintaining, repairing, and replacing
the roof, foundation, air-conditioning, heating, plumbing, electrical and
sewerage systems and the exterior walls of the Building, maintaining and
repairing all parking lots and landscaping, keeping parking spaces, driveways
and sidewalks reasonably free from snow and ice and taking reasonable actions to
keep the Building free from infestation of insects, rodents, bugs or animals. To
the extent permitted under Article V, the costs incurred by Landlord hereunder
will be Operating Costs. Tenant shall promptly give Landlord written notice of
any defect or need for repairs, after which Landlord shall repair same or cure
such defect within thirty (30) days, or such additional time as may be
reasonably necessary, provided that Landlord is proceeding diligently to effect
such cure. If Landlord defaults in its obligation to repair hereunder, Tenant
may, after notice to Landlord, effect such repair or cure and Landlord shall,
upon receipt of Tenant's actual invoices, reimburse Tenant for the costs of any
such repair which would not have been Operating Costs. In no event shall Tenant
be entitled to offset any amount which may be due against the rent due
hereunder. Landlord's liability with respect to any defects, repairs or
maintenance for which Landlord is responsible shall be limited to the cost of
such repairs or maintenance or the curing of such defect.
C. Landlord shall be responsible for any costs incurred in delivering the
Premises to Tenant in full compliance with governmental requirements, including
the Americans With Disabilities Act ("ADA"). If Tenant makes any Alterations to
the Premises or change in the use which affect governmental compliance,
including ADA compliance, Tenant shall be responsible for any costs of
compliance with such governmental requirements resulting from such Alterations.
D. Except for ordinary wear and tear, loss by fire, or other casualty,
Landlord's repair and maintenance obligations and as otherwise provided in this
Lease, Tenant shall at its expense keep in good order, condition and repair the
interior of the Building (including all fixtures installed by Tenant, water
heaters within the Premises and plate glass) and shall promptly and adequately
repair all glass, doors, fixtures, equipment and appurtenances therein damaged
or broken. To the extent that Landlord is the beneficiary of warranties which
cover Tenant's repair obligations, Landlord shall either assign such warranties
to Tenant or, if they are not assignable, Landlord shall use reasonable efforts
to enforce such warranties for Tenant's benefit. Tenant shall deliver up the
Premises at the termination of the Lease in the same condition as when received
by Tenant, broom clean and free of all debris, reasonable wear and tear, loss by
fire or other casualty and the repair and maintenance obligations of Landlord
under this excepted. Any repairs or replacements shall be with materials and
workmanship of the same character, kind and quality as the original. Tenant will
not, without the prior written consent of Landlord, install any signs or
advertising media of any type on or about the Premises which is visible from the
exterior of the Premises (other than the signage permitted under Article XXIII),
but Tenant may install such materials without Landlord's consent if they are not
visible from the exterior.
VIII. Services
A. Landlord agrees to furnish Tenant, while occupying the Premises: water;
heated and refrigerated air conditioning in season at such times as Tenant
requests, and at such temperatures as are in accordance with any applicable
statutes, rules or regulations and are considered by Landlord to be standard;
janitor service to the Premises on weekdays other than holidays and window
washing at least twice a year; operatorless passenger elevators; but, except as
provided in Xxxxxxxxx 0X, any stoppage or interruption of these defined
services, resulting from any cause, shall not render Landlord liable in any
respect for damages to any person, property, or business, nor be construed as an
eviction of Tenant or work an abatement of rent, nor relieve Tenant from
fulfillment of any covenant or agreement hereof. Should any equipment or
machinery furnished by Landlord cease to function properly, Landlord shall use
reasonable diligence to repair the same promptly, but Tenant shall have no claim
for rebate of rent or damages on account of any interruptions in service
occasioned thereby or resulting therefrom. Landlord hereby reserves the right to
charge Tenant for any additional services requested by Tenant on such basis as
Landlord, in its sole, but reasonable, discretion, determines.
B. Upon at least thirty (30) days prior notice, Tenant may elect to provide all
(but not some) janitorial service to the interior of the Building, at Tenant's
sole cost and expense, in which case any janitorial services provided by Tenant
shall be Tenant's sole risk and responsibility and Operating Costs will not
include any interior janitorial costs; provided, however, Tenant may
subsequently request Landlord, on at least thirty (30) days prior notice, to
resume janitorial service, whereupon Landlord shall again be responsible for
such service and include the cost thereof in Operating Costs.
C. If there is an interruption of services which renders the Premises unusable
for its intended purpose for more than three (3) consecutive business days and
such interruption is a result of factors within the reasonable control of
Landlord, then rent shall xxxxx from the fourth day until such services are
restored.
IX. Use of Premises
A. The Premises shall be used for the Permitted Uses and no others. Tenant will
not occupy or use, nor permit any portion of Premises to be occupied or used,
for any use or purpose which is unlawful in part or in whole or deemed to be
disreputable in any manner, or extra hazardous on account of fire, nor permit
anything to be done which will render void or in any way increase the rate of
fire insurance on the Building or its contents, and Tenant, shall immediately
cease and desist from such use, paying all costs and expenses resulting
therefrom.
B. Tenant shall at its own cost and expense promptly obtain any and all licenses
and permits necessary for any Permitted Use. Tenant shall comply with all Laws
applicable to the use and its occupancy of the Premises, and shall promptly
comply with all governmental orders and directives for the correction,
prevention and abatement of any violations or nuisances in or upon, or connected
with, the Premises, all at Tenant's sole expense. If, as a result of any change
in Laws the Premises must be altered to lawfully accommodate Tenant's use and
occupancy, such alterations shall be made only with the consent of Landlord, but
the entire cost shall be borne by Tenant; provided, that, the necessity of
Landlord's consent shall in no way create any liability against Landlord for
failure of Tenant to comply with such Laws.
C. All trade fixtures of Tenant (as set forth on the attached Exhibit D) and
movable personal property of Tenant shall remain the property of Tenant and
shall be removed by Tenant upon the termination of this Lease. Landlord agrees
to execute and deliver a consent and a waiver in substantially the form attached
hereto as Exhibit E to any third party providing financing secured by the
personal property of Tenant. Landlord waives each and every right which Landlord
now has or may hereafter have to levy or distraint for rent, in arrears, in
advance or both, or to claim or assert title to the personal property lease,
sold or held as security by such financing party.
D. Tenant shall pay upon demand as additional rent the full cost of repairing
any damage to the Premises, Building or related facilities resulting from and/or
caused in whole or in part by the negligence or misconduct of Tenant, its
agents, servants, employees, patrons, customers, or any other person entering
upon the Development as a result of Tenant's business activities or resulting
from Tenant's default hereunder. Landlord shall, at its own cost and expense,
repair any damage to the Premises resulting from and/or caused in whole or in
part by the negligence or misconduct of Landlord, its agents, servants or
employees or caused by Landlord's breach of this Lease.
E. The current rules and regulations are described in Exhibit C. Landlord shall
at all times have the right to change such rules and regulations or to
promulgate other rules and regulations in such reasonable manner as may be
deemed advisable for the safety, care, and cleanliness of the Building or the
Development and copies thereof will be forwarded to Tenant. Tenant will comply
fully with such rules and regulations. Tenant shall further be responsible for
the compliance with such rules and regulations by Tenant's employees, servants,
agents and visitors. Tenant's violation of such rules and regulations shall not
be grounds for default hereunder, but shall solely give Landlord the right to
receive and be awarded actual damages and/or injunctive relief as a result
thereof.
F. Tenant agrees that Tenant, its agents and contractors, licensees, or invitees
shall not handle, use, manufacture, store or dispose of any flammables,
explosives, radioactive materials, hazardous wastes or materials, toxic wastes
or materials, asbestos, PCB's, petroleum products or derivatives or other
similar substances (collectively "Hazardous Materials") on, under, or about the
Premises; provided that Tenant may handle, store, use or dispose of fuel for the
electrical generator installed pursuant to Exhibit B and other products
containing small quantities of Hazardous Materials, which products are of a type
customarily found in offices and households (such as toner for copies, and the
like); provided further that Tenant shall handle, store, use and dispose of any
such Hazardous Materials in a safe and lawful manner and shall not allow such
Hazardous Materials to contaminate the Premises, the Building or the
environment. Tenant further agrees that Tenant will not permit any substance to
come into contact with groundwater under the Premises. Any such substance coming
into contact with groundwater shall, regardless of its inherent hazardous
characteristics, be considered a Hazardous Material for purposes of this Lease.
Landlord represents that, to the best of its knowledge, no Hazardous Materials
exist on the Premises as of the date hereof, and such representation shall be
deemed remade as of the Delivery Date.
G. Without limiting the above, Tenant shall reimburse, defend, indemnify and
hold Landlord harmless from and against any and all claims, losses, liabilities,
damages, costs and expenses, including without limitation, loss of rental
income, loss due to business interruption, and attorneys fees and costs, arising
out of or in any way connected with the use, manufacture, storage, or disposal
of Hazardous Materials by Tenant, its agents or contractors on, under or about
the Premises including, without limitation, the costs of any required or
necessary investigation, repair, cleanup or detoxification and the preparation
of any closure or other required plans in connection therewith, whether
voluntary or compelled by governmental authority. The indemnity obligations of
Tenant under this clause shall survive any termination of the Lease. Any of
Tenant's insurance insuring against claims of the type dealt with in this
Paragraph shall be considered primary coverage for claims against the Premises
arising out of or under this Paragraph.
X. Inspections
Landlord shall have the right to enter the Premises at any reasonable
time during business hours following reasonable notice (except in the case of
emergencies or to provide routine cleaning or maintenance), for the following
purposes: (a) to ascertain the condition of the Premises; (b) to determine
whether Tenant is diligently fulfilling Tenant's responsibilities under this
Lease; (c) to clean and to make such repairs as may be required or permitted to
be made by Landlord under the terms of this Lease; or (d) to do any other act or
thing which Landlord deems reasonable to preserve the Premises and the Building.
Landlord will use commercially reasonable efforts not to interfere with Tenant's
business. During the last six (6) months of the Term and at any time Tenant is
in default hereunder, Landlord shall have the right following reasonable notice
to enter the Premises at any reasonable time during business hours for the
purpose of showing the Premises. Tenant shall give written notice to Landlord at
least thirty (30) days prior to vacating and shall arrange to meet with Landlord
for a joint inspection of the Premises. In the event of Tenant's failure to give
such notice or arrange such joint inspection, Landlord's inspection at or after
Tenant vacates the Premises shall be conclusively deemed correct for purposes of
determining Tenant's responsibility for repairs and restoration. Other than
Landlord's rights hereunder, Landlord shall not grant any rights to others to
use any portion of the Premises, including the parking areas, which Landlord
agrees are for the exclusive use of Tenant.
XI. Assignment and Subletting
A. Tenant shall not have the right to assign or pledge this Lease or to sublet
the whole or any part of the Premises, whether voluntarily or by operation of
law, or permit the use or occupancy of the Premises by anyone other than Tenant,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, and such restrictions shall be binding upon any assignee
or subtenant to which Landlord has consented. In the event Tenant desires to
sublet the Premises, or any portion thereof, or assign this Lease, Tenant shall
give written notice thereof to Landlord at least thirty (30) days prior to the
proposed commencement date of such subletting or assignment, which notice shall
set forth the name of the proposed subtenant or assignee, the relevant terms of
any sublease and copies of financial reports and other relevant financial
information of the proposed subtenant or assignee. In no event may Tenant
sublet, nor will Landlord consent to any sublease of, all or any portion of the
Premises if the rent is determined in whole or in part based upon the income or
profits derived by the sublessee (other than a rent based on a fixed percentage
or percentages of receipts or sales). Notwithstanding any permitted assignment
or subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the terms, provisions and
covenants of this Lease. Upon the occurrence of an "event of default" (as
hereinafter defined), if the Premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein provided or provided
by law, may, at its option, collect directly from such assignee or subtenant all
rents due and becoming due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord from Tenant hereunder, and no such
collection shall be construed to constitute a novation or a release of Tenant
from the further performance of Tenant's obligations hereunder. Tenant shall pay
to Landlord, on demand, a reasonable service charge for the processing of the
application for the consent and for the preparation of the consent. Such service
charge shall be collectible by Landlord only where consent is granted by
Landlord.
B. If Tenant is an entity other than a natural person, the ownership interests
of which at the time of execution of this Lease, are held by fewer than fifty
(50) persons, and if at any time during the Term persons or other entities who
own at least one-third (1/3) of its ownership interests at the time of the
execution of this Lease or following Landlord's consent to a transfer of such
ownership interests, cease to own such ownership interests (other than as a
result of transfer by bequest or inheritance), such transfer shall, at the
option of Landlord, be deemed a default by Tenant under this Lease.
C. In the event that Tenant sublets, assigns or otherwise transfers its interest
in this Lease and at any time receives Excess Rent, Tenant shall pay to Landlord
fifty percent (50%) of the Excess Rent as received by Tenant. Tenant shall
furnish Landlord with a sworn statement, certified by an officer of Tenant or an
independent certified public accountant, setting forth in detail the computation
of Excess Rent, and Landlord, or its representatives, shall have access to the
books, records and papers of Tenant in relation thereto, and the right to make
copies thereof. If a part of the consideration for such sublease or assignment
shall be payable other than in cash, the payment to Landlord shall be payable in
such form as is reasonably satisfactory to Landlord. For purposes of this
Paragraph, the term "Excess Rent" shall mean the excess, if any, of (i) all
amounts received or to be received in the form of cash, cash equivalents, and
non-cash consideration by Tenant from any assignee or sublessee over (ii) the
sum of the rent payable to Landlord hereunder (or, in the case of a sublease of
a portion of the Premises, the portion of the Rent which is allocable on a per
square foot basis to the space sublet), plus the amount of any marketing
expenses, reasonable brokers' commissions and costs of tenant improvements
incurred by Tenant in connection with such assignment or sublease, all of which
shall be, in the case of a sublease, amortized over the term of the sublease for
the purpose of calculating the amounts of the periodic payments due to Landlord
hereunder.
D. Other than an Immaterial Sublease, any assignment or subletting by Tenant
pursuant to Paragraph 11A of all or any portion of the Premises, or termination
of the Lease for a portion of the Premises pursuant to Paragraph 11B, shall
automatically operate to terminate each and every right, option, or election, if
any exist, belonging to Tenant, including by way of illustration, but not
limitation, any option to expand its premises or to extend or renew the term of
Tenant's lease for all or any portion of the Premises - i.e. such rights and
options shall cease as to both space sublet or assigned and as to any portion of
the original Premises retained by Tenant.
E. Notwithstanding the foregoing, Tenant may, without Landlord's consent (but
with notice to be given to Landlord within thirty (30) days after such event),
sublet all or a portion of the Premises or assign this Lease to any Affiliate,
or to any entity succeeding to substantially all the business and assets of
Tenant by merger, consolidation, purchase of assets or otherwise upon the
following conditions: (i) that the tangible net worth of such assignee shall be
equal to or greater than Tenant's tangible net worth as of the Commencement
Date; (ii) that Tenant is not at such time in default hereunder beyond any
applicable notice and cure periods; and (iii) that such successor shall execute
an instrument in writing in form and substance reasonably acceptable to Landlord
fully assuming all of the obligations and liabilities imposed upon Tenant
hereunder and shall deliver the same to Landlord. Any such sublease or
assignment shall not relieve Tenant from liability hereunder. As used herein,
"Affiliate" shall mean as to any party, a corporation, partnership or other
entity controlled by, controlling, or under common control with such party. As
used herein the term, "control" shall mean possession of the power, directly or
indirectly, to (a) vote more than fifty percent (50%) of the voting securities
having ordinary power for the election of directors, or (b) direct or cause the
direction of the management and policies of such entity, whether by contract or
otherwise.
XII. Fire and Casualty Damage
A. Landlord shall maintain in effect throughout the term of this Lease policies
of insurance covering the Building and other improvements on the Property, in an
amount equal to their full replacement value, providing protection against any
peril included under a standard form of insurance policy used in Illinois for
fire and all risks. Such policies shall be procured by Landlord from responsible
insurance companies authorized to do business in Illinois and rated by Best's
Insurance Guide at A-:VII or better. A copy of such policies shall be delivered
to Tenant prior to the Commencement Date. Not less than thirty (30) days prior
to the expiration date of such policies, a certified copy of a renewal thereof
shall be delivered to Tenant. Such policies shall further provide that not less
than thirty (30) days' written notice shall be given to Tenant before such
policies may be cancelled or changed to reduce the insurance coverage provided
thereby.
B. If the Building or Premises are rendered partially or wholly untenantable by
fire or other casualty, Landlord shall deliver to Tenant a notice within sixty
(60) days of such fire or other casualty setting forth the time, as reasonably
determined by Landlord, required to materially restore the Building or Premises.
If such damage cannot, in Landlord's reasonable estimation, be materially
restored within one hundred eighty (180) days of such damage, then either party
may terminate this Lease. A party shall exercise its option by written notice
within thirty (30) days of the date of Landlord's determination notice. For
purposes hereof, the Building or Premises shall be deemed "materially restored"
if they are in such condition as would not prevent or materially interfere with
Tenant's use of the Premises for the purpose for which it was then being used.
If this Lease shall be terminated pursuant to this Article XII, the Term shall
end on the date of the notice of termination as if that date had been originally
fixed in this Lease for the expiration of the Term and, if the Premises is
untenantable in whole or in part following the casualty, the rent payable during
the period in which the Premises is untenantable shall be reduced to such
extent, if any, as may be fair and reasonable under all of the circumstances.
C. If this Lease is not terminated pursuant to Paragraph 12A, then Landlord
shall proceed with all due diligence to repair and restore the Building or
Premises, as the case may be (except that Landlord may elect not to rebuild if
such damage occurs during the last year of the Term exclusive of any option
which is unexercised at the date of such damage). If this Lease shall not be
terminated pursuant to this Article XII and if the Premises is untenantable in
whole or in part following the casualty, the rent payable during the period in
which the Premises is untenantable shall be reduced to such extent, if any, as
may be fair and reasonable under all of the circumstances.
D. In the event that Landlord should fail to complete such repairs and material
restoration within one hundred eighty (180) days after the date of such damage,
Tenant may at its option and as its sole remedy terminate this Lease by
delivering written notice to Landlord, whereupon the Lease shall end on the date
of such notice as if the date of such notice were the date originally fixed in
this Lease for the expiration of the Term; provided however, that if
construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed. Notwithstanding the above, if Landlord delivers to Tenant a notice
setting forth a new projected date for completion of the material restoration of
the Premises (such notice shall be accompanied by an explanation for the revised
date), then Tenant shall have fifteen (15) days thereafter to exercise its right
to terminate; if Tenant does not exercise its right to terminate within such
fifteen (15) day period it shall be deemed to have agreed to allow Landlord
until the date set forth in Landlord's notice to materially restore the Premises
and may not thereafter exercise this right to terminate unless and until
Landlord has failed to materially restore by such later date.
E. In no event shall Landlord be required to rebuild, repair or replace any
Alterations which may have been placed in or about the Premises by Tenant. Any
insurance which may be carried by Landlord or Tenant against loss or damage to
the Building or Premises shall be for the sole benefit of the party carrying
such insurance and under its sole control.
F. Notwithstanding anything herein to the contrary, in the event the holder of
any indebtedness secured by a mortgage or deed of trust covering the Premises,
Building or Property requires that any insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice to Tenant within thirty (30) days after such
requirement is made by any such holder, whereupon the Lease shall end on the
date of such notice as if the date of such notice were the date originally fixed
in this Lease for the expiration of the Term.
G. Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire, extended coverage perils, vandalism or malicious mischief,
sprinkler leakage or any other perils insured in policies of insurance covering
such property (or which would have been insured if coverage required herein had
been carried), even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building; provided, however, that this release shall be applicable and in force
and effect only to the extent that such release shall be lawful at that time and
in any event only with respect to loss or damage occurring during such times as
the releasor's policies shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said policies or prejudice
the right of the releasor to recover thereunder and then only to the extent of
the insurance proceeds payable under such policies. Each of Landlord and Tenant
agrees that it will require its insurance carriers to include in its policies
such a clause or endorsement.
H. In the event of any damage or destruction to the Building or Premises, Tenant
shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the salvagable property belonging to Tenant from
such portion or all of the Building or Premises as Landlord shall request.
XIII. Liability
Landlord shall not be liable for and Tenant will indemnify and hold
Landlord harmless from any loss, liability, costs and expenses, including
reasonable attorney's fees, arising out of any claim of injury or damage on or
about the Premises caused by the negligence or misconduct or breach of this
Lease by Tenant, its employees, subtenants, invitees or by any other person
entering the Premises, Building or Development under express or implied
invitation of Tenant or arising out of Tenant's use of the Premises. Tenant
shall not be liable for and Landlord will indemnify and hold Tenant harmless
from any loss, liability, costs and expenses, including reasonable attorney's
fees, arising out of any claim of injury or damage on or about the Premises
caused by the negligence or misconduct or breach of this Lease by Landlord, its
agents, employees or contractors. Landlord shall not be liable to Tenant or
Tenant's agents, employees, invitees or any person entering upon the Development
in whole or in part because of Tenant's use of the Premises for any damage to
persons or property due to condition, design, or defect in the Building or its
mechanical systems which may exist or occur, other than by reason of Landlord's
negligence, and Tenant assumes all risks of damage to such persons or property.
Landlord shall not be liable or responsible for any loss or damage to any
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority, or other matter beyond control of Landlord,
or for any injury or damage or inconvenience, which may arise through repair or
alteration of any part of the Building, or failure to make repairs, or from any
cause whatever except Landlord's willful acts or negligence. Tenant shall
procure and maintain throughout the term of this Lease a policy of insurance, in
form and substance satisfactory to Landlord, at Tenant's sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions arising
out of or in connection with: (a) the Premises; (b) the condition of the
Premises; (c) Tenant's operations in and maintenance and use of the Premises;
and (d) Tenant's liability assumed under this Lease; the limits of such policy
to be in the amount of not less than $5,000,000 per occurrence in respect of
injury to persons (including death) and in the amount of not less than $500,000
per occurrence in respect of property damage or destruction, including loss of
use thereof. Such policy shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. A certified copy of such policy, together
with receipt evidencing payment of the premium, shall be delivered to Landlord
prior to the Commencement Date. Not less than thirty (30) days prior to the
expiration date of such policy, a certified copy of a renewal thereof (bearing
notations evidencing the payment of the renewal premium) shall be delivered to
Landlord. Such policy shall further provide that not less than thirty (30) days'
written notice shall be given to Landlord before such policy may be cancelled or
changed to reduce the insurance coverage provided thereby.
XIV. Condemnation
A. If any substantial part of the Building or Premises should be taken for any
public or quasi-public use under Laws or by private purchase in lieu thereof (a
"Taking") and the Taking would prevent or materially interfere with the use of
the Building or Premises for the purpose for which it is then being used, this
Lease shall terminate effective when the Taking shall occur in the same manner
as if the date of such Taking were the date originally fixed in this Lease for
the expiration of the Term.
B. If part of the Building or Premises shall be taken in a Taking, and this
Lease is not terminated as provided in Paragraph 14A, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent, if any, as may be fair and reasonable
under all of the circumstances and Landlord shall undertake to restore the
Building and Premises to a condition suitable for Tenant's use, as near to the
condition thereof immediately prior to such Taking as is reasonably feasible
under all the circumstances. Notwithstanding anything to the contrary herein,
if, as a result of a partial taking, Tenant's business is significantly effected
and Landlord can not mitigate the partial taking, the terms of Paragraph 14A
shall apply and this Lease shall terminate.
C. In the event of any such Taking, Landlord and Tenant shall each be entitled
to receive and retain such separate awards and/or portion of lump sum awards as
may be allocated to their respective interests in any condemnation proceedings;
provided that Tenant shall not be entitled to receive any award for Tenant's
loss of its leasehold interest, the right to such award being hereby assigned by
Tenant to Landlord.
XV. Holding Over
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession of the Premises to Landlord. If Tenant
retains possession of the Premises or any part thereof after such termination,
then Landlord may, at its option, serve written notice upon Tenant that such
holding over constitutes any one of (a) creation of a tenancy at sufferance, or
(b) creation of a month to month tenancy, in any case upon the terms and
conditions set forth in this Lease; provided, however, that the rental shall, in
addition to all other sums which are to be paid by Tenant hereunder, be equal to
150% of the rental being paid under this Lease immediately prior to such
termination. If no such notice is served, then a tenancy at sufferance shall be
deemed to be created at the rent in the preceding sentence. Tenant shall also
pay to Landlord all direct damages sustained by Landlord resulting from
retention of possession by Tenant, including the loss of any proposed subsequent
tenant for any portion of the Premises. The provisions of this Article shall not
constitute a waiver by Landlord of any right of re-entry as herein set forth;
nor shall receipt of any rent or any other act in apparent affirmance of the
tenancy operate as a waiver of the right to terminate this Lease for a breach of
any of the terms, covenants, or obligations herein on Tenant's part to be
performed.
XVI. Quiet Enjoyment
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant, while paying the rental and performing
its other covenants and agreements herein set forth, shall peaceably and quietly
have, hold and enjoy the Premises for the Term without hindrance or molestation
from Landlord subject to the terms and provisions of this Lease. Landlord shall
not be liable for any interference or disturbance by other tenants or third
persons, nor shall Tenant be released from any of the obligations of this Lease
because of such interference or disturbance.
XVII. Events of Default.
Each of the following events shall be deemed to be an "event of
default" by Tenant under this Lease:
A. Tenant shall fail to pay when or before due any sum of money becoming due to
be paid to Landlord hereunder, whether such sum be any installment of the rent
herein reserved, any other amount treated as additional rent hereunder, or any
other payment or reimbursement to Landlord required herein, whether or not
treated as additional rent hereunder, and such failure shall continue for a
period of five (5) days from the date such payment was due. Landlord shall give
Tenant written notice of such default once during a calendar year and Tenant
shall have five (5) days from the date of such notice to cure such default;
B. Tenant shall fail to comply with any term, provision or covenant of this
Lease other than by failing to pay when or before due any sum of money becoming
due to be paid to Landlord hereunder, and shall not cure such failure within
thirty (30) days (forthwith, if the default involves a hazardous condition)
after written notice thereof to Tenant; provided, however, that such failure
shall not be an event of default if such failure could not reasonably be cured
during such 30 day period, Tenant has commenced the cure within such 30 day
period and thereafter is diligently pursuing such cure to completion, but the
total aggregate cure period shall not exceed ninety (90) days;
C. Tenant shall fail to vacate the Premises immediately upon termination of this
Lease, by lapse of time or otherwise;
D. The leasehold interest of Tenant shall be levied upon under execution or be
attached by process of law or Tenant shall fail to contest diligently the
validity of any lien or claimed lien and give sufficient security to Landlord to
insure payment thereof or shall fail to satisfy any judgment rendered thereon
and have the same released, and such default shall continue for thirty (30) days
after written notice thereof to Tenant;
E. Tenant shall become insolvent, admit in writing its inability to pay its
debts generally as they become due, file a petition in bankruptcy or a petition
to take advantage of any insolvency statute, make an assignment for the benefit
of creditors, make a transfer in fraud of creditors, apply for or consent to the
appointment of a receiver of itself or of the whole or any substantial part of
its property, or file a petition or answer seeking reorganization or arrangement
under the federal bankruptcy laws, as now in effect or hereafter amended, or any
other applicable law or statute of the United States or any state thereof;
F. A court of competent jurisdiction shall enter an order, judgment or decree
adjudicating Tenant a bankrupt, or appointing a receiver of Tenant, or of the
whole or any substantial part of its property, without the consent of Tenant, or
approving a petition filed against Tenant seeking reorganization or arrangement
of Tenant under the bankruptcy laws of the United States, as now in effect or
hereafter amended, or any state thereof, and such order, judgment or decree
shall not be vacated or set aside or stayed within thirty (30) days from the
date of entry thereof.
XVIII. Remedies
Upon the occurrence of an event of default which is not timely cured,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
A. Landlord may, at its election, terminate this Lease or terminate Tenant's
right to possession only, without terminating the Lease;
B. Upon any termination of this Lease, whether by lapse of time or otherwise, or
upon any termination of Tenant's right to possession without termination of the
Lease, Tenant shall surrender possession and vacate the Premises immediately,
and deliver possession thereof to Landlord, and Tenant hereby grants to Landlord
full and free license to enter into and upon the Premises in such event with or
without process of law and to repossess Landlord of the Premises as of
Landlord's former estate and to expel or remove Tenant and any others who may be
occupying or within the Premises and to remove any and all property therefrom,
without being deemed in any manner guilty of trespass, eviction or forcible
entry or detainer, and without incurring any liability for any damage resulting
therefrom, Tenant hereby waiving any right to claim damage for such reentry and
expulsion, and without relinquishing Landlord's right to rent or any other right
given to Landlord hereunder or by operation of law;
C. Upon any termination of this Lease, whether by lapse of time or otherwise,
Landlord shall be entitled to recover as damages, all rent, including any
amounts treated as additional rent hereunder, and other sums due and payable by
Tenant on the date of termination, plus the sum of (1) an amount equal to the
then present value of the rent, including any amounts treated as additional rent
hereunder, and other sums provided herein to be paid by Tenant for the residue
of the Term, less the then present value of the fair rental value of the
Premises for such residue (taking into account the time and expense necessary to
obtain a replacement tenant or tenants, including expenses hereinafter described
relating to recovery of the Premises, preparation for reletting and for
reletting itself), and (2) the cost of performing any other covenants which
would have otherwise been performed by Tenant;
D. 1. Upon any termination of Tenant's right to possession only without
termination of the Lease, Landlord may, at Landlord's option, enter into the
Premises, remove Tenant's signs and other evidences of tenancy, and take and
hold possession thereof as provided in Paragraph 18B, without such entry and
possession terminating the Lease or releasing Tenant, in whole or in part, from
any obligation, including Tenant's obligation to pay the rent, including any
amounts treated as additional rent, hereunder for the full term. In any such
case Tenant shall pay forthwith to Landlord, if Landlord so elects, a sum equal
to the entire amount of the rent, including any amounts treated as additional
rent hereunder, for the residue of the Term plus any other sums provided herein
to be paid by Tenant for the remainder of the Term, to be used by Landlord as a
deposit against Tenant's obligations under Subparagraph 18D(2);
2. Landlord shall use reasonable efforts to relet the Premises or any part
thereof for such rent and upon such terms as Landlord, in its reasonable
discretion, shall determine. Landlord and Tenant agree that Landlord may relet
the Premises for a greater or lesser term than that remaining under this Lease,
relet the Premises as a part of a larger area, or change the character or use
made of the Premises. Landlord and Tenant further agree that Landlord shall only
be required to use the same efforts Landlord then uses to lease other properties
Landlord owns or manages (or if the Premises is then managed for Landlord, then
Landlord will instruct such manager to use the same efforts such manager then
uses to lease other space or properties which it owns or manages); provided,
however, that Landlord (or its manager) shall not be required to give any
preference or priority to the showing or leasing of the Premises over any other
space that Landlord (or its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space regardless of
when such alternative space becomes available; provided, further, that Landlord
shall not be required to observe any instruction given by Tenant about such
reletting or accept any tenant offered by Tenant. In any such case, Landlord
may, but shall not be required to, make repairs, alterations and additions in or
to the Premises and redecorate the same to the extent Landlord deems necessary
or desirable, and Tenant shall, upon demand, pay the cost thereof, together with
Landlord's expenses of reletting, including, without limitation, any broker's
commission incurred by Landlord. If the consideration collected by Landlord upon
any such reletting plus any sums previously collected from Tenant are not
sufficient to pay the full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this Lease for the
remaining Term, together with the costs of repairs, alterations, additions,
redecorating, and Landlord's expenses of reletting and the collection of the
rent accruing therefrom (including reasonable attorney's fees and broker's
commissions), Tenant shall pay to Landlord the amount of such deficiency upon
demand and Tenant agrees that Landlord may file suit to recover sums falling due
under this section from time to time;
E. Landlord may, at Landlord's option, enter into and upon the Premises, if
Landlord determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything for which
Tenant is responsible hereunder and correct the same, without being deemed in
any manner guilty of trespass, eviction or forcible entry and detainer and
without incurring any liability for any damage resulting therefrom and Tenant
agrees to reimburse Landlord, on demand, as additional rent, for any expenses
which Landlord may incur in thus effecting compliance with Tenant's obligations
under this Lease;
F. Any and all property which may be removed from the Premises by Landlord
pursuant to the authority of the Lease or of law, to which Tenant is or may be
entitled, may be handled, removed and stored, as the case may be, by or at the
direction of Landlord at the risk, cost and expense of Tenant, and Landlord
shall in no event be responsible for the value, preservation or safekeeping
thereof. Tenant shall pay to Landlord, upon demand, any and all expenses
incurred in such removal and all storage charges against such property so long
as the same shall be in Landlord's possession or under Landlord's control. Any
such property of Tenant not retaken by Tenant from storage within thirty (30)
days after removal from the Premises shall, at Landlord's option, be deemed
conveyed by Tenant to Landlord under this Lease as by a xxxx of sale without
further payment or credit by Landlord to Tenant.
G. In the event Tenant fails to pay any installment of rent, including any
amount treated as additional rent, or other sums hereunder as and when such
installment or other charge is due, Tenant shall pay to Landlord on demand a
late charge in an amount equal to five percent (5%) of such installment or other
charge overdue in any month and two percent (2%) each month thereafter until
paid in full to help defray the additional cost to Landlord for processing such
late payments, and such late charge shall be additional rent hereunder and the
failure to pay such late charge within ten (10) days after demand therefor shall
be an additional event of default. The provision for such late charge shall be
in addition to all of Landlord's other rights and remedies hereunder or at law
and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner. Notwithstanding the foregoing, Landlord agrees not to
assess a late charge unless Tenant fails to pay the amount in question within
ten (10) days of Landlord's notice that such payment has not been made;
provided, further, that no such notice will be required in order to assess the
late charge: (i) for the twelve (12) month period subsequent to Landlord having
given Tenant two (2) such notices in any twelve (12) month period; or (ii) if
Tenant is in default pursuant to Article 17.
H. Pursuit of any of the foregoing remedies shall not preclude pursuit of any of
the other remedies herein provided or any other remedies provided by law (all
such remedies being cumulative), nor shall pursuit of any remedy herein provided
constitute a forfeiture or waiver of any rent due to Landlord hereunder or of
any damages accruing to Landlord by reason of the violation of any of the terms,
provisions and covenants herein contained. No act or thing done by Landlord or
its agents during the term hereby granted shall be deemed a termination of this
Lease or an acceptance of the surrender of the Premises, and no agreement to
terminate this Lease or accept a surrender of said Premises shall be valid
unless in writing signed by Landlord. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or breach of
any of the terms, provisions and covenants herein contained. Landlord's
acceptance of the payment of rental or other payments hereunder after the
occurrence of an event of default shall not be construed as a waiver of such
default, unless Landlord so notifies Tenant in writing. Forbearance by Landlord
in enforcing one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such default
or of Landlord's right to enforce any such remedies with respect to such default
or any subsequent default. Without limiting the foregoing, Tenant hereby
expressly waives any right to trial by jury in any summary proceeding for
possession of the Premises.
I. If, on account of any breach or default by either party in its obligations
under the terms and conditions of this Lease, it shall become necessary or
appropriate for the non-defaulting party to employ or consult with an attorney
concerning or to enforce or defend any of its rights or remedies hereunder, the
defaulting party agrees to pay any attorney's fees so incurred.
XIX. Tenant's Bankruptcy Or Insolvency.
If at any time and for so long as Tenant shall be subjected to the
provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"), Tenant, Tenant as debtor-in-possession, and any
trustee or receiver of Tenant's assets (each a "Tenant's Representative") shall
have no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any of the Premises then accorded to Tenant in Article XI,
except to the extent Landlord shall be required to permit such assumption,
assignment or sublease by the provisions of such Debtor's Law. Without
limitation of the generality of the foregoing, any right of any Tenant's
Representative to assume or assign this Lease or to sublease any of the Premises
shall be subject to the conditions that:
A. Such Debtor's Law shall provide to Tenant's Representative a right of
assumption of this Lease which Tenant's Representative shall have timely
exercised and Tenant's Representative shall have fully cured any default of
Tenant under this Lease.
B. Tenant's Representative or the proposed assignee, as the case shall be, shall
have deposited with Landlord as security for the timely payment of rent an
amount equal to the larger of: (a) three months' rent and other monetary charges
accruing under this Lease; and (b) any sum specified in Article III; and shall
have provided Landlord with adequate other assurance of the future performance
of the obligations of the Tenant under this Lease. Without limitation, such
assurances shall include, at least, in the case of assumption of this Lease,
demonstration to the satisfaction of the Landlord that Tenant's Representative
has and will continue to have sufficient unencumbered assets after the payment
of all secured obligations and administrative expenses to assure Landlord that
Tenant's Representative will have sufficient funds to fulfill the obligations of
Tenant under this Lease; and, in the case of assignment, submission of current
financial statements of the proposed assignee, audited by an independent
certified public accountant reasonably acceptable to Landlord and showing a net
worth and working capital in amounts determined by Landlord to be sufficient to
assure the future performance by such assignee of all of the Tenant's
obligations under this Lease.
C. Landlord shall have, or would have had absent the Debtor's Law, no right
under Article XI to refuse consent to the proposed assignment or sublease by
reason of the identity or nature of the proposed assignee or sublessee or the
proposed use of the Premises concerned.
XX. Mortgages
Tenant accepts this Lease subject and subordinate to any mortgages and
deed of trust now or at any time hereafter constituting a lien or charge upon
the Property, or the improvements situated thereon, provided, however, that if
the mortgagee, trustee, or holder of any such mortgage or deed of trust
("Mortgagee") elects to have Tenant's interest in this Lease superior to any
such instrument, then by notice to Tenant from such Mortgagee, this Lease shall
be deemed superior to such lien whether this Lease was executed before or after
said mortgage or deed of trust. Notwithstanding any subordination specified or
required by this Lease, so long as Tenant is not in default under any of the
terms, covenants and conditions of this Lease, neither the Lease, nor any of
Tenant's rights will be terminated or disturbed or subject to termination by any
action to enforce the security of any mortgage, trustee or by any proceeding or
action in foreclosure. Tenant shall at any time hereafter on demand execute any
instruments, releases or other documents which may be required by any such
Mortgagee for the purpose of subjecting and subordinating this Lease to the lien
of any such mortgage or for the purpose of evidencing the superiority of this
Lease to the lien of any such mortgage, as may be the case. Notwithstanding the
foregoing, the subordination of this Lease shall not be effective until Tenant
receives a commercially reasonable non-disturbance agreement from the Mortgagee.
XXI. Mechanic's and Other Liens
Tenant shall have no authority, express or implied, to create or place
any lien or encumbrance of any kind or nature whatsoever upon, or in any manner
to bind, the interest of Landlord in the Premises or to charge the rentals
payable hereunder for any claim in favor of any person dealing with Tenant,
including those who may furnish materials or perform labor for any construction
or repairs, and each such claim shall affect and each such lien shall attach to,
if at all, only the leasehold interest granted to Tenant by this Lease. Tenant
covenants and agrees that it will pay or cause to be paid all sums legally due
and payable by it on account of any labor performed or materials furnished in
connection with any work performed on the Premises on which any lien is or can
be validly and legally asserted against its leasehold interest in the Premises
or the improvements thereon and that it will save and hold Landlord harmless
from any and all loss, liability, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease. Tenant will not permit any mechanic's lien or liens or any other liens
which may be imposed by law affecting Landlord's or its Mortgagees' interest in
the Premises or the Building to be placed upon the Premises or the Building
arising out of any action or claimed action by Tenant, and in case of the filing
of any such lien Tenant will promptly pay same. If any such lien shall remain in
force and effect for twenty (20) days after written notice thereof from Landlord
to Tenant, Landlord shall have the right and privilege of paying and discharging
the same or any portion thereof without inquiry as to the validity thereof, and
any amounts so paid, including expenses and interest, shall be so much
additional rent hereunder due from Tenant to Landlord and shall be paid to
Landlord immediately on rendition of xxxx therefor. Notwithstanding the
foregoing, Tenant shall have the right to contest any such lien in good faith
and with all due diligence so long as any such contest, or action taken in
connection therewith, protects the interest of Landlord and Landlord's Mortgagee
in the Premises, and Landlord and any such Mortgagee are, by the expiration of
said twenty (20) day period, furnished such protection, and indemnification
against any loss, liability, cost or expense related to any such lien and the
contest thereof as are satisfactory to Landlord and any such Mortgagee.
XXII. Notices
Any notice or document required or permitted to be delivered under this
Lease shall be addressed to the intended recipient, shall be transmitted
personally, by fully prepaid registered or certified United States Mail return
receipt requested, or by reputable independent contract delivery service
furnishing a written record of attempted or actual delivery, and shall be deemed
to be delivered when tendered for delivery to the addressee at its address set
forth in Article I, or at such other address as it has then last specified by
written notice delivered in accordance with this Article XXII, or if to Tenant
at either its aforesaid address or its last known registered office or home of a
general partner or individual owner, whether or not actually accepted or
received by the addressee. All parties included within the terms "Landlord" and
"Tenant," respectively, shall be bound by notices given in accordance with the
provisions of this Article to the same effect as if each had received such
notice.
XXIII. Tenant's Signage Rights
Tenant shall be entitled to construct, maintain, repair and replace (at
its sole cost and expense) the following signage at the Premises: (i) two
illuminated signs on the Building facade facing the Tri-State Tollway and Route
60; and (ii) an illuminated monument sign at the entrance to the Building from
Riverwoods Boulevard. All signage must be in conformance with all applicable
governmental requirements or any variance granted in connection therewith,
including the annexation agreement with the Village of Mettawa. Unless Landlord
requests otherwise, Tenant must remove all such signs at the end of the Term and
repair any damage caused to the Premises by such removal.
XXIV. Certain Rights Reserved To The Landlord
The Landlord reserves and may exercise the following rights without
affecting Tenant's obligations hereunder:
A. to take any and all measures, upon reasonable notice to Tenant, including
inspections, repairs, alterations, decorations, additions and improvements to
the Premises or Building, as may be necessary or desirable for the safety,
protection or preservation of the Premises or Building or the Landlord's
interests, or as may be necessary or desirable in the operation of the Building;
and
B. to add, remove or modify buildings, roadways, walkways, landscaping, lakes,
grading and other improvements in or to the Development, so long as such actions
do not materially and adversely affect Tenant's use of the Premises.
XXV. Miscellaneous
A. Words of any gender used in this Lease shall be held and construed to include
any other gender, and words in the singular number shall be held to include the
plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon, the parties hereto
and upon their respective heirs, legal representatives, successors and permitted
assigns, except as otherwise expressly provided herein. Landlord shall have the
right to assign any of its rights and obligations under this Lease and
Landlord's grantee or Landlord's successor shall upon such assignment, become
"Landlord" hereunder, thereby freeing and relieving the grantor or assignor of
all covenants and obligations of "Landlord" hereunder. Tenant agrees to furnish
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization of
Tenant to enter into this Lease. Nothing herein contained shall give any other
tenant in the Building of which the Premises is a part any enforceable rights
either against Landlord or Tenant as a result of the covenants and obligations
of either party set forth herein.
C. The captions inserted in this Lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this Lease, or any
provision hereof.
D. Tenant shall at any time and from time to time within twenty (20) days after
written request from Landlord execute and deliver to Landlord or any prospective
Landlord or Mortgagee or prospective Mortgagee a sworn and acknowledged estoppel
certificate, in form reasonably satisfactory to Landlord and/or Landlord's
Mortgagee or prospective Mortgagee certifying and stating as follows: (1) this
Lease has not been modified or amended (or if modified or amended, setting forth
such modifications or amendments); (2) this Lease (as so modified or amended) is
in full force and effect (or if not in full force and effect, the reasons
therefor); (3) the Tenant has no offsets or defenses to its performance of the
terms and provisions of this Lease, including the payment of rent (or if there
are any such defenses or offsets, specifying the same); (4) Tenant is in
possession of the Premises if such be the case; (5) if an assignment of rents or
leases has been served upon Tenant by a Mortgagee or prospective Mortgagee,
Tenant has received such assignment and agrees to be bound by the provisions
thereof; and (6) any other accurate statements reasonably required by Landlord
or its Mortgagee or prospective Mortgagee. It is intended that any such
statement delivered pursuant to this subsection may be relied upon by any
prospective purchaser or Mortgagee and their respective successors and assigns
and Tenant shall be liable for all loss, cost or expense resulting from the
failure of any sale or funding of any loan caused by any material misstatement
contained in such estoppel certificate.
E. This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the expiration
of earlier termination of the Term shall survive the expiration or earlier
termination of the Term, including without limitation, all payment obligations
with respect to Taxes and Operating Costs and all obligations concerning the
condition of the Premises. Upon the expiration or earlier termination of the
Term, Tenant shall pay to Landlord the amount, as estimated by Landlord,
necessary: (1) to repair and restore the Premises as provided herein; and (2) to
discharge Tenant's obligation for unpaid Taxes, Operating Costs or other amounts
due Landlord. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant, with Tenant being liable for any additional costs
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied.
G. If any clause, phrase, provision or portion of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable under
applicable Laws, such event shall not affect, impair or render invalid or
unenforceable the remainder of this Lease nor any other clause, phrase,
provision or portion hereof, nor shall it affect the application of any clause,
phrase, provision or portion hereof to other persons or circumstances, and it is
also the intention of the parties to this Lease that in lieu of each such
clause, phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease a clause, phrase,
provision or portion as similar in terms to such invalid or unenforceable
clause, phrase, provision or portion as may be possible and be valid and
enforceable.
H. Submission of this Lease shall not be deemed to be a reservation of the
Premises. Landlord shall not be bound hereby until its delivery to Tenant of an
executed copy hereof signed by Landlord, already having been signed by Tenant,
and until such delivery Landlord reserves the right to exhibit and lease the
Premises to other prospective tenants. Notwithstanding anything contained herein
to the contrary, Landlord may withhold delivery of possession of the Premises
from Tenant until such time as Tenant has paid to Landlord any sum then owed
pursuant to this Lease.
I. If either party hereto shall be delayed or hindered in or prevented from the
performance of any act required hereunder by reason of strikes, material
shortages, lockouts, riots, insurrection or acts of war, the period for the
performance of any such acts shall be extended for a period equivalent to the
period of such delay. Notwithstanding the foregoing, the provisions of this
section shall, at no time, operate to excuse Landlord or Tenant from any
obligations for payment of rent or any other payments required by the terms of
this Lease when the same are due, and all such amounts shall be paid when due.
J. If there be more than one Tenant, the obligations hereunder imposed upon
Tenant shall be joint and several. Any indemnification of, insurance of, or
option granted to Landlord shall also include or be exercisable by Landlord's
trustee, beneficiary, agents and employees, as the case may be.
K. Each of the parties (1) represents and warrants to the other that it has not
dealt with any broker or finder in connection with this Lease, except as
described in Article I; and (2) indemnifies and holds the other harmless from
any and all losses, liability, costs or expenses (including attorneys' fees)
incurred as a result of an alleged breach of the foregoing warranty. Landlord
agrees to promptly pay the broker, if any, listed in Article I.
L. Except as specifically provided in the Lease: (1) whenever a party's
permission, consent or approval is required pursuant to the terms of this Lease,
the same shall not be unreasonably withheld, refused or delayed; (2) whenever
any opinion or election by a party is required, the same shall be exercised
reasonably and will not be unreasonably delayed; (3) whenever a party's judgment
or satisfaction is required, shall be deemed to mean the reasonable judgment or
satisfaction of the party; (4) whenever an indemnification or reimbursement is
required to be made by a party under this Lease, amounts owed shall only be
those reasonable costs incurred by the indemnified party; and (5) whenever a
party's permission, consent or approval is required to be reasonable, it shall
also be required not to be unreasonably withheld or delayed. Except for fees of
real estate tax attorneys resulting from the contesting of Taxes, whenever
attorneys' fees are referred to in this Lease, in all cases it shall be deemed
to mean reasonable attorneys' fees and not necessarily actual attorneys' fees.
M. If, at any time during the term of this Lease, Landlord shall determine to
sell and convey the Premises or the beneficial interest of Landlord therein, as
the case may be, then Landlord shall notify Tenant in writing of Landlord's
contemplated sales price therefor. Tenant shall then have a period of thirty
(30) days from and after the date of such written notice to negotiate, execute
and deliver to Landlord a written offer to purchase such interest on a purchase
agreement reasonably acceptable to both parties in an amount equal to Landlord's
contemplated sales price without regard to a sales commission, whereupon
Landlord shall be obligated to accept such written offer to purchase. If Tenant
fails, refuses or is otherwise unable to deliver to Landlord such written offer
to purchase within said thirty (30) day period, Landlord shall thereafter have
the right to sell such interest to any third party on whatever terms and
conditions Landlord is willing to accept. The provisions of this Paragraph shall
not apply to any Tenant shall have no right to purchase the Premises with
respect to: (1) the sale of the Premises if packaged together with other
building(s) of Landlord; (2) a foreclosure sale or deed in lieu of foreclosure
given to Landlord's mortgagee or the conveyance by said fee mortgagee to a bona
fide purchaser following a foreclosure or deed in lieu thereof; or (3) any sale
leaseback transaction entered into for financing purposes; provided, however,
that Tenant's right pursuant to this Paragraph shall not be extinguished by the
transactions described in the foregoing clauses (2) or (3). The provisions of
this Paragraph shall apply only to Tenant, or any affiliate of Tenant and shall
not inure to the benefit of any assignee or subtenant of Tenant, except for
assignees or subtenants which do not require Landlord's approval.
N. Landlord, at its sole cost and expense, shall deliver to Tenant, prior to
commencement of Tenant's work in the Premises, a leasehold title policy in the
amount of $1,000,000 insuring Tenant's interest in this Lease and subject only
to such exceptions as Tenant may reasonably accept and including an ALTA 3.1
zoning endorsement indicating Tenant's permitted uses are permitted under the
existing zoning. Such policy is a condition of Tenant's performance hereunder
and, if Landlord fails to deliver such policy, Tenant may, by ten (10) days
prior written notice, terminate this Lease; provided, however, that if Landlord
delivers such policy within such ten days, Tenant's termination notice shall be
null and void.
XXVI. Landlord's Exculpation
It is expressly understood and agreed that nothing in this Lease shall
be construed as creating any liability whatsoever against the Landlord, or its
successors and assigns, personally, and in particular without limiting the
generality of the foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenant, either express or
implied, herein contained, and that all personal liability of Landlord, or its
successors and assigns, of every sort, if any, is hereby expressly waived by
Tenant, and every person now or hereafter claiming any right or security
hereunder, and that so far as Landlord, or its successors and assigns, is
concerned the owner of any indebtedness or liability accruing hereunder shall
look solely to Landlord's interest in the Building for the payment thereof.
TENANT: LANDLORD:
CDW COMPUTER CENTERS, INC. HP WOODLAND FALLS I, LLC
By: By:
-------------------- --------------------------
Title: Title:
-------------------- --------------------------
Date: October , 2000 Date: October , 2000
------------- ------------
472284_8.DOC 2
472284_8.DOC 1
EXHIBIT A-1
LEGAL DESCRIPTION OF THE PROPERTY
LEGAL DESCRIPTION FOR PROPOSED XXX 0
XX XXXXXXXX XXXXXX 0xx XXXXXXXXXXXXX
XXXXXXX, XXXXXXXX
THAT PART OF LOT 1 IN XXXXXXXX OFFICE SUBDIVISION, BEING A SUBDIVISION OF PART
OF THE WEST HALF OF SECTION 36, TOWNSHIP 44 NORTH, RANGE 11 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED SEPTEMBER 8, 1999 AS
DOCUMENT XX. 0000000, XX XXXX XXXXXX, XXXXXXXX, DESCRIBED AS FOLLOWS:
COMMENCING AT THE XXXXXXXXX XXXXXX XX XXXX XXX 0, XXXX XXXXX BEING ON THE
EASTERLY LINE OF RIVERWOODS BOULEVARD PER DOCUMENT NO. 4416298; THENCE NORTHERLY
ALONG THE EASTERLY LINE OF RIVERWOODS BOULEVARD THE FOLLOWING SIX (6) COURSES:
THENCE NORTH 13 DEGREES 16 MINUTES 46 SECONDS WEST, 130.17 FEET; THENCE NORTH 00
DEGREES 03 MINUTES 07 SECONDS EAST, 197.54 FEET TO A POINT OF CURVATURE; THENCE
NORTHERLY 120.36 FEET ALONG THE ARC OF A CURVE, CONCAVE EASTERLY, HAVING A
RADIUS OF 691.00 FEET AND A CHORD BEARING NORTH 05 DEGREES 02 MINUTES 31 SECONDS
EAST, 120.20 FEET TO THE POINT OF BEGINNING; THENCE NORTHEASTERLY 381.86 FEET
CONTINUING ALONG THE LAST DESCRIBED COURSE, BEING A CURVE CONCAVE SOUTHEASTERLY,
HAVING A RADIUS OF 691.00 FEET AND A CHORD BEARING NORTH 25 DEGREES 51 MINUTES
48 SECONDS EAST, 337.03 FEET TO A POINT OF TANGENCY; THENCE NORTH 41 DEGREES 41
MINUTES 42 SECONDS EAST, 141.22 FEET TO A POINT OF CURVATURE; THENCE
NORTHEASTERLY 162.34 FEET ALONG THE ARC OF A CURVE, CONCAVE NORTHWESTERLY,
HAVING A RADIUS OF 780.00 FEET AND A CHORD BEARING NORTH 35 DEGREES 43 MINUTES
58 SECONDS EAST, 162.05 FEET; THENCE SOUTH 59 DEGREES 39 MINUTES 59 SECONDS
EAST, 233.69 FEET; THENCE SOUTH 30 DEGREES 10 MINUTES 00 SECONDS WEST, 45.53
FEET; THENCE SOUTH 59 DEGREES 50 MINUTES 00 SECONDS EAST, 104.78 FEET; THENCE
SOUTH 30 DEGREES 10 MINUTES 00 SECONDS WEST, 190.19 FEET; THENCE SOUTH 59
DEGREES 50 MINUTES 00 SECONDS EAST, 170.99 FEET; THENCE NORTH 30 DEGREES 10
MINUTES 00 SECONDS EAST, 71.19 FEET; THENCE SOUTH 59 DEGREES 50 MINUTES 00
SECONDS EAST, 80.35 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF SAID LOT 1,
SAID POINT ALSO BEING ON THE NORTHWESTERLY LINE OF THE NORTHERN ILLINOIS TOLL
HIGHWAY; THENCE SOUTHEASTERLY ALONG SAID LINE THE FOLLOWING FOUR (4) COURSES:
THENCE SOUTH 33 DEGREES 40 MINUTES 22 SECONDS WEST, 61.97 FEET; THENCE SOUTH 22
DEGREES 53 MINUTES 08 SECONDS WEST, 164.38 FEET; THENCE SOUTH 31 DEGREES 48
MINUTES 16 SECONDS WEST, 177.55 FEET; THENCE SOUTH 29 DEGREES 42 MINUTES 48
SECONDS WEST, 48.39 FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY LINE OF
AN EASEMENT RECORDED AS DOCUMENT NO. 4416298; THENCE NORTH 65 DEGREES 20 MINUTES
49 SECONDS WEST, 620.70 FEET ALONG SAID NORTHERLY LINE TO THE POINT OF
BEGINNING.
LEGAL DESCRIPTION UPON RECORDING OF XXXXXXXX OFFICE 1st RESUBDIVISION:
XXX 0 XX XXXXXXXX XXXXXX 0XX RESUBDIVISION, BEING A RESUBDIVISION OF LOT 1, IN
XXXXXXXX OFFICE SUBDIVISION, BEING A SUBDIVISION OF PART OF THE WEST HALF OF
SECTION 36, TOWNSHIP 44 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT OF RESUBDIVISION RECORDED ___________ ___, 2000 AS
DOCUMENT NO. _______________,
IN LAKE COUNTY, ILLINOIS
472284_8.DOC D-1
472284_8.DOC B-1
EXHIBIT A-2
SITE PLAN OF THE PROPERTY
472284_8.DOC C-4
EXHIBIT B
WORK LETTER
1. Landlord's Work.
1.1 Landlord agrees to furnish and install the Base Building Improvements set
forth in Attachment A at Landlord's sole cost and expense. Upon substantial
completion of the Base Building Improvements, Landlord shall tender the Premises
to Tenant and the later of such date or twenty (20) days after Landlord has
given Tenant written notice of the date for such tender shall be the "Delivery
Date". "Substantial completion" shall be defined as completion necessary for the
Village of Mettawa to issue its customary certificate of occupancy or similar
permit or authority for Tenant to use or occupy the Building (provided, that if
such certificate is a temporary or conditional one, its issuance shall still
constitute substantial completion provided that Landlord completes any
additional work necessary for the issuance of a permanent certificate within the
time frames required by the Village and the work does not affect Tenant's
ability to commence and timely complete its work at the Premises). By its
occupancy of the Premises, Tenant acknowledges that it has inspected the
Premises and agrees to accept the Premises in its then existing condition,
subject to latent defects, except that Tenant shall deliver a punch list of
items not completed within thirty (30) days after the Commencement Date and
Landlord agrees to proceed with due diligence to perform its obligations
regarding such items.
1.2 In addition, Landlord shall construct a structured parking deck on the south
parking area substantially as set forth in the Pepper Construction proposal
dated August 29, 2000, not including the underground connection to the Building
("Landlord's Work"). Landlord's Work shall be completed in a good and
workmanlike manner in accordance with applicable laws no later than April 1,
2001, subject to force majeure. Landlord shall pay the cost of Landlord's Work.
Such costs shall include all construction costs and all architect's fees, space
planner's fees, engineer's fees, fees for building permits and approvals. In the
event that the cost of Landlord's Work is less than $4,000,000 ("Deck
Allowance"), the Annual Rent shall be reduced by 10.5% of the amount of the
difference between the cost of Landlord's Work and the Deck Allowance. Prior to
the completion of Landlord's Work and subsequent to the Commencement Date,
Landlord will provide surface parking for at least 300 cars to serve the
Property.
2. Working Drawings.
2.1 No later than December 1, 2000, Tenant shall cause to be prepared and
delivered to Landlord Working Drawings for the Premises. Working Drawings shall
mean, collectively, the space plan prepared by Partners by Design (the "Space
Plan"), the final plans and specifications for the Premises (the "Construction
Drawings"), including all plans prepared by Partners by Design (the "Architect")
and TBD (the "Engineer"), including but not limited to details of partitions,
doors, electrical and telephone outlets, ceilings, finishes, sprinklers,
heating, ventilating, sound attenuation, air conditioning, plumbing, and
electrical systems, finishes, paint, millwork, cabinetry and floor and wall
coverings in the Premises. Landlord will review the Working Drawings and respond
as soon as reasonably possible but in no event later than eight (8) business
days after receipt. Further, within the following five (5) business days,
Landlord and Tenant and their respective consultants shall review and discuss
the Working Drawings, revise them as appropriate, and reach agreement on the
final Working Drawings. Landlord and Tenant, or their authorized
representatives, shall sign two sets of the Working Drawings and one signed set
shall be delivered to each party. Any material changes or additions to the
Working Drawings shall require written approval by Landlord, which approval
shall not constitute approval of any municipality or other authority having
jurisdiction and which shall not be unreasonably withheld or delayed.
2.2 Upon completion of the Working Drawings, Tenant shall immediately make
application to the appropriate regulatory authorities for the required permits
and approvals.
2.3 Upon receipt of a copy of the Working Drawings approved and signed by
Landlord, and receipt of necessary permits, Landlord will permit Tenant to
commence construction.
2.4 Neither review nor approval by Landlord of the Working Drawings shall
constitute a representation or warranty by Landlord that any of the Working
Drawings either (i) are complete or suitable for their intended purpose, or (ii)
comply with applicable laws, ordinances, codes and regulations, it being
expressly agreed by Tenant that Landlord assumes no responsibility or liability
whatsoever to Tenant or to any other person or entity for such completeness,
suitability, or compliance. Further, it is understood and agreed that any and
all inspections of the Work made by Landlord, its consultant or their respective
agents, employees and/or designees shall be solely for Landlord's own
information and shall not be deemed to have been made for or on account of
Tenant or any other party and Tenant hereby specifically relieves Landlord of
any and all liability or responsibility relating in any way whatsoever to the
construction of the Work, including but not limited to, the work thereon, the
materials or labor supplied in connection therewith, and any errors,
inconsistencies or other defects in the Working Drawings, except for portions
which are Landlord's Work.
3. Tenant's Work.
3.1 Tenant, at its sole cost and expense but subject to Landlord's obligation to
pay the Tenant Allowance, shall perform all work in accordance with the terms of
this Exhibit as required to put the Premises in a condition to permit the
conduct of Tenant's business therein and in accordance with the requirements of
the Lease (the "Work"). Unless otherwise provided herein or in the Lease, all
installations (except trade fixtures) made by Landlord or Tenant hereunder shall
remain the property of Landlord. Tenant shall hire its own contractor and
suppliers for completion of the Work, provided such contractors and suppliers
are reasonably acceptable to Landlord. Approval or disapproval of a contractor
or supplier will be given in writing (with explanation if disapproval) within
ten (10) days of submission. Failure of Landlord to notify Tenant within such
time period shall be deemed approval.
3.2 Landlord shall have no responsibility with respect to the completion of the
Work except that Landlord will cooperate with Tenant by complying with its
obligations under the Lease including this Exhibit promptly. Tenant shall be
responsible for insuring that all work performed by its contractors, workmen or
suppliers complies with the approved Working Drawings and all applicable
building codes and regulations of governmental authorities.
3.3 Tenant shall not permit Tenant's contractors or subcontractors to commence
any work until the following insurance has been obtained by Tenant's contractors
and subcontractors:
3.3.1 Workers' Compensation and Employers' Liability Insurance, with limits of
not less than $500,000.00 and as required by any applicable laws where the Work
is to be performed.
3.3.2 Commercial General Liability Insurance (including Owners' Protective
Liability) in an amount not less than $2,000,000 per occurrence, whether
involving bodily injury liability (or death resulting therefrom) or property
damage liability, or a combination thereof, with a minimum aggregate limit
$5,000,000, and with umbrella coverage with limits of not less than $5,000,000.
Such insurance shall provide for explosion and collapse, completed operations
coverage and broad form blanket contractual liability coverage and shall insure
Tenant's contractors against any and all claims for bodily injury, including
death resulting therefrom, and damage to the property of others arising from its
operation under the contracts, whether such operations are performed by Tenant's
contractors or by anyone directly or indirectly employed by any of them.
3.3.3 Comprehensive Automobile Liability Insurance including the ownership,
maintenance and operations of any automotive equipment owned, hired and
non-owned, including loading and unloading of any automobile, in an amount not
less than $1,000,000 per accident with umbrella coverage limits of not less than
$2,000,000; which insurance shall insure Tenant's contractors and subcontractors
against any and all claims for bodily injury, including death resulting
therefrom and damage to the property of others arising from its operations under
its contract with Tenant whether such operations are performed by Tenant's
contractors or subcontractors or by anyone directly or indirectly employed by
any of them.
All physical damage insurance shall be in amounts at least equal to the full
replacement cost of the covered items and shall not be subject to the
application of any coinsurance clauses or requirements. Tenant shall furnish
certificates of insurance evidencing the coverages to be provided by Tenant
under this Paragraph prior to the commencement of the Work, which certificates
shall state that such insurance coverage may not be changed or canceled without
at least 30 days' prior written notice to Landlord and shall name as additional
insureds Landlord and any other party reasonably requested by Landlord. All
insurance shall otherwise be in form and substance reasonably satisfactory to
Landlord.
3.4 Tenant's entry on the Premises to perform the Work shall be subject to, and
Tenant shall fully perform and comply with, each of the following covenants,
conditions and requirements:
3.4.1 Tenant and Tenant's agents, contractors, workmen, mechanics, suppliers and
invitees shall work in harmony and not unreasonably interfere with Landlord and
Landlord's agents, employees and contractors.
3.4.2 Tenant shall require all entities performing work on behalf of Tenant to
provide protection for existing improvements that is reasonably satisfactory to
Landlord, and shall allow Landlord access to the Premises, for inspection
purposes, at all times during the period when Tenant is undertaking construction
activities thereon. In the event any entity performing work on behalf of Tenant
causes any damage to the property of Landlord or others, Tenant shall cause such
damage to be repaired at Tenant's expense and if Tenant fails to cause such
damage to be repaired promptly upon Landlord's demand therefor, Landlord may, in
addition to any other rights or remedies available to Landlord under this Lease
or at law or equity, cause such damage to be repaired, in which event Tenant
shall promptly upon Landlord's demand pay to Landlord as additional rent the
cost of such repairs.
3.4.3 Construction equipment and materials are to be located in confined areas
approved by Landlord and truck traffic is to be routed to and from the building
as directed by Landlord so as not to burden the construction or operation of the
Building. Landlord shall have the right to order Tenant or any contractor or
subcontractor who violates the above requirements more than once to cease work
and to remove it, its equipment, and its employees from the Building.
3.4.4 During the performance of the Work and Tenant's fixturing, Tenant shall
accumulate its trash in containers supplied by Tenant and Tenant shall not
permit trash to accumulate within the Premises. Tenant shall cause each entity
employed by it to perform work on the Premises to abide by the provisions of
this Exhibit as to the storage of trash and shall require each such entity to
perform its work in a way that dust or dirt is contained entirely within the
Building. Should Landlord deem it necessary to remove Tenant's trash because of
accumulation, an additional charge to Tenant will be on a time and material
basis.
3.4.5 To the extent not expressly prohibited by law, Tenant agrees to indemnify
and defend Landlord, its partners, directors, officers, employees, legal
representatives, servants and agents and save them harmless from and against any
and all loss (including loss of rents payable by Tenant or other tenants and
damage to the Building) and against all claims, actions, damages, liability and
expense brought by any person(s), firm(s), or corporation(s) in connection with
loss of life, bodily and personal injury or property damage arising from any
occurrence in, upon or at the Premises or the Building occasioned wholly or in
part by any act or omission of the Tenant or its contractors or subcontractors
or otherwise in connection with the performance of the Work.
3.4.6 Tenant shall be responsible for all arrangements and costs related to
moving its office equipment, supplies, furnishings, and other apparatus into the
Premises. Tenant shall reimburse Landlord for the full cost of any repairs or
replacements to the Building which result from Tenant's moving work, including
any damage to the elevators which results from loads that exceed their rated
capacity. Prior to the start of any moving work, Tenant will lay down plywood
protection boards over floors, install pads in the freight elevator, pad
corridor corners and entrance doors and frames and perform such other protective
work as Landlord may reasonably require to minimize potential damage to the
Building. Landlord shall not charge for the use of the freight elevator.
4. Tenant Allowance.
4.1 Landlord shall reimburse Tenant for the cost of the tenant improvement work
specified herein up to but not in excess of $32.00 per square foot of rentable
area in the Premises ("Tenant's Allowance"). The Tenant's Allowance may be used
for hard and soft construction costs, architectural fees, moving expenses,
consulting fees, furniture, fixtures and equipment. Any portion of the Tenant's
Allowance not used for the preceding costs shall be credited against the first
payments of Annual Rent due under this Lease.
4.2 Landlord will make periodic payments (no more often than once a month)
towards the cost of the Work upon receipt of (i) a certificate of Tenant's
architect certifying as to the percentages of completion of the components of
the Work and setting forth the amount authorized for disbursement subject to
Landlord's 10% holdback hereinafter described and that the completed Work is
substantially in accordance with the Working Drawings and in full compliance
with all applicable laws; (ii) Tenant shall have delivered to Landlord copies of
all licenses and building permits necessary for construction and completion of
the Work for which such disbursement is being requested, all of which shall be
unconditional; (iii) partial waivers of mechanic's or materialmen's lien claims;
and (iv) Tenant's and its general contractor's sworn statement listing all
subcontractors, the amounts of their contracts and the percentage of completion.
The cost of the excess (the "Excess") of the actual cost of the Work over the
Tenant Allowance shall be paid by Tenant. Landlord will fund draws within 30
days after receipt of the items listed above (but not than once a month). The
balance of the Tenant Allowance (including the 10% holdback) shall be paid upon
substantial completion of the Work as well as fulfillment of the requirements
set forth in this section.
4.3 In addition to the Tenant Allowance, Landlord shall reimburse Tenant for the
cost of preparing the Working Drawings, up to a maximum amount of $0.07 per
square foot of rentable space in the Premises, and for the cost of one revision
to the Working Drawings, up to a maximum amount of $0.03 per square foot.
5. Side-by-Side Construction. As soon as reasonably feasible after Tenant
obtains a building permit for Tenant's work and prior to the Delivery Date,
Landlord shall give Tenant access to the Building for purposes of commencing
construction. Tenant's access shall not be deemed to be an acceptance of the
completion or adequacy of Landlord's work pursuant to Section 1.1. Each party
acknowledges that the intention is that Tenant and Landlord will be
simultaneously constructing their respective improvements and each party shall
cooperate with the other to facilitate such construction. However, Tenant and
its contractors shall abide by all reasonable instructions and requests of
Landlord and Landlord's contractor regarding construction matters where there is
a likelihood of conflict between the parties. Tenant's early access to the
Building shall be subject to all the terms and conditions of the Lease other
than the payment of rent, Taxes and Operating Costs.
6. Miscellaneous. This Exhibit is expressly made a part of the Lease and is
subject to each and every term and condition thereof, including, without
limitation, the limitations on liability set forth in the Lease.
472284_8.DOC C-7
472284_8.DOC C-5
Attachment A
Base Building Improvements
a. (i) Main HVAC loop; (ii) perimeter fan powered boxes
HVAC Operating Criteria / Minimum Standards:
Summer: Not more than 76 degrees Fahrenheit dry bulb / INSIDE when
OUTSIDE temperature reaches a high up to 95 degrees Fahrenheit dry
bulb, 74 degrees wet bulb.
Winter: Not less than 72 degrees Fahrenheit dry bulb / INSIDE when
OUTSIDE temperature reaches a low up to -10 degrees Fahrenheit dry
bulb.
b. Standard sprinkler distribution system with approximately one head
every 225 USF along with riser, mains and control.
c. (i) Riser, disconnect and service connection cabling and conduit for
Tenant distribution panels for six (6) xxxxx for Power and Lighting,
Demand Load per RSF and (ii) Telephone Riser with Net Pop on first
(1st) floor.
d. Building standard window coverings (horizontal mini blinds or other).
e. ADA approved Life Safety System riser and controls/panels to support
audio and visual codes along with installation of elements in common
areas. System shall meet the latest ADA and UL requirements.
f. All building interior columns and core walls insulated and drywalled;
all taped, sanded and ready to accept Tenant's finishes up to 9'3"
above finished floor at core and columns. Perimeter kneewall framed and
insulated.
g. Public corridor on first (1st) and second (2nd) floor complete with
finishes. Elevator cab finishes. Upper floor elevator lobbies
drywalled, taped, sanded and ready to accept finishes and ceilings.
h. Slab leveling: Guaranteed to1/2" in 10'0" laterally, non-accumulative.
i. Public area water coolers as required by code.
j. Supply air delivered to floor shall be no lower than one CFM per USF
and temperature no higher than fifty-five (55) degrees at discharge
shaft at roof-top unit.
k. Spray-on fireproofing on all core and shell structural steel members
floor, ceiling and walls as per code.
l. Operational combination passenger/freight elevator (4500 lb. Capacity).
m. Landlord will guarantee that all above ceiling Shell Condition Systems
are installed allowing for the installation without conflict of
building standard sized ceiling and above ceiling MEP components.
n. Landlord will guarantee that the building is free of Asbestos.
o. Sanitary waste vent, water connection on each floor.
p. All work and cost associated with ADA compliance outside of the
Premises will be the sole responsibility of the Landlord.
472284_8.DOC C-1
472284_8.DOC C-6
EXHIBIT C
RULES AND REGULATIONS
1. In case of invasion, mob, riot, public excitement, or other
commotion, Landlord reserves the right to prevent access to the Building during
the continuance of the same by closing the doors or otherwise, for the safety of
the tenants or Landlord and protection of property in the Building. Tenant and
its employees shall not go upon the roof of the Building without the written
consent of the Landlord; provided, however that Tenant shall be entitled to
install, operate and maintain two satellite dishes on the roof, no bigger than
24 inches in diameter, for the reception of television and Internet broadcasts.
2. The toilets, sinks and other water apparatus shall not be used for
any purpose other than that for which they were constructed.
3. If Landlord, by a notice in writing to Tenant, shall object to any
curtain, blind, shade or screen attached to, or hung in, or used in connection
with, any window or door of the Premises (which Landlord has not previously
approved), such use of such curtain, blind, shade or screen shall be
discontinued forthwith by Tenant. No awnings shall be permitted on any part of
the Premises. Tenant shall not place or install any antennae or aerials or
similar devices outside of the Premises.
4. Tenant shall not place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. The moving of heavy objects shall occur only between
such hours as may be designated by, and only upon previous notice to, the
manager of the Building, and the persons employed to move heavy objects in or
out of the Building must be acceptable to Landlord.
5. Tenant, upon the termination of the tenancy, shall deliver to the
Landlord all the keys of offices, rooms and toilet rooms which shall have been
furnished Tenant or which Tenant shall have had made, and in the event of loss
of any keys so furnished shall pay the Landlord therefor.
6. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage which includes keeping doors locked and windows and
other means of entry to the Premises closed. Landlord will not be responsible
for lost or stolen personal property, equipment, money or jewelry from Tenant's
area or any public rooms regardless of whether such loss occurs when such area
is locked against entry or not.
7. Tenant shall give prompt notice to Landlord of any accidents to or
defects in plumbing, electrical fixtures, or heating apparatus so that such
accidents or defects may be attended to promptly.
8. Tenant shall comply with the Declaration of Protective Covenants and
Restrictions attached to the Annexation Agreement as Exhibit VIII dated November
28, 1998.
472284_8.DOC C-1
472284_8.DOC C-7
EXHIBIT D
TRADE FIXTURES
The following are categories of trade fixture issues that may be removed by
Tenant, as Tenant's property, at the conclusion of the Lease term. Below each
group are some examples of specific items that may be included in the group. The
group is not limited to the example issues listed (A, B, C). Each group may
include additional similar items.
1. Telephone/computer systems
A) Switch
B) Patch panels
C) UPS system
D) Supplemental cooling equipment
2. Free standing custom furniture/mill work
A) Reception desk
B) Conference tables
C) Appliances (other than built-in appliances)
D) Prefabricated counter and storage units for distribution areas
3. Free standing manufactured furniture and equipment
A) Desks, chairs, files, counters, workstations
B) Computers, printers, copiers
4. Artwork
A) Paintings
B) Graphics, murals
C) Custom rugs, unattached
5. Plantings
6. Security systems-other than those which are included in Landlord's Work
A) Cards, readers
B) Security system drivers
C) Cameras
7. Interior signage
8. Paging systems
472284_8.DOC C-9
472284_8.DOC C-8
EXHIBIT E
LANDLORD'S WAIVER LETTER
This Waiver and Consent is made on this day of , 20 by and between
("Landlord") and ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant, entered into that certain Lease dated , 20 (hereinafter collectively referred to as the "Lease"), for the
premises located in the City of , -------------- County of State of , commonly
known as (the
"Premises"); and
WHEREAS, Tenant has received a loan from ("Lender") and a condition of said loan is that Lender receives
a first security interest in Tenant's personal property, some of which is
located at the Premises.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Landlord does hereby consent to Tenant's granting
of a security interest in its personal property to Lender and does hereby
subordinate its security rights in such personal property under the Lease to
Lender's liens, subject to the following terms and conditions:
1. Landlord's consent and subordination is effective only as to Tenant's
loan from Lender and shall not waive any rights Landlord may have to
consent to such other security interests as Tenant may elect to grant
in the future. Tenant will continue to remain liable for the continuing
performance of its lease obligation and in particular obligations
concerning removal of Tenant's personal property.
2. Lender shall have the right to remove the Tenant's personal property or
trade fixtures to which it has rights, and Landlord waives any rights
it may have to prevent such removal, from the Premises before the
expiration of the lease term or, if the lease term is terminated
earlier due to Tenant's default within fifteen (15) days after
termination of the term. If the property is not removed within such
period, then Tenant and Lender waive any rights either may have had to
the property and Landlord may remove property from the Premises.
3. Neither Tenant nor Lender may conduct any public or liquidation
sale at the Premises without prior written approval of Landlord.
4. Should Tenant default under its agreement with Lender and should Lender
desire to exercise its right to any security interest, Lender will so
advise Landlord and will use reasonable care in affecting the prompt
removal of personal property from the Premises and will be responsible
to repair any and all damage occasioned by such removal.
5. Any default by Tenant under its agreement with Lender which results in
a removal of Tenant's property from the Premises or otherwise impairs
Tenant's ability to fulfill its Lease obligations shall constitute an
Event of Default under the Lease.
IN WITNESS WHEREOF, Landlord has executed this Waiver and Consent as of
the day and date first written above.
LANDLORD:
By:
Its
Date:
AGREED AND ACCEPTED
TENANT: LENDER:
By: By:
-------------------------------------------------
its its
-------------------------------------------------
Date: Date:
-----------------------------------------------
472284_8.DOC D-1
EXHIBIT F
ACCEPTANCE LETTER
HP Woodland Falls I, LLC.
c/o Hamilton Partners
0000 Xxxx Xxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Re: Acceptance of Premises
Dear Landlord:
This letter will acknowledge that the undersigned, as tenant under that
certain Lease dated , 2000 (the "Lease"), has accepted the Premises (as defined
in the Lease) as of , 2001, subject to the limitations set forth in the Lease.
The undersigned further acknowledges that the Commencement Date of the Lease is
, and the Termination Date is . Please sign and return a copy of this letter
signifying your acceptance of these dates.
CDW Computer Centers, Inc.
By:
------------------------------
Acknowledged and Agreed:
HP Woodland Falls I, LLC.
By:
-------------------------------
TABLE OF CONTENTS
Page
-i-
I. Basic Terms..........................................................1
II. Premises and Term....................................................3
III. Base Rent............................................................4
IV. Taxes................................................................4
V. Operating Costs......................................................5
VI. Electric Service.....................................................8
VII. Alterations and Repairs..............................................8
VIII. Services............................................................10
IX. Use of Premises.....................................................11
X. Inspections.........................................................12
XI. Assignment and Subletting...........................................13
XII. Fire and Casualty Damage............................................15
XIII. Liability...........................................................16
XIV. Condemnation........................................................18
XV. Holding Over........................................................19
XVI. Quiet Enjoyment.....................................................19
XVII. Events of Default...................................................19
XVIII. Remedies............................................................20
XIX. Tenant's Bankruptcy Or Insolvency...................................23
XX. Mortgages...........................................................24
XXI. Mechanic's and Other Liens..........................................24
XXII. Notices.............................................................25
XXIII. Tenant's Signage Rights.............................................25
XXIV. Certain Rights Reserved To The Landlord.............................26
XXV. Miscellaneous.......................................................26
XXVI. Landlord's Exculpation..............................................29
HP XXXXXXXX OFF:252118-1 1
HP XXXXXXXX OFF:252118-1 1
