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EXHIBIT 10.9
SUBLEASE
This Sublease is made and entered into as of the ____ day of October,
1996, by and between GIS Information Systems, Inc., an Illinois corporation,
referred to herein as the "Sublessor", and SPR Chicago, Inc., an Illinois
corporation, referred to herein as the "Sublessee".
W I T N E S S E T H:
WHEREAS, Sublessor, as "Tenant", and LaSalle National Bank, not
personally but as Trustee under Trust Agreement number 107194, as "Landlord",
have heretofore entered into a certain Lease, dated June 10, 1987, as amended
by a certain Lease Amendment Agreement, dated as of August 1, 1990, between
Sublessor and The Aetna Casualty and Surety Company (Collectively, the "Master
Lease"), a copy of which Master Lease is attached hereto as Exhibit "A",
pursuant to which, among other things, Sublessor leased certain premises (the
"Master Leased Premises") on the first and second floors of the building
commonly known as 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx (the "Building"), and
more fully described in the Master Lease; and
WHEREAS, the Landlord's interest in the Master Lease is now owned by
Plum Tree National, Ltd. (The "Master Landlord"); and
WHEREAS, Sublessor desires to sublease to Sublessee, and Sublessee
desires to sublease from Sublessor, a part of the Master Leased Premises
(referred to herein as the "Subleased Premises"), consisting of the areas
described in numbered paragraph 2 below;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as
follows:
1. DEFINED TERMS. Terms used in this Sublease as defined terms
and not otherwise defined herein, shall have the same meanings as in the Master
Lease.
2. SUBLEASED PREMISES.
(a) The Subleased Premises shall consist initially of the
area located on the first floor of the Building and designated "Space A" on the
drawing attached to this Sublease as Exhibit B, which Sublessor and Sublessee
agree, for all purposes of this Sublease, contains 4,000 square feet.
Sublessor shall deliver to Sublessee, and Sublessee shall accept from
Sublessor, possession of Space A on the later to occur of October 14, 1996 or
the day on which Sublessor receives the Master Landlord's written consent to
this Sublease (the "Commencement Date"). When the Commencement Date is
ascertainable, Sublessor and Sublessee shall enter into a side-letter agreement
confirming the actual date of the Commencement Date.
(b) Effective as of a date specified by at least 10 days
prior written notice from Sublessor to Sublessee, which date shall not be
earlier than April 1, 1997 or later than July 1, 1997 (the "Space B
Commencement Date"), Sublessor shall deliver to Sublessee, and Sublessee shall
accept from Sublessor, possession of the area designated as "Space B" on
Exhibit B hereto,
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consisting of the remainder of the space on the first floor of the Building
leased by Sublessor, and, thereafter, the Subleased Premises shall consist of
Space A and Space B. Sublessor and Sublessee agree that, for all purposes of
this Sublease, the Subleased Premises, from and after the Space B Commencement
date, shall contain 9,107 square feet. When the Space B Commencement Date is
ascertainable, Sublessor and Sublessee shall enter into a side letter agreement
confirming the actual date of the Space B Commencement Date. Sublessor agrees
to xxxxx Base Rent (defined herein) at a rate of two times the per diem rate
for Base Rent for that portion of the Subleased Premises to be delivered on the
Space B Commencement Date for each day following July 1, 1997, until delivery
of possession of such space (such abatement being hereinafter referred to as
the "Space B Delivery Abatement"). The Space B Delivery Abatement shall be
applied immediately following the Space B Commencement Date.
(c) During the period beginning on the Commencement Date
and ending on the Space B Commencement Date (at which time the Subleased
Premises will consist of the entire first floor area leased by Sublessor),
Sublessee and Sublessee's employees and invitees shall have the right to use,
in common with Sublessor and Sublessor's employees and invitees and subject to
such reasonable rules and regulations governing the use thereof as Sublessor
may from time to time establish, which rules and regulations shall not
unreasonably interfere with Sublessee's use and enjoyment of the Subleased
Premises, Sublessor's first floor entrance and reception area and the kitchen
and conference room presently located within Space B. Sublessor and Sublessee
shall each indemnify and hold harmless the other against any loss, claim,
liability, cost or expense, including reasonable attorneys' fees and expenses,
arising out of the use or possession of the areas in Space B used in common by
Sublessor and Sublessee prior to the Space B Commencement Date.
3. DEMISE OF SUBLEASED PREMISES. Sublessor hereby subleases and
demises to Sublessee, and Sublessee hereby accepts from Sublessor, on the terms
and conditions set forth above and hereinafter, the Subleased Premises.
4. RENT.
(a) For each Lease Year (defined below) during the Term
of this Sublease, Sublessee shall pay to Sublessor, as rent for the Subleased
Premises an annual sum, determined as follows (the "Base Rent"):
During the first Lease Year: $11.00 multiplied by
the number of square
feet contained in the
Subleased Premises;
During the second Lease Year: $11.50 multiplied
by the number of
square feet contained
in the Subleased
Premises;
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During the third Lease Year: $12.00 multiplied by
the number of square
feet contained in the
Sublease Premises;
During the fourth Lease Year: $12.50 multiplied by
the xxxxx of square feet
contained in the
Subleased Premises;
During the fifth Lease Year: $13.00 multiplied by
the number of square
feet contained in the
Sublease Premises;
As used herein, the term "Lease Year" shall mean the period of
365 consecutive days beginning on the Commencement Date and ending on the day
before the first anniversary thereof, and each subsequent period of 365
consecutive days, except that the last Lease Year shall end on the last day of
the Term. Subject to the provisions of subparagraph 4(c) hereof, the Base Rent
shall be paid in equal monthly installments, in advance, beginning on the
Commencement Date and continuing on the first day of each calendar month during
the Term thereafter.
(b) The Base Rent and all other sums payable hereunder
(such other sums being referred to herein as "Additional Rent") shall be paid
to Sublessor without deduction, set off, prior notice or demand, except as
provided in paragraph 13(c) hereof, in lawful money of the United States of
America, at Sublessor's office at 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx
00000, or at such other place as Sublessor may specify from time to time by
written notice to Sublessee.
(c) Sublessee shall pay the monthly installment of Base
Rent due for the first full calendar month of the Term to Sublessor
concurrently with execution and delivery of this Sublease. If the Commencement
Date should occur on a day other than the first day of a calendar month, or if
the last day of the Term should occur on a day other than the last day of a
calendar month, then, the Base Rent and Additional Rent payable for such
fractional month shall be prorated on a daily basis.
5. OPERATING COSTS.
(a) In addition to the Base Rent provided for in
paragraph 4 above, and in addition to any other Additional Rent payable by
Sublessee hereunder, Sublessee shall reimburse Sublessor for Sublessee's
Proportionate Share (as hereinafter defined) of the costs incurred by Sublessor
for Taxes and Operating Expenses payable to the Master Landlord, as provided in
the Master Lease (collectively "Base Expenses"), to the extent that such Base
Expenses exceed those payable by Sublessor in respect of the calendar year 1996
("Excess Expenses").
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(b) Sublessee's Proportionate Share shall equal the ratio
of the number of square feet contained within the Subleased Premises from time
to time to the number of square feet contained within the entire Master Leased
Premises, expressed as a percentage.
(c) Sublessee shall pay Sublessee's Proportionate Share
of Excess Expenses for each calendar year, or part thereof during the Term,
less the amount of any monthly estimated payments thereof made by Sublessee
pursuant to the requirements of subparagraph 5(d) below, to Sublessor within
30 days after receipt of Sublessor's statement thereof, which statement shall
include Sublessor's calculation of Sublessee's Proportionate Share of such
Excess Expenses, set forth in reasonable detail, a copy of the annual statement
of Taxes and Operating Expenses for such calendar year, as furnished to
Sublessor by the Master Landlord, and an accounting by Sublessor of the monthly
estimated payments of Excess Expenses for such calendar year received by
Sublessor.
(d) Sublessor shall have the right from time to time, but
not more frequently than once in any calendar year, to prepare reasonable
estimates of the Excess Expenses payable by Sublessee hereunder and to require,
by written notice to Sublessee, that Sublessee pay such estimated amounts to
Sublessor, in monthly installments, in advance, together with Sublessee's
payments of Base Rent. All such monthly estimated payments shall be credited
against the Excess Expenses payable by Sublessee for the calendar year to which
such monthly estimated payments pertain. In the event Sublessee's monthly
estimated payments of Excess Expenses for any calendar year are greater than
the Excess Expenses payable by Sublessee for such calendar year, Sublessee
shall be entitled to credit the overpayment against the monthly estimated
payments of Excess Expenses next coming due hereunder, or, if such overpayment
is of Excess Expenses for the calendar year in which the Term ends and no
further sums are due from Sublessee to Sublessor under this Sublease, Sublessor
shall refund such overpayment to Sublessee within 30 days after the time at
which the amount of the Excess Expenses payable by Sublessee for such final
calendar year has been determined.
6. ELECTRICITY. Sublessor has advised Sublessee that
Sublessor's first floor space is separately metered for electricity. Sublessee
shall be responsible for and shall pay to Sublessor from time to time within 10
days after receipt of Sublessor's statement thereof, Sublessee's Share (as
defined below) of the cost of electricity consumed within such first floor
space ("Electricity Expense"), as determined by the statements to Sublessor
from the public utility providing such electricity. During the period
beginning of the Commencement Date and ending on the Space B Commencement date,
Sublessee's Share of the Electricity Expense shall be forty-three and nine
tenths percent (43.9%), which, Sublessor, represents is the ratio of the number
of square feet within the Subleased Premises to the number of square feet
contained within the Sublessor's first floor space. In the event either
Sublessor or Sublessee shall use electricity in extraordinary amounts, the
parties shall make an equitable allocation based on such use. If no such
allocation can be agreed upon, then a final determination shall be made by a
representative of the public utility for electric service. From and after the
Space B Commencement Date, Sublessee shall be responsible for the entire
Electricity Expense and shall contract directly with the public utility for
electric service to the Subleased Premises.
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7. TERM. The term of this Sublease ("Term") shall begin on the
Commencement Date and shall end on September 30, 2002, unless sooner terminated
by reason of Sublessee's default or by reason of the exercise by Sublessor or
Sublessee of a termination option, as provided in paragraph 11 hereof.
8. CONDITION OF SUBLEASED PREMISES. Sublessee agrees to accept
the Subleased Premises in their "as is" condition, and Sublessee acknowledges
that Sublessor has not agreed and is under no obligation to make any repairs,
replacements or improvements to the Subleased Premises and that Sublessor has
made no representation or warranty concerning the condition of the subleased
premises or their suitability for Sublessee's proposed use.
9. USE. Sublessee shall use the Subleased Premises for the uses
permitted under the Master Lease (excluding the use referred to in the insert
on page 4-a of the Master Lease) and for no other purpose.
10. ALTERATIONS AND IMPROVEMENTS. Sublessee shall not make any
alterations or improvements to the Subleased Premises without the prior written
consent of Sublessor. Sublessor agrees that Sublessor will not withhold or
delay its consent to a proposed alteration or improvement unreasonably, but (i)
Sublessor may withhold Sublessor's consent to a particular alteration or
improvement notwithstanding that the Master Landlord has consented thereto, and
(ii) Sublessor may condition its consent to a particular alteration or
improvement upon (A) Master Landlord's consent thereto, as provided in the
Master Lease, and (B) Sublessee's agreement to remove such alteration or
improvement at the end of the Term and restore the Subleased Premises to their
condition prior to the construction of such alteration or improvement, all at
Sublessee's sole expense. Further, Sublessor may require that Sublessee
deliver to Sublessor a cash deposit or other security acceptable to Sublessor,
in an amount equal to the cost of any such removal and restoration, as
reasonably determined by Sublessor, estimated to exceed $5,000.00.
11. TERMINATION OPTIONS.
(a) Sublessee shall have a one time right (the "First
Termination Option") to terminate this Sublease, effective as of January 1,
2001, by delivering a written notice of such termination to Sublessor (the
"First Termination Notice") on or prior to July 1, 2000, accompanied by
Sublessee's payment to Sublessor in an amount equal to fifty percent (50%) of
the Base Rent payable for the period from January 1, 2001 through the end of
the Term (the "First Termination Fee"). In the event Sublessee serves the
First Termination Notice, as provided above, and delivers to Sublessor the
First Termination Fee, this Sublease shall terminate on December 31, 2000, and
Sublessee shall, on or before such date, vacate the Subleased Premises and
surrender possession thereof to Sublessor, in the manner and condition provided
in the Master Lease.
(b) In addition to the First Termination Option,
Sublessee shall have a one time right (the "Second Termination Option") to
terminate this Sublease, effective as of January 1, 2002, by delivering a
written notice of such termination to Sublessor (the "Second Termination
Notice")
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on or prior to July 1, 2001, accompanied by Sublessee's payment to Sublessor in
an amount equal to seventy-five percent (75%) of the Base Rent payable for the
period from January 1, 2002 through the end of the Term (the "Second
Termination Fee"). In the event Sublessee serves the Second Termination
Notice, as provided above, and delivers to Sublessor the Second Termination
Fee, this Sublease shall terminate on December 31, 2001, and Sublessee shall,
on or before such date, vacate the Subleased Premises and surrender possession
thereof to Sublessor, in the manner and condition provided in the Master Lease.
12. BROKERAGE FEES. Sublessee shall pay all brokerage fees
payable by reason of this Sublease to Xxxxxxxx Real Estate, which is
Sublessee's broker. Sublessor represents to Sublessee that Sublessor has
dealt with no broker or finder in connection with this Sublease, and Sublessee
represents to Sublessor that Sublessee has dealt with no broker or finder in
connection with this Sublease other than Xxxxxxxx Real Estate.
13. MASTER LEASE.
(a) This Sublease is subject to, and Sublessee accepts
subject to, all the terms, covenants, provisions, conditions and agreements
contained in the Master Lease and the matters, if any to which the Master Lease
is subject and subordinate. This Sublease shall also be subject to, and
Sublessee accepts subject to, any amendments and supplements to the Master
Lease made subsequent to this Sublease so long as any such amendments and
supplements shall not adversely affect Sublessee's quiet enjoyment of Subleased
Premises. Notwithstanding the preceding sentence to the contrary, no consent,
waiver, amendment, or other change by Master Landlord of Sublessor's
obligations and liabilities as tenant under the Master Lease shall reduce,
limit or expand Sublessee's obligations and liabilities to Sublessor hereunder
or diminish Sublessee's rights hereunder unless Sublessee, Sublessor and Master
Landlord shall have agreed in writing that such consent, waiver, amendment or
change shall be effective hereunder. Except as set forth in subparagraph (b)
below, the terms and conditions of the Master Lease are incorporated in this
Sublease as though fully set forth herein, and, except as set forth below,
Sublessee shall perform, observe and be bound by all of the terms and
conditions of the Master Lease to be performed and observed by the Tenant
thereunder, insofar as the same are applicable to the Subleased Premises;
Sublessor shall perform, observe and be bound by, or take commercially
reasonable measures to cause the Master Landlord to perform and observe, all of
the terms and conditions of the Master Lease to be performed or observed by the
Landlord thereunder, insofar as the same are applicable to the Subleased
Premises; Sublessee shall have, as to Sublessor, all of the rights and benefits
arising and accruing to the Tenant under the Master Lease; and Sublessor shall
have, as to Sublessee, all of the rights and benefits arising or accruing to
the Landlord under the Master Lease. Notwithstanding the foregoing, Sublessor
shall not be liable to Sublessee for performance or non-performance of the
obligations of Master Landlord under the Master Lease, and Sublessee shall look
solely to and hold solely responsible the Master Landlord for the performance
of such obligations. If Master Landlord shall default in the performance of
any of its obligations under the Master Lease with respect to the Subleased
Premises, Sublessee shall have the right to take such action in its own name
and, for that purpose and only to such extent, all of the rights of Sublessor
under the Master Lease hereby are conferred upon and assigned to Sublessee, and
Sublessee hereby is subrogated to such
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rights to the extent that the same shall apply to the Subleased Premises. If
and to the extent that any of Master Landlord's obligations under the Master
Lease are required to be performed only when or to the extent requested by
Sublessor (and are not otherwise covered by an agreement among Master Landlord,
Sublessor and Sublessee), Sublessor shall endorse and forward Sublessee's
requests therefor to Master Landlord or, upon Sublessee's written request in
each case, Sublessor shall permit Sublessee to submit such requests to Master
Landlord in Sublessor's name and Sublessor shall deliver to Sublessee such
documentation, including without limitation an irrevocable power-of-attorney
coupled with an interest, for such limited purpose, as shall be reasonably
necessary to effectuate such requests. In the event of conflict between any
provision of this Sublease and a provision of the Master Lease, this Sublease
shall, as between Sublessor and Sublessee, control.
(b) The following provisions of the Master Lease are not
incorporated herein and shall not apply to this Sublease:
(i) The description of the Premises, together
with references to components of the Master Lease Premises including,
without limitation, the Initial Office Space and the Computer Space;
(ii) The Term;
(iii) Sections 3 and 4, pertaining to Base Rent and
Additional Rent , but not pertaining to the definitions of Taxes and
Operating Expenses (including the exclusions thereto) or added
provisions granting tenant certain rights relating to the auditing of
books;
(iv) All provisions pertaining to construction of
improvements by the Landlord, including, without limitation, Exhibit B
and the attachment thereto;
(v) Section 7B, pertaining to billing for
electricity;
(vi) The second grammatical paragraph of page 9a;
(vii) Sections 11A and 11B, pertaining to
insurance;
(viii) Sections 26 and 27, pertaining to security
deposit and real estate brokers;
(ix) Page 11a;
(x) Addendum to Lease;
(xi) Lease Amendment Agreement;
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(xii) All exhibits and attachments related to any
of the foregoing inapplicable provisions.
(c) Sublessor and Sublessee agree, each with the other,
that neither will take or permit any action or fail to perform or observe any
obligation, which causes an event of default under the Master Lease and/or
causes the Master Lease to be terminated or forfeited, and each shall indemnify
the other and hold the other harmless from and against any and all claims,
demands, suits, costs, expenses, damages and liabilities, including reasonable
attorneys' fees, arising by reason of any act or omission on the part of the
indemnifying party which causes the Master Lease to be terminated or forfeited.
Sublessor shall, promptly upon receipt, deliver to Sublessee copies of all
notices of default under the Master Lease which have been delivered to
Sublessor. In the event that Sublessor defaults in any payment or performance
obligation contained in the Master Lease, Sublessee may, in addition to any
other remedies which Sublessee may have by reason of such default, but shall
not be obligated to, cure such default under the terms of the Master Lease, if
permitted so to cure by Master Landlord, and the amount of any payment made or
cost or expense to cure such default shall be treated as a sum of money
advanced by Sublessee to Sublessor and shall be repayable by Sublessor to
Sublessee within 30 days of demand. If said sum so advanced is not so paid
within said 30 day period, Sublessee shall have the right to deduct such amount
from any installment of Base Rent or other amounts next becoming due and
payable under this Sublease.
14. EVENTS OF DEFAULT.
(a) Each of the following shall constitute an event of
default by Sublessee under this Sublease and shall entitle Sublessor to
exercise any and all remedies available to the Master Landlord under the Master
Lease and/or available to Sublessor by operation of law:
(i) Sublessee shall fail to pay when due any
monthly installment of Base Rent or Excess Expenses, or shall fail to
pay when due any other sum payable hereunder, and such failure shall
continue for five days after delivery to Sublessee of Sublessor's
written notice thereof;
(ii) Sublessee shall fail to observe or perform
any other term or condition to be observed or performed by Sublessee
hereunder or under the Master Lease, and such failure shall continue
for 30 days after delivery to Sublessee of Sublessor's written notice
thereof, unless such failure of performance, by its nature, cannot be
cured within 30 days, in which event, such failure of performance
shall be deemed cured if Sublessee commences to cure the same within
such 30 day period and completes such cure as soon as reasonably
practicable; and
(iii) Sublessee shall file a petition in bankruptcy
or avail itself of any other state or federal law providing for the
relief of debtors.
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(b) In the event of a breach by Sublessor of any of the
covenants, agreements, terms or conditions which are contained herein,
Sublessee may exercise any remedies available to Sublessee herein, or any other
legal remedies available to Sublessee with respect to a default this Sublease
or any act, omission, negligence or willful misconduct of Sublessor or its
agents, servants, employees, officers, contractors and invitees, whether at law
or in equity, all such rights and remedies being cumulative and the exercise of
any one of which shall not exclude any other. Sublessee shall use reasonable
efforts to mitigate any damages it may suffer by reason of a default by
Sublessor hereunder.
15. CONSENT OF MASTER LANDLORD. Sublessee acknowledges that,
under the terms of the Master Lease, this Sublease requires the prior written
consent of the Master Landlord (the "Master Landlord's Consent"). Sublessor
agrees to use reasonable diligence to obtain Master Landlord's Consent,
promptly upon delivery to Sublessor of at least three counterparts of this
Sublease, duly executed by Sublessee. If Sublessor has not received Master
Landlord's Consent within 30 days after receipt of such executed counterparts
of this Sublease from Sublessee, either Sublessor or Sublessee shall have the
right, by written notice to the other party, to elect to terminate this
Sublease.
16. ASSIGNMENT AND SUBLETTING.
(a) Sublessee shall not mortgage, pledge, hypothecate or
otherwise encumber all or any part of its interest under this Sublease. In
addition, Sublessee shall not assign this Sublease or any of its rights
hereunder, or sublet all or any part of the Subleased Premises, or suffer or
permit the use or occupancy of all or any part of the Subleased Premises by any
party other than Sublessee, without in each instance requesting and obtaining
the prior written consent of Sublessor and Master Landlord.. Any request for
Sublessor's consent to any proposed assignment, subletting or use of the
Subleased Premises by a party other than Sublessee (each, a "Transfer") shall
be in writing, setting forth in reasonable detail the terms of the proposed
Transfer and including copies of the proposed assignment or sublease relating
thereto, as well as reasonable information concerning the identity, financial
strength and business of the proposed Assignee, Sublessee or other occupant of
the Subleased Premises. In addition, Sublessee shall furnish promptly any
further information concerning the proposed Transfer which Sublessor may
reasonably request.
(b) Sublessor agrees that it will not withhold or delay
unreasonably its consent to a proposed Transfer; provided, however, that
Sublessor may withhold its consent to any Transfer which (i) is not consented
to by the Master Landlord, if such Transfer, under the terms of the Master
Lease, requires the consent of the Master Landlord thereto, or which (ii) in
the reasonable judgment of Sublessor would cause Sublessor to be in breach of
the Master Lease. If Sublessor consents to any Transfer, Sublessee shall enter
into and effect such Transfer only upon terms and conditions consistent with
Sublessee's request for Sublessor's consent, the information furnished in
connection with such request and any conditions to Sublessor's consent imposed
by Sublessor, and Sublessee shall further enter
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into and cause the transferee to enter into any and all agreements prepared by
Sublessor or its attorneys, as may be appropriate to implement any amendment to
this Sublease required by such Transfer and/or to satisfy any of the conditions
to Sublessor's consent. No consent of Sublessor to any Transfer shall release
or be construed as releasing any obligation of Sublessee under this Sublease,
except if and to the extent such consent by Sublessor shall expressly release
or modify any such obligation. Sublessee shall pay to Sublessor on demand,
Sublessor's reasonable costs incurred in connection with each request by
Sublessee for consent to a Transfer, including the reasonable fees and expenses
of Sublessor's attorneys.
(c) Notwithstanding the foregoing to the contrary,
Sublessee may, without Sublessor's consent, assign, transfer or sublet its
entire interest in this Sublease, the leasehold estate created hereby and the
Subleased Premises to any of the following (each a "Permitted Transferee"), (i)
any successor to Sublessee resulting from a merger or consolidation with, of or
into Sublessee, (ii) any entity (including any parent) that controls Sublessee
or any entity (including any affiliate) that is under the common control of or
with Sublessee or is acquired by Sublessee, its parent or affiliate, or (iii)
any entity that acquires all or substantially all of the assets of Sublessee,
or that acquired a material portion of Sublessee's business; and provided,
further, the sale, transfer or exchange of Sublessee's stock or the stock of
any entity described in (i), (ii) or (iii), on a nationally recognized exchange
shall not be or be deemed to be an assignment or transfer or a subletting of
the sublessee's interest in this Sublease, the leasehold estate hereby created
or of the Subleased Premises.
17. EXPANSION OPTION.
(a) In the event Sublessor elects to offer for sublease
Sublessor's space located on the second floor of the Building, which, for all
purposes of this Sublease, Sublessor and Sublessee agree contains 15,954 square
feet (the "Second Floor Space"), Sublessee shall have an option, on the terms
and conditions set forth in this paragraph, to add the Second Floor Space to
the Subleased Premises, for a term coterminous with the Term of this Sublease.
Sublessor shall, prior to offering the Second Floor Space to others, notify
Sublessee of the availability of the Second Floor Space by a written notice
(the "Offer Notice"), delivered to Sublessee at least 120 days prior to the
date on which the Second Floor Space will be available for occupancy (the
"Second Floor Delivery Date"). Sublessor's Offer Notice shall set forth
Sublessor's reasonable, good faith estimate of the base rent and other economic
terms on which Sublessor could sublease the Second Floor Space to an unrelated
third party for a term equal to the then unexpired portion of the Term of this
Sublease and in the condition in which Sublessor is offering the Second Floor
Space (which the parties contemplate will be "as-is") (collectively, the
"Second Floor Terms").
(b) Provided that no event of default on the part of
Sublessee is then existing, and provided that no such event of default occurs
prior to the Second Floor Delivery Date, Sublessee shall have the right
exercisable by written notice ("Acceptance Notice") to Sublessor within five
business days after delivery of the Offer Notice, to elect to add the Second
Floor Space to the Subleased Premises for a Term commencing on the Second Floor
Delivery Date and ending on the last day of the Term of this Sublease. In the
event Sublessee serves an Acceptance Notice, Sublessee shall state therein
whether or not Sublessee accepts the Second Floor Terms set forth in
Sublessor's Offer Notice and, if Sublessee does not accept such terms, which of
such Second
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Floor Terms Sublessee does not accept and, as to each of such unacceptable
terms, an alternative, determined reasonably and in good faith, which would be
acceptable to Sublessee. In the event Sublessee accepts all of the Second
Floor Terms set forth in Sublessor's Offer Notice, the Second Floor Space
shall as of the Second Floor Delivery Date, become part of the Subleased
Premises and shall be subject to all the terms and conditions of this Sublease,
except as otherwise provided in the Second Floor Terms.
(c) In the event Sublessee does not accept the Second
Floor Terms, then Sublessor and Sublessee shall, for a period of five business
days after delivery to Sublessor of Sublessee's Acceptance Notice (the
"Negotiation Period"), negotiate with each other in good faith concerning the
Second Floor Terms which were not accepted by Sublessee. In the event that, at
the end of the Negotiation Period, Sublessor and Sublessee are unable to reach
agreement concerning the Second Floor Terms, Sublessee shall have the right, by
written notice to Sublessor within three business days after the end of the
Negotiation Period (the "Election Notice"), the elect either (i) to withdraw
Sublessee's Acceptance Notice or (ii) to have the Second Floor Terms determined
by binding arbitration, as provided herein. Failure of Sublessee to deliver
the Election Notice within such three business day period shall be deemed an
election by Sublessee to withdraw Sublessee's Acceptance Notice. In the event
Sublessee elects, as provided above, to have the Second Floor Terms determined
by binding arbitration, Sublessee's Acceptance Notice shall thereafter be
irrevocable, and the matters upon which Sublessor and Sublessee are unable to
agree shall be referred to an arbitrator selected by Sublessor and Sublessee,
or if Sublessor and Sublessee are unable to agree upon an arbitrator, an
arbitrator appointed by the Chicago, Illinois office of the American
Arbitration Association, whose decision as to such matters shall be final and
binding upon Sublessor and Sublessee. The arbitrator shall be a person with
at least 10 years' experience in commercial leasing in the Chicago, Illinois
western suburbs. The fees and expenses of the arbitrator shall be paid by
Sublessor and Sublessee in equal shares. Upon request by Sublessor, Sublessee
shall execute and deliver to Sublessor an appropriate amendment to this
Sublease, reflecting the addition of the Second Floor Space to the Subleased
Premises on terms established as set forth above in this paragraph.
(d) In the event Sublessee does not deliver an Acceptance
Notice with in the 120 day period provided in subparagraph (a) above, or in the
event Sublessee's Acceptance Notice is withdrawn or deemed withdrawn, Sublessee
shall have no further rights under this paragraph or with respect to the Second
Floor Space, and, thereafter, Sublessor shall be free to sublease the same to
any party upon such terms as Sublessor, in its sole discretion, may accept.
18. BUILT-IN OFFICE FURNITURE. Sublessor agrees to leave in
the Subleased Premises Sublessor's existing built-in cubicle furnishings,
consisting generally of work surface, overhead storage and pedestal
drawer/files. Sublessee shall have the right, at no cost to Sublessee to use
such furniture during the Term of this Sublease and any extension thereof to
which Sublessor and Sublessee may agree; however, such furniture shall remain
the property of Sublessor. Sublessee agrees that such furniture may remain
within the Subleased Premises at the time possession of the Subleased Premises
is delivered to Sublessee.
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19. INSURANCE.
(a) Sublessee shall maintain at its sole expense
throughout the Term the following types of insurance:
(i) comprehensive general public liability
insurance for bodily injury, death and damage to property of others,
including tenant's legal liability for damage to the Subleased
Premises and blanket contractual liability, with respect to all
business conducted in, at, upon or from the Subleased Premises and the
use and occupancy thereof including the activities, operations and
work conducted or performed by Sublessee, by any other person on
behalf of the Sublessee, by those for whom Sublessee is in law
responsible and by any other person on the Subleased Premises. The
aforesaid policy or policies shall be written with inclusive limits of
not less than $3,000,000 for any one accident or occurrence or such
higher limits as the Sublessor shall reasonably require from time to
time;
(ii) all risk insurance including extended
coverage endorsement for the risks of water escape and leakage from
fire protective devices and such additional perils as the Sublessor
shall reasonably require from time to time in respect of Sublessee's
fixtures, Sublessee's furnishings, the Sublessee's equipment, and the
Subleased Premises. The aforesaid policy or policies shall be written
with insurance limits of not less than the full replacement cost
thereof, on a stated amount basis, subject only to such deductibles
and exclusions as Sublessor may approve; and
(iii) such other insurance as Sublessor may
reasonably require having regard to the risks which are customarily
insured against by prudent tenants of similar leased premises.
(b) All policies of physical damage insurance required to
be maintained by Sublessee on property covered under this Paragraph shall be
taken out with insurers reasonably acceptable to the Sublessor, shall be in
form and on terms and conditions satisfactory from time to time to the
Sublessor, shall name as additional insured (i) Sublessor, (ii) the Master
Landlord, and (iii) such other persons as Sublessor may from time to time
designate, and shall be non-contributing with, and shall apply only as primary
and not as excess to, any other insurance available to the Sublessor.
(c) All policies of liability insurance required to be
maintained by Sublessee shall be taken out with insurers reasonably acceptable
to Sublessor and shall be in a form and on terms and conditions reasonably
acceptable to Sublessor and shall include Sublessor as additional insured and
in addition shall contain cross-liability and severability clauses in respect
of claims by Sublessee or other persons or both as if Sublessor was separately
insured. If both Sublessor and Sublessee have claims to be indemnified under
any such liability insurance, the indemnity shall be first applied to the
settlement of the claim of Sublessor and the balance to the settlement of the
claim of Sublessee.
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(d) All policies of insurance required to be maintained
by Sublessee shall contain provisions prohibiting the insurer from materially
altering to the detriment of Sublessor or canceling the coverage or allowing
it to lapse without first giving Sublessor at least 30 days' prior notice
thereof.
(e) Sublessee shall deliver to Sublessor from time to
time copies of current policies or certificates or other proof as may be
required by Sublessor to establish Sublessee's insurance coverage in effect
from time to time and the payment of premiums thereon. If Sublessee fails to
insure or pay premiums or to deliver satisfactory proof thereof as so required,
Sublessor may but shall not be obliged to obtain such insurance on behalf of
Sublessee and Sublessee shall pay to Sublessor forthwith on demand Sublessor's
cost of obtaining such insurance.
(f) Each of Sublessor and Sublessee hereby waives any and
every claim for recovery from the other for any and all loss or damage to the
Building or Subleased Premises or to the contents thereof, whether such loss
or damage is due to the negligence of Sublessor or Sublessee or its respective
agents or employees, to the extent that the amount of such loss or damage is
recovered under its policies of insurance; provided, however, that the
foregoing waiver shall not be operative in any case where the effect thereof is
to invalidate any insurance coverage of the waiver party or increase the cost
of such insurance coverage; provided further, however, that Sublessor and
Sublessee each agree to give notice of the terms of this mutual waiver to each
insurance company which has issued, or in the future may issue, policies of
physical damage to it, and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverage by reason
of said waiver.
20. LIMITATION OF LIABILITIES; INDEMNIFICATION.
(a) Subject to the provisions of paragraph 13(c) hereof,
and excluding any of the following arising out of Sublessor's negligence,
willful misconduct or breach of Sublessor's obligations under this Sublease, no
claim for damages or compensation or abatement of rent or otherwise shall be
made by Sublessee by reason of inconvenience, nuisance or discomfort arising
from the diminution in the quality or quantity or interruption or cessation of
or failure in the supply of any utilities, services or systems serving the
Subleased Premises or from the repair, renovation or rebuilding of any portion
of the Building or basic systems thereof nor shall the same give rise to a
claim in Sublessee's favor that such interruption, cessation, failure, repair,
renovation or rebuilding constitutes actual or constructive, total or partial
eviction from the Subleased Premises.
(b) To the extent not prohibited by law, and excluding
the negligence and willful misconduct of Sublessor, and Sublessor's employees,
agents, servants, contractors, or invitees, Sublessor shall not be liable or in
any way responsible for the death of or injury to Sublessee or others, or for
the loss of or damage to property (including books, records, files, money,
securities, negotiable instruments, papers or other valuables) of Sublessee or
others, or for any indirect or consequential or economic loss, injury or damage
(including business losses or damages for personal discomfort or inconvenience)
of Sublessee or others arising from or out of any occurrence or situation in,
upon, at or relating to the Subleased Premises and/or the Building, and without
limiting the generality of the foregoing, Sublessor shall not be
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liable or in any way responsible for any death, injury, loss or damage to
persons or property resulting from electricity, water, rain, flood, snow, ice
or leaks from any part of the Subleased Premises or the Building or from the
pipes, sprinklers, appliances, plumbing works, roof, windows or subsurface of
any floor or ceiling of the Building; or caused by other tenants, occupants or
persons in the Subleased Premises or other premises in the Building or the
public; or caused by operations in the construction of any private, public or
quasi-public work; or against which Sublessee is required to insure pursuant to
this Sublease.
(c) Sublessee shall and hereby does indemnify the
Sublessor, its shareholders, directors, officers, agents and employees,
contractors, licensees or concessionaires, and save it and each of them
harmless from and against any and all claims, actions, damages, liabilities,
loss, costs and expenses, including legal expenses, whatsoever including,
without limitation, those in respect of loss of life, personal injury in, upon
or at the Subleased Premises, the occupancy or use of the Subleased Premises,
signs of Sublessee, or any act or omission of, or work done by or on behalf of,
or breach of this Sublease by, Sublessee, its servants, agents, employees,
contractors, sub-tenants, licensees, concessionaires or other occupants of the
Subleased Premises, or any person for whom Sublessee is responsible at law,
including, without limitation, Sublessee's customers or any person having
business with Sublessee. This indemnification shall survive the expiration of
the Term by lapse of time or otherwise.
(d) Sublessor shall and hereby does indemnify the
Sublessee, its shareholders, directors, officers, agents and employees,
contractors, licensees or concessionaires, and save it and each of them
harmless from and against any and all claims, actions, damages, liabilities,
loss, costs and expenses, including legal expenses, whatsoever including,
without limitation, those in respect of loss of life, personal situation in,
upon or at the Subleased Premises, the occupancy or use of the Building by
Sublessor, signs of Sublessor, or any act or omission of, or work done by or on
behalf of, or breach of this Sublease by, Sublessor, its servants, agents,
employees, contractors, sub-tenants, licensees, concessionaires or other
occupants of the Subleased Premises, or any person for whom Sublessor is
responsible at law, including, without limitation, Sublessor's customers or any
person having business with Sublessor. This indemnification shall survive the
expiration of the Term by lapse of time or otherwise.
21. NOTICES. All notices or demands required or permitted under
this Sublease shall be in writing and shall be addressed as set forth herein
below or to such other address as either party may, by written notice to the
other, specify in writing from time to time. All notices shall be deemed
served upon delivery, if hand-delivered, or 24 hours after delivery to Federal
Express or another recognized overnight courier with charges prepaid, if served
by overnight courier, or three business days after deposited in the United
States mail, with postage pre-paid, registered or certified mail, return
receipt requested, if served by mail. Notices hereunder may also be served by
facsimile, with a copy sent by United States mail postage prepaid, and shall be
deemed served when received by the recipient's facsimile machine.
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Notices to Sublessor shall be addressed as follows:
GIS Information Systems, Inc.
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: President
Facsimile (000) 000-0000
Notices to Sublessee shall be addressed as follows:
SPR Chicago, Inc.
0000 Xxxxxx Xxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Wildman, Harrold, Xxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
22. QUIET ENJOYMENT. Sublessor covenants and agreed with
Sublessee that upon Sublessee paying the Base Rent and all other amounts due
and payable under this Sublease and observing and performing the terms,
covenants and conditions on Sublessee's part to be observed and performed under
this Sublease, Sublessor shall not do or cause to be done any act (whether of
omission or commission) which would interfere with Sublessee's right peaceably
and quietly to enjoy the Subleased Premises hereby dismissed.
23. PARKING. Sublessor agrees to provide Sublessee with exclusive
assigned parking spaces at the ratio of one parking space per 1,000 square feet
of rentable area contained in the Subleased Premises from time to time, on the
parking lot of the Building, for the term of this Sublease, or any renewal
thereof, without charge, as agreed upon by Sublessor and Sublessee, with
one-half of said spaces being covered and one-half uncovered. Sublessor and
Sublessee agree that, at such time as the Subleased Premises consist of
Sublessor's entire first floor space in the Building, the number of parking
spaces which Sublessor is obligated to provide hereunder shall consist of five
uncovered spaces and four covered spaces.
24. GENERAL PROVISIONS.
(a) The waiver by either party hereto of a breach of any
covenant, obligation or condition set forth herein to be performed or observed
by the other party hereto shall not be deemed to be a waiver of any subsequent
breach of the same or of any other covenant, obligation or condition of this
Sublease to be performed or observed by such party.
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(b) This Sublease shall be governed by and construed in
accordance with the laws of the State of Illinois.
(c) If any term, covenant or condition of this Sublease
or the application thereof to any person or circumstance shall be held to be or
rendered invalid, unenforceable or illegal, then such term, covenant or
condition shall be considered separate and severable from the remainder of this
Sublease, shall not affect, impair or invalidate the remainder of this
Sublease, and shall continue to be applicable to and enforceable to the fullest
extent permitted by law against any person or circumstances other than those as
to which it has been held or rendered invalid, unenforceable or illegal.
(d) This Sublease may be executed in one or more
counterparts, each of which shall constitute an original but all of which
together shall constitute one and the same instrument.
(e) This Sublease sets forth all the covenants, promises,
agreements, conditions or understandings between the parties hereto concerning
the Subleased Premises and the subject matter of this Sublease. No alteration,
amendment or change of, or addition to this Sublease shall be binding upon the
parties hereto unless in writing and signed by Sublessor and Sublessee.
(f) The captions and paragraph numbers appearing in this
Sublease are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or intent of any of the provisions hereof
nor in any way affect this Sublease.
(g) The words "hereof," "herein," "hereunder" and similar
expressions used in any provision of this Sublease relate to the whole of this
Sublease and not to such provision alone, unless otherwise expressly provided,
and whenever the singular number of a gender is used herein the same shall be
construed as including the plural and the masculine, feminine and neuter
respectively where the fact or context so requires.
(h) Time is of the essence of this Sublease and of every
part hereof.
(i) Each party to this Sublease represents and warrants
to the other party hereto that the execution, delivery and performance of this
Sublease by the representing and warranting party has been authorized by all
necessary corporate action of such party and that the officer or officers
executing this Sublease on behalf of such party have full power and authority
to do so and to bind such party hereto.
(j) Sublessor represents and warrants that as of the date
hereof:
(i) the Master Lease is un-modified (except as
set forth in Exhibit A hereto) and in full force and effect;
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17
for the calendar year 1997, which estimate on a square foot of Net Rentable
Area basis shall be the Expense Stop as defined in the Lease for calculation
of Basic Cost Increase Adjustment beginning with the Base Rental payment
prior to June 1, 1997. The Base Rental Schedule attached to the Original Lease
as amended by the First Amendment and the Second Amendment is further amended
to provide as follows:
BASE RENTAL SCHEDULE
--------------------
Month Monthly Base Rental before adjustment
----- -------------------------------------
October,1994,through
August, 1995 (eleven equal
monthly installments) $ 2,480.50
September, 1995, through
May, 1996 (nine equal
monthly installments) 3,757.40
June, 1996, through
May, 1997 (twelve equal
monthly installments) 4,338.12
June, 1997, through
May, 1999 (twenty-four equal
monthly installments) 9,561.14
June, 1999, through
May, 2002 (thirty-six equal
monthly installments) 10,142.00
June, 2002, through
May, 2004 (twenty-four equal
monthly installments) 11,064.00
TOTAL BASE RENTAL BEFORE ADJUSTMENT $973,274.90
-3-
18
(ii) Sublessor has no knowledge that Master
Landlord is in default under the Master Lease;
(iii) Sublessor is the owner of the entire Tenant's
interest under the Master Lease, subject to no claim, lien, charge or
encumbrance;
(iv) Sublessor has paid all Base Rent, Rent
Adjustments and Rent Adjustment Deposits due and owing under the
Master Lease through October 31, 1996;
(v) Sublessor has received no notice, and has no
knowledge of, any default by Sublessor under the Master Lease and to
the knowledge of Sublessor no event has occurred which through the
passage of time or otherwise would result in a default by Sublessor
under the Master Leases or, to the knowledge of Sublessor, would
result in a default by Master Landlord under the Master Lease;
(vi) Except with respect to the consent of Master
Landlord required under the Master Lease, Sublessor has full right and
authority to sublet the Subleased Premises to Sublessee and to enter
into this Sublease;
(vii) To Sublessor's best actual knowledge the
Subleased Premises are free of asbestos containing materials; and
(viii) Sublessor has received no notice of any
violations of the Americans with Disabilities Act ("ADA") with respect
to the Subleased Premises, and to the best of Sublessor's actual
knowledge, the Subleased Premises are in compliance with the ADA.
As used in this subparagraph 24(j), references to Sublessor's
knowledge and phrases of similar import shall mean and be limited to the actual
knowledge, without investigation, of Xxxxxxx X. Xxxxxx, Sublessor's Executive
Vice President.
(k) The warranties and representations contained in subparagraphs
(j) (i) through (x) above shall be effective as of the Commencement Date and
the Space B Commencement Date as if such representations and warranties were
made on said Commencement Date and Space B Commencement Date.
(l) In the event this Sublease, and Sublessee's right of
possession under this Sublease, are terminated by reason of a termination of
the Master Lease (other than a termination of the Master Lease resulting from a
default by Sublessee in its observance or compliance with the terms of the
Master Lease as they apply to the Subleased Premises), all future rental and
other obligations of Sublessee under this Sublease shall terminate, except to
the extent of obligations which expressly survive termination pursuant to the
terms of this Sublease or the Master Lease, to the extent incorporated herein.
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IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Sublease as of the day and year first above written.
SUBLESSOR:
GIS Information Systems,
Inc., an Illinois corporation
By: /s/ [Signature]
-------------------------
Its:
-----------------------
SUBLESSEE:
SPR Chicago, Inc.
an Illinois corporation
By: /s/ [Signature]
-------------------------
Its:
------------------------
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EXHIBIT A
Master Lease
21
EXHIBIT B
Drawing of Subleased Premises
22
LEASE
Between
GIS INFORMATION SYSTEMS, INC.
Tenant
and
LASALLE NATIONAL BANK, NOT PERSONALLY
BUT AS TRUSTEE U/T/A #107194, AND
000 XXXXXXXX XXXXX REIP
for
000 Xxxxxxxx Xxxxx Xxx Xxxxx, Xxxxxxxx
Building
23
TABLE OF CONTENTS
PAGE
1. TERM.............................................................................. 1
2. POSSESSION........................................................................ 1
3. BASE RENT......................................................................... 1
4. ADDITIONAL RENT................................................................... 2
A. Definitions................................................................... 2
B. Expense Adjustment............................................................ 2
C. Adjustment for Services Not Rendered by Landlord.............................. 3
D. Consumer Price Index Adjustment............................................... 3
5. USE OF PREMISES................................................................... 4
6. CONDITION OF PREMISES............................................................. 4
7. SERVICES.......................................................................... 4
A. List of Services.............................................................. 4
B. Billing for Electricity....................................................... 4
C. Interruption of Services...................................................... 5
D. Charges for Services.......................................................... 5
8. REPAIRS........................................................................... 5
9. ADDITIONS AND ALTERATIONS......................................................... 5
10. COVENANT AGAINST LIENS............................................................ 5
11. INSURANCE......................................................................... 6
A. Waiver of Subrogation......................................................... 6
B. Coverage...................................................................... 6
C. Avoid Action Increasing Rates................................................. 6
12. FIRE OR CASUALTY.................................................................. 6
13. WAIVER OF CLAIMS - IDEMNIFICATION................................................. 7
14. NONWAIVER......................................................................... 7
15. CONDEMNATION...................................................................... 7
16. ASSIGNMENT AND SUBLETTING......................................................... 7
17. SURRENDER OF POSSESSION........................................................... 8
18. HOLDING OVER...................................................................... 8
19. ESTOPPEL CERTIFICATE.............................................................. 9
20. SUBORDINATION..................................................................... 9
21. CERTAIN RIGHTS RESERVED BY LANDLORD............................................... 9
22. RULES AND REGULATIONS............................................................. 10
23. LANDLORD'S REMEDIES............................................................... 10
24. EXPENSES OF ENFORCEMENT........................................................... 10
25. COVENANT OF QUIET ENJOYMENT....................................................... 11
26. SECURITY DEPOSIT.................................................................. 11
27. REAL ESTATE BROKER................................................................ 11
28. MISCELLANEOUS..................................................................... 11
A. Rights Cumulative............................................................. 11
B. Interest...................................................................... 11
C. Terms......................................................................... 12
D. Binding Effect................................................................ 12
E. Lease Contains All Terms...................................................... 12
F. Delivery For Examination...................................................... 12
G. No Air Rights................................................................. 12
H. Modification of Lease......................................................... 12
I. Substitution of Other Premises................................................ 12
J. Transfer of Landlord's Interest............................................... 12
K. Landlord's Title.............................................................. 12
24
PAGE
L. Prohibition Against Recording................................................. 12
M. Captions...................................................................... 00
X. Xxxxxxxxx and Conditions...................................................... 12
O. Only Landlord/Tenant Relationship............................................. 12
P. Application of Payments....................................................... 13
Q. Definition of "Landlord"...................................................... 13
29. NOTICES........................................................................... 13
30. LIMITATION ON LANDLORD'S LIABILITY................................................ 13
Exhibit A -- Plan of Premises
Exhibit B -- Work Letter
Attachment A -- To Work Letter
Exhibit C -- Estoppel Statement
Exhibit D -- Rules & Regulations
Exhibit E -- Parking Plan
Exhibit F -- Air Conditioning Specifications
Exhibit G -- Memorandum for Recording
Exhibit A-A -- Contract of Purchase and Sale
Exhibit A-B -- Plans and Drawings, Initial Computer Space
Exhibit A-C -- Xxxxxxx Unit Costs
Exhibit A-D -- Plans and Drawings, Initial Office Space
25
000 XXXXXXXX XXXXX
XXX XXXXX, XXXXXXXX
AGREEMENT OF LEASE made as of this 10th day of June, 1987 (Hereinafter
referred to as the "Lease") between LaSalle National Bank Co., not personally,
but as trustee U/T/A #107194 and 000 Xxxxxxxx Xxxxx REIP, an Illinois limited
partnership, a beneficiary of said trust, jointly and severally referred to as
"Landlord", GIS Information Systems, Inc., an Illinois corporation whose present
address is 000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (hereinafter referred
to as "Tenant"):
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts, the premises
(hereinafter referred to as the "Premises") designated on the plan attached
hereto as Exhibit A and commonly described as approximately 4513 square feet of
rentable area of office space (hereinafter "Initial Office Space") and
approximately 441 square feet of rentable area of computer area (hereinafter
"Initial Computer Space"), both on the second floor. In the building known as
000 Xxxxxxxx Xxxxx (thereinafter referred to as the "Building"), all in the
(Village) of (Oak Brook, hereinafter referred to, together with all present and
future easements, additions, improvements and other rights appurtenant thereto,
as the "Land"), subject to the covenants, terms, provisions and conditions of
this Lease.
In consideration thereof, Landlord and Tenant covenant and agree as
follows:
1. TERM.
The term of this Lease (hereinafter referred to as the "Term") shall be for
fifteen (15) years and no months commencing on the 1st day of September 1987
(hereinafter referred to as the "Commencement Date") and ending on the 31st day
of August 2002 (hereinafter referred to as the "termination Date"), unless
sooner terminated as provided herein.
2. POSSESSION.
(a) In the event the Premises shall not be completed and ready for
occupancy on the Commencement Date or in the event Landlord is unable to deliver
possession on such date by reason of the holding over or retention of possession
by any tenant or occupant, this Lease shall nevertheless continue in force and
effect, but Rent (as hereinafter defined) shall xxxxx until the Premises are
ready for occupancy or until the Landlord is able to deliver possession, as the
case may be, and Landlord shall have no other liability whatsoever on account
hereof; provided, however, there shall be no abatement of Rent if the Premises
are not ready for occupancy because of the failure to complete the installation
of special equipment, fixtures or materials ordered by Tenant, or because of any
delays resulting from Tenant's failure to promptly submit plans in accordance
with the Work Letter attached hereto as Exhibit B or resulting from changes or
additions to Tenant's plans after the initial submission thereof if changes
during construction do, in fact, cause a delay or impede construction. The
Premises shall not be deemed incomplete or not ready for occupancy if only
insubstantial details of construction, decoration or mechanical adjustments
remain to be done. The determination of Landlord's architect or interior space
planner for the Building shall be final or conclusive on Tenant as to whether
the Premises are completed and ready for occupancy, subject to punchlists or
latent defects, that Tenants shall have the right to engage its own architect
and in case of a dispute.
(b) If Tenant shall take possession of the Premises or any part thereof
prior to the Commencement Date; all of the covenants and conditions of this
Lease shall be binding upon the parties hereto with respect to such whole or
part of the Premises as if the Commencement Date had been fixed as the date when
Tenant took possession of such whole or part of the Premises.
(c) Under no circumstances shall the occurrence of any of the events
described in this Paragraph 2 be deemed to accelerate or defer the Termination
Date.
(d) Notwithstanding the contents of this Section 2., Tenant shall have the
right, immediately after execution of this Lease by both Landlord and Tenant,
and prior to the Commencement Date, to take possession of its Initial Computer
Space. Landlord also agrees to commence demolition in the Initial Office Space
upon execution of this Lease by Landlord and Tenant and to use its best efforts
to complete
2
26
construction in said area by July 15, 1987, as extended by any delay caused by
Tenant. If Landlord fails to complete the required demolition and reconstruction
by that date, Landlord agrees to pay Tenant the sum of $10,000.00 as penalty
therefor. Landlord will continue said construction to its completion, in any
case.
Rent shall not be payable or owed by Tenant for areas so occupied, but
Additional Rent, as hereinafter defined, shall be owed and payable for said
areas, for the period of beginning with the date of occupancy through August 31,
1987, for Landlord-supplied Building services provided to Tenant, including
electricity, after-hours heating, ventilating, and air-conditioning (pursuant to
Section 7.A.(i) of this Lease), janitor services, if utilized, and additional
security required by Tenant and beyond the scope of security otherwise provided
the Building by Landlord.
If the additional chiller and associated air conditioning installation
described in Section 7.A.(i) are not completed by July 15, 1987, Landlord
nevertheless covenants and agrees that it will provide for that interim period
air conditioning and ventilation from the existing Building system for the
Initial Office Space at a comfort level commensurate with that described in
Section 7.A.(i).
3. BASE RENT.
Tenant shall pay to LaSalle Mortgage & Realty Co., Inc. Landlord's agent at
0000 X. 00xx Xxxxxx, Xxx Xxxxx, Xxxxxxxx, or at such other place as Landlord may
from time to time designate in writing, in coin or currency which, at the time
of payment, is legal tender for private or public debts in the United States of
America, rent at the annual rate of
(See Addendum A-5.) DOLLARS
($
------------------) per annum (hereinafter referred to as the "Base Rent") in
equal monthly installments of
(See Addendum A-5.) DOLLARS
the opinion of Tenant's architect will prevail as to whether Premises are
completed and ready for occupancy, subject to punchlists or latent defects, as
to the Initial Office Space only, and as to the storage room in the Initial
Computer Space.
($
------------------) each in advance on or before the first day of each and every
month during the Term, without any set-off or deduction whatsoever, except that
Tenant shall pay the first full monthly installment at the time of execution of
this Lease, which installment shall be applied to the Base Rent for the
twentieth (20th) month of the Lease Term. If the Term commences other than on
the first day of a month or ends other than on the last day of the month, the
Rent for such month shall be prorated. The prorated Rent for the portion of the
month in which the Term commences shall be paid on the first day of the first
full-month during the Term.
4. ADDITIONAL RENT.
In addition to paying the Base Rent specified in Section 3 hereof, Tenant
shall pay as "Additional Rent" the amounts determined as hereinafter set forth.
The Base Rent and the Additional Rent are sometimes herein collectively referred
to as the "Rent". All amounts due under this Section as Additional Rent shall be
payable for the same periods and in the same manner, time and place as the Base
Rent. Without limitation on other obligations of Tenant which shall survive the
expiration of the Term, the obligations of Tenant to pay the Additional Rent
provided for in this Section 4 shall survive the expiration of the Term. For any
partial Calendar Year, Tenant shall be obligated to pay only a pro rata share of
the Additional Rent, based on the number of the days of the Term falling within
such Calendar Year.
A. DEFINITIONS. As used in this Section 4, the terms:
(i) "Calendar Year" shall mean each calendar year in which any part of the
Term falls, through and including the year in which the Term expires:
(ii) "Tenant's Proportionate Share" shall mean 25.245%, being the
percentage calculated by dividing 63,196 (being the total rentable area of the
Building) into the rentable area contained in the Premises, rentable area to be
determined by Landlord on a uniform basis for the tenants of the Building.
Landlord certifies that the rentable area of the Building and the Premises are
accurate as stated.
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(iii) "Taxes" shall mean all real estate taxes and assessments, special or
otherwise, levied or assessed upon or with respect to the Land and/or Building
and ad valorem taxes for any personal property used in connection therewith.
Should the State of Illinois, or any political subdivision thereof, or any other
governmental authority having jurisdiction over the Land and/or the Building,
(a) impose a tax, assessment, charge or fee, or increase a then existing, tax,
assessment, charge or fee, which Landlord shall be required to pay, either by
way of substitution for such real estate taxes and ad valorem personal property
taxes, or in addition to such real estate taxes and ad valorem personal property
taxes, or (b) impose an income or franchise tax or a tax on rents in
substitution for or as a supplement to a tax levied against the Land and/or the
Building and/or the personal property used in connection with the Land or
Building, all such taxes, assessments, fees or charges (hereinafter defined as
"in lieu taxes") shall be deemed to constitute Taxes hereunder. "Taxes" shall
also include all reasonable fees and costs incurred by Landlord in seeking to
obtain a reduction of, or a limit on the increase in, any Taxes, regardless of
whether any reduction or limitation is obtained. Except as hereinabove provided
with regard to "in lieu taxes". Taxes shall not include any inheritance, estate,
succession, transfer, gift, franchise, net income or capital stock tax; any
interest or penalties owed or paid by Landlord by reason of late payment of
Taxes; and
(iv) "Operating Expenses" shall mean all expenses, costs and disbursements
(other than Taxes) of every kind and nature (determined for the applicable
Calendar Year on an accrual basis) paid or incurred by Landlord or Landlord's
beneficiaries in connection with the ownership, management, operation and repair
of the Land and Building, except the following:
(I) Costs of alterations of any tenant's premises;
(II) Principal or interest payments on loans secured by mortgages or trust
deeds on the Building and/or on the Land;
(III) Costs of capital improvements, except that Operating Expenses shall
include (a) the cost during the Term, as reasonably amortized by Landlord in
accordance with sound management and accounting principles with interest at the
rate of 10% on the unamortized amount, of any capital improvement completed
after the Base Year which reduces any component cost included within Operating
Expenses; and (b) the cost of any capital improvements which are necessary to
keep the Land and Building in compliance with all governmental rules and
regulations applicable from time to time thereto; and
(IV) Real estate brokers' leasing commissions.
(V) Legal fees incurred by Landlord in connection with negotiating or
enforcing leases in the Building.
(VI) Management fees in excess of 6% of gross revenue received by Landlord
from the Building's tenants.
(VII) Expenses or costs reimbursed by insurance policies of Landlord or any
tenant.
(VIII) Costs of special services rendered a tenant in the Building that are
not generally rendered to Tenant herein.
(IX) Landlord's costs associated with leasing and marketing space in the
Building, including but not limited to architectural and engineering fees so
incurred.
(X) Salaries of all employees for this Building over the level of building
manager, which Building Manager's salary is included in management fees.
Landlord further agrees that any contract for materials or services for the
Building entered into with any person or entity affiliated directly or
indirectly with Landlord shall provide for costs and/or compensation at
reasonably prevailing costs for similar materials or services in the Oak Brook
market.
B. EXPENSE ADJUSTMENT. Tenant shall pay to Landlord as Rent, in addition
to the Base Rent required by Section 3 hereof, an amount to Tenant's
Proportionate Share of the total of Taxes paid during each Calendar Year and
Operating Expenses incurred with respect to each Calendar Year said amounts
shall be paid in-monthly installments, in an amount estimated from time to time
by Landlord but not to exceed twice per Calendar Year, and communicated by
written notice to Tenant. Landlord shall cause to be kept books and records
showing Operating Expenses and Taxes in accordance with an appropriate system of
accounts and
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accounting practices consistently maintained. As promptly as practicable
following the close of each Calendar Year. Landlord shall cause a firm of
independent public accountants to review such books and records (and to do such
other work as may be necessary to enable such firm to give the certificate
hereinafter required) and to deliver to Landlord its certificate specifying the
amount of Operating Expenses and Taxes for such Calendar Year for the Building.
After receipt of such certificate, Landlord shall cause the amount of the total
of taxes and operating expenses for such calendar year to be computed based on
Operating Expenses and Taxes for such Calendar Year for the Building as
specified in such firm's certificate and Landlord shall deliver to Tenant a
statement of such amount and Tenant shall pay any deficiency to Landlord as
shown by such statement within thirty (30) days after receipt of such statement.
The certificate of such independent accounting firm as to the amount of
Operating Expenses and Taxes for such Calendar Year for the Building shall
constitute a determination which is final and conclusive on Tenant. If the total
of the estimated monthly installments paid by Tenant during any Calendar Year
exceeds the actual Expenses Adjustment Amount due from Tenant for such Calendar
Year, at Landlord's option, such excess shall be either credited against
payments next due hereunder or refunded by Landlord, provided Tenant is not then
in default hereunder. The amount of any refund of Taxes received by Landlord
shall be credited against Taxes for the year in which such refund is received.
In determining the amount of Taxes for any year, the amount of special
assessments to be included shall be limited to the amount of the installment
(plus any interest payable thereon) of such special assessment required to be
paid during such year if the Landlord had elected to have such special
assessment paid over the maximum period of time permitted by law. All references
to Taxes "for" a particular year shall be deemed to refer to Taxes paid during
such year without regard to when such Taxes are assessed or levied.
Notwithstanding the contents of the above paragraph, Tenant shall have the right
to pay its Expenses Adjustment Amount under protest and cause an audit of
Landlord's books and records to be conducted by Tenant's certified public
accountant at its own expenses. If the result of that audit shows a variance
exceeding 3% from the results of Landlord's certificate, Landlord shall pay the
reasonable cost of Tenant's audit and refund Tenant's share of the variance,
together with interest at the then-current prime rate as published and utilized
by First National Bank, Chicago, plus two (2) per cent.
5. USE OF PREMISES.
Tenant shall continuously and without interruption use and occupy the
entire Premises as an office for the following type of business: and for no
other purpose: executive and general offices and all legal uses incidental
thereto, which may include computer operations.
Landlord acknowledges and agrees that Tenant is in the data processing
business and that nothing herein or in the Rules and Regulations, now or during
the Lease Term, shall interfere with or impede Tenant's use of the Premises for
that purpose.
6. CONDITIONS OF PREMISES.
Subject to a punchlist and to latent defects, the Tenant's taking
possession of any portion of the Premises shall be conclusive evidence that such
portion of the Premises was in good order and satisfactory condition when the
Tenant took possession, except as to latent defects, excluding items of damage
caused by Tenant or its agents, independent contractors or suppliers. No promise
of the Landlord to alter, remodel or improve the Premises or the Building and no
representation by Landlord or its agents respecting the condition of the
Premises or the Building have been made to Tenant or relied upon by Tenant other
than as may be contained in this Lease or in any written amendment hereto signed
by Landlord and Tenant. Landlord agrees to extend to Tenant any manufacturer's
warranties it has relative to the equipment or installation contained in the
Premises.
7. SERVICES.
A. LIST OF SERVICES.
Landlord shall provide the following services on all days during the Term,
except Sundays and holidays, unless otherwise stated:
(i) Heating and air conditioning when necessary for normal comfort in the
Premises, from Monday through Friday, during the period from 8 a.m. to 6 p.m.
and, on Saturday, during the period from 8 a.m. to
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1 p.m. Tenant will pay for all heating and air conditioning requested and
furnished prior to or following such hours at rates to be established from time
to time by Landlord. (Subject to all governmental rules, regulations and
guidelines applicable thereto). Notwithstanding the contents of this Section
7.A.(i), heat shall be made available to Tenant by Landlord, at all hours and
during the entire Lease Term on Tenant's request, and at after-hour rates
consistent with the provisions of page 4-a.
Landlord will install at its own expense a chiller, together with necessary
fan and control equipment therefor, and any sheet metal duct work and electrical
connections necessary to effectuate the operation thereof, capable of providing
air conditioning for up to 10,000 square feet of rentable area of office space,
but initially with a capacity to provide air conditioning for 4,513 square feet
of rentable area of office space.
Landlord and Tenant agree to cooperate to determine the most cost-effective
method to provide Tenant with its HVAC requirements. After and before the hours
stated in Section 7.A.(i), Landlord agrees to provide Tenant with heat, as
required, on the second floor of the Building, at Landlord's cost plus 5%;
Tenant may alternatively engage its own engineer to determine a more
cost-effective method of obtaining heat.
Landlord's specifications for providing air conditioning are contained in
Exhibit F to Lease.
(ii) Adequate electrical wiring and facilities for standard building
lighting fixtures provided by Landlord and for Tenant's incidental uses. Tenant
shall bear the cost of replacement of bulbs and ballasts for lighting fixtures.
In respect of such incidental uses, adequate electrical wiring and facilities
will be furnished in the Premises by Landlord, provided that (a) the connected
electrical load of the incidental use equipment does not exceed an average of
one watt per square foot of the Premises; (b) the electricity so furnished for
incidental uses will be at a nominal 120 volts and no electrical circuit for the
supply of such incidental use will have a current capacity exceeding 15 amperes;
and (c) such electricity will be used only for equipment and accessories normal
to office usage. If Tenant's requirements for electricity for incidental uses
are in excess of those set forth in the preceding sentence, the Landlord
reserves the right to require Tenant to install the conduit wiring and other
equipment necessary to supply electricity for such excess incidental use
requirements at the Tenant's expense by arrangement with Commonwealth Edison
Company or another approved local utility.
(iii) Village water from the regular Building outlets for drinking,
lavatory and toilet purposes.
(iv) Janitor services at Tenant's request; Monday through Friday in and
about the Premises, comparable to the standard janitor service furnished by
other first-class office buildings, unless Tenant contracts directly for such
services on prior reasonable notice to Landlord.
(v) Window washing of all inside and outside windows in the Premises at
intervals to be determined by Landlord, but in no event fewer than three (3)
times per year.
(vi) Adequate operatorless passenger and freight elevator service at all
times.
B. BILLING FOR ELECTRICITY.
1. SEPARATE METERING. Tenant shall pay for the use of all electrical
service to the Premises (other than the electrical service necessary for
Landlord to fulfill its obligation to provide heating and air conditioning as
provided in Paragraph 7A(i) hereof). Provided that Landlord can make
arrangements satisfactory to Landlord and Tenant with the utility company
supplying electricity to the Premises, Tenant shall be billed directly by such
utility and Tenant agrees to pay each xxxx promptly in accordance with its
terms. In the event that for any reason Tenant cannot be billed directly,
Landlord shall forward each xxxx with respect to the Premises and Tenant shall
pay it promptly in accordance with its terms.
2. LACK OF SEPARATE METERING. If Tenant cannot be separately metered for
any reason, Tenant shall pay Landlord as additional Rent, in monthly
installments at the time prescribed for monthly installments of Rent, an annual
amount, as estimated by Landlord from time to time, which Tenant would pay for
such electricity if the same were separately metered to the Premises by the
local electric utility company and billed to Tenant at such utility company's
current rates.
3. ALLOCATION OF ELECTRICITY IN INITIAL COMPUTER SPACE. Landlord agrees to
cause to be installed a separate circuit and electric meter, for Computer
Sciences Corporation's computer area, so that upon completion of said work (1)
electric usage in Tenant's Initial Computer Space will be accurately measured
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and (2) Tenant will pay thereafter only for electricity metered and used in its
own Initial Computer Space. The cost of the separate circuit and meter and their
installation shall be allocated as between Landlord and Tenant as found in
Section A-8. of the Addendum. Nothing contained in this Section 7.B.3. shall
relieve Tenant from the obligation to pay for its electric usage in the Initial
Office Space or in spaces later leased from Landlord.
Tenant agrees that Landlord shall not be liable in damages, by abatement of
Rent or otherwise, for failure to furnish or delay in furnishing any service, or
for any diminution in the quality or quantity thereof, when such failure or
delay or diminution is occasioned, in whose or in part, by repairs, renewals or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Building after reasonable
effort so to do, by any accident or casualty whatsoever, by the act or default
of Tenant or other parties, or by any other cause beyond Landlord's reasonable
control; and such failures or delays or diminution shall never be deemed to
constitute an eviction or disturbance of the Tenant's use and possession of the
Premises or relieve the Tenant from paying Rent or performing any of its
obligations under this Lease. Landlord shall be diligent in its efforts to cure
such failure or delay or diminution.
Notwithstanding the contents of Section 7.C., Rent shall xxxxx if heat is
not provided to the Premises of five (5) successive days (beginning on the sixth
day and only until heat is restored). A similar formula shall be applicable if a
water pipe or cooling tower bursts, causing substantial disruption to Tenant's
business, and is not cured and repaired within five (5) days.
Notwithstanding the contents of Section 7.C., if Landlord's negligence is
the cause of the interruption of the providing of electricity to Tenant,
Tenant's Rent shall xxxxx if electricity is not restored within five (5) days;
this covenant shall not be subject to interruption of electricity, due to force
majeure. If the electricity fails through no fault of Landlord, and the UPS is
activated and then fails, Tenant's Rent shall not xxxxx so long as the original
interruption of electricity was not due to Landlord's negligence. Landlord will
provide Tenant with UPS "spares" in the Premises and in the Building; Tenant
shall have the responsibility to maintain the UPS and to recharge them, as
necessary.
Notwithstanding the contents of Section 7.C., in any case of interruption
of services, Tenant shall have the right to self-help and to offset against Rent
the reasonable cost of that self-help.
D. CHARGES FOR SERVICES.
Charges for any services for which Tenant is required to pay from time to
time hereunder including but not limited to hoisting services (except that there
shall be no charge for hoisting services related to Tenant's initial move-in),
or after hours heating or air conditioning shall be due and payable at the same
time as the installment of Rent with which they are billed, or, if billed
separately, shall be due and payable within ten (10) days after such billing. If
Tenant shall fail to make payment for any such services, Landlord may, with
notice to Tenant, discontinue any or all of such services and such
discontinuance shall not be deemed to constitute an eviction or disturbance of
the Tenant's use and possession of the Premises or relieve Tenant from paying
Rent or performing any of its other obligations under this Lease.
8. REPAIRS.
Tenant will, at Tenant's own expense, keep the Premises (except for damage
caused by the negligence of Landlord, its employees, agents, contractors or
invitees), in good order, repair and condition at all times during the Term, and
Tenant shall promptly and adequately repair all damage to the Premises and
replace or repair all damaged or broken fixtures and appurtenances, under the
supervision and subject to the approval of the Landlord, and within any
reasonable period of time specified by the Landlord. If the Tenant does not do
so, Landlord may, but need not, make such repairs and replacements, and Tenant
shall pay Landlord the reasonable cost thereof, including a percentage of the
cost thereof (to be uniformly established for the Building) sufficient to
reimburse Landlord (at a cost not to exceed 10% of the repairs and replacements)
for all overhead, general conditions, fees and other costs or expenses arising
from Landlord's involvement with such repairs and replacements forthwith upon
being billed for same. Landlord may, but shall not be required to, enter the
Premises at all reasonable times to make such repairs, alterations, improvements
and additions to the Premises or to the Building or to any equipment located in
the Building as Landlord shall desire or deem necessary or as Landlord may be
required to do by governmental authority or court order or decree.
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Notwithstanding the contents of this Section, Landlord shall be solely
responsible for repairs associated with the Building's structural and
weight-bearing components and glass, unless damage to said items are caused by
Tenant's negligence. Landlord agrees to provide reasonable notice of repairs it
is conducting and to attempt to minimize the disturbance to Tenant's business
resulting thereby.
9. ADDITIONS AND ALTERATIONS.
Tenant shall not, without the prior written consent not to be unreasonably
withheld or delayed, of Landlord, make any alterations, improvements or
additions to the Premises. Landlord's refusal to give said consent shall be
conclusive. If Landlord consents to said alterations, improvements or additions,
it may impose such conditions with respect thereto as Landlord deems
appropriate, including, without limitation, requiring Tenant to furnish Landlord
with security for the payment of all costs to be incurred in connection with
such work, insurance against liabilities which may arise out of such work, and
plans and specifications plus permits necessary for such work. The work
necessary to make any alterations, improvements or additions to the Premises
shall be done at Tenant's expense by employees of or contractors hired by
Landlord except to the extent Landlord gives its prior written consent not to be
unreasonably withheld or delayed, to Tenant's hiring contractors. Tenant shall
promptly pay to Landlord or to Tenant's contractors, as the case may be, when
due, the cost of all such work and of all decorating required by reason thereof.
Tenant shall also pay to Landlord a percentage of the cost of such work (such
percentage not to exceed 10%) sufficient to reimburse Landlord for all overhead,
general conditions, fees and other costs and expenses arising from Landlord's
involvement with such work. Upon completion of such work Tenant shall deliver to
Landlord, if payment is made directly to contractors, evidence of payment,
contractors' affidavits and full and final waivers of all liens for labor,
services or materials. Tenant shall defend and hold Landlord and the Land and
Building harmless from all costs, damages, liens (unless Landlord is acting as
the general contractor) and expenses related to such work. All work done by
Tenant or its contractors pursuant to Sections 8 or 9 shall be done in a
first-class workmanlike manner using only good grades of materials and shall
comply with all insurance requirements and all applicable laws and ordinances
and rules and regulations of governmental departments or agencies.
All alterations, improvements and additions to the Premises, whether
temporary or permanent in character, made or paid for by Landlord or Tenant,
shall without compensation to Tenant become Landlord's property at the
termination of this Lease by lapse of time or otherwise and shall, be
relinquished to Landlord in good condition, ordinary wear excepted.
10. COVENANT AGAINST LIENS.
Tenant has no authority or power to cause or permit any lien or encumbrance
of any kind whatsoever, whether created by act of Tenant, operation of law or
otherwise, to attach to or be placed upon Landlord's title or interest in the
Land, Building or Premises, and any and all liens and encumbrances created by
Tenant shall attach to Tenant's interest only. Tenant covenants and agrees not
to suffer or permit any lien of mechanics or materialmen or others to be placed
against the Land, Building or the Premises with respect to work or services
claimed to have been performed for or materials claimed to have been furnished
to Tenant or the Premises, and, in case of any such lien attaching, Tenant
covenants and agrees to cause it to be immediately released and removed of
record.
In the event that such lien is not immediately released and removed,
Landlord, at its sole option, may take all action necessary to release and
remove such lien (without any duty to investigate the validity thereof) and
Tenant shall promptly upon notice reimburse Landlord for all sums, costs and
expenses (including reasonable attorneys' fees) incurred by Landlord in
connection with such lien. Notwithstanding the contents of the preceding
paragraph, Landlord shall give Tenant notice of any such lien and Tenant shall
have the right to bond over it in a reasonable period of time with a bond
reasonably satisfactory to Landlord.
11. INSURANCE.
A. WAIVER OF SUBROGATION.
Landlord and Tenant each hereby waive any and every claim for recovery from
the other for any and all loss of or damage to the Building or Premises or to
the contents thereof, which loss or damage is covered by valid and collectible
fire and extended coverage insurance policies, to the extent that such loss or
damage is
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recoverable under said insurance policies. Inasmuch as this mutual waiver will
preclude the assignment of any such claim by subrogation (or otherwise) to an
insurance company (or any other person), Landlord and Tenant each agree to give
to each insurance company which has issued, or in the future may issue, to it
policies of fire and extended coverage insurance, written notice of the terms of
this mutual waiver, and to have said insurance policies properly endorsed, if
necessary, to prevent the invalidation of said insurance coverage by reason of
said waiver. Landlord shall carry insurance providing full replacement coverage
of the Building at all times during this Lease and liability insurance for
common areas of the Building in limits of not less than $1,000,000 and with a
deductible under said policy or policies not greater than the deductible for
similar quality buildings in the OakBrook Market.
B. COVERAGE.
Tenant shall carry insurance during the entire Term insuring Tenant and
Landlord as their interests may appear with terms, coverages and in companies
satisfactory to Landlord, and with such reasonable increases in limits as
Landlord may from time to time request, but initially Tenant shall maintain the
following coverages in the following amounts;
(i) in case of personal injury to or death of any person or persons, not
less than $1,000,000 for each injury or death to a person and $3,000,000 for
each incident involving personal injury or death to persons, and, in case of
property damage, not less than $1,000,000 for any one occurrence; and
(ii) in case of fire, sprinkler leakage, malicious mischief, vandalism, and
other extended coverage perils, for the full insurance replacement value of all
additions, improvements and alterations to the Premises which are beyond the
"building standard" Tenant improvements provided by Landlord and of all office
furniture, trade fixtures, office equipment, merchandise and all other items of
Tenant's property on the Premises.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state that such
insurance coverage may not be changed or cancelled without at least ten days
prior written notice to Landlord and Tenant.
C. AVOID ACTION INCREASING RATES.
Tenant shall comply with all applicable laws and ordinances, all orders and
decrees of court and all requirements of other governmental authorities, and
shall not, directly or indirectly, make any use of the Premises which may
thereby be prohibited or be dangerous to person or property or which may
jeopardize any insurance coverage, or may increase the cost of insurance or
require additional insurance coverage. If by reason of the failure of Tenant to
comply with the provisions of this Section 11C, any insurance coverage is
jeopardized or insurance premiums are increased, Landlord shall have the option
to require Tenant to make immediate payment of the increased insurance premium.
12. FIRE OR CASUALTY.
Paragraph 8 hereof notwithstanding, if the Premises or the Building
(including machinery or equipment used in its operation) shall be damaged by
fire or other casualty and if such damage does not render all or a substantial
portion of the Premises or Building untenantable, then Landlord shall repair and
restore the same with reasonable promptness, subject to reasonable delays for
insurance adjustments and delays caused by matters beyond Landlord's reasonable
control. If any such damage renders all or a substantial portion of the Premises
or Building untenantable, Landlord shall have the right to terminate this Lease
as of the date of such damage (with appropriate prorations of Rent being made
for Tenant's possession subsequent to the date of such damage of those
tenantable portions of the Premises) upon giving written notice to the Tenant at
any time within sixty (60) days after the date of such damage. If any such
damage renders all or more than fifty percent (50%) of the Premises untenantable
Tenant shall also have the right to terminate this Lease as of the date of such
damage upon giving written notice to Landlord at any time within forty-five (45)
days after the date of such damage. Unless this Lease is terminated as provided
in the two preceding sentences and Landlord shall proceed with reasonable
promptness to repair and restore the Premises, subject to reasonable delays for
insurancee adjustments and delays caused by matters beyond Landlord's reasonable
control. Rent, however shall xxxxx on those portions of the Premises as are,
from time to time, untenantable as a result of such damage.
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Notwithstanding the contents of this paragraph, Landlord shall use its best
efforts and diligence to rebuild the Premises after any fire or casualty; if the
Building is damaged by fire or other casualty and Landlord chooses not to
rebuild, Landlord shall provide Tenant notice within 30 days of said fire or
casualty of Landlord's decision; if Landlord chooses to rebuild, it shall use
its best efforts and diligence to complete the restoration as quickly as
possible.
If said restoration is not completed within 180 days from date of
inception, Tenant shall have the right to terminate this Lease and all
obligations hereunder.
Tenant hereby acknowledges that Landlord is under no obligation to insure
Landlord's interest in the Premises or the Building, except as provided herein.
Notwithstanding anything to the contrary herein set forth, Landlord shall
have no duty pursuant to this Section 12 to repair or restore any portion of the
alterations, additions or improvements in the Premises or the decoration thereto
except to the extent that such alterations, additions, improvements and
decoration were provided by Landlord, at Landlord's cost, at the beginning of
the Term. If Tenant wants any other or additional repairs or restoration and if
Landlord consents thereto, the same shall be done at Tenant's expense subject to
all of the provisions of Section 8 hereof.
13. WAIVER OF CLAIMS -- INDEMNIFICATION.
To the extent not prohibited by law, and excluding the negligence of
Landlord, its employees, agents, servants, contractors, or invitees, Landlord
and its officers, agents, servants and employees shall not be liable for any
damage either to person or property or resulting from the loss of use thereof
sustained by Tenant or by other persons due to the Building or any part thereof
or any appurtenances thereof becoming out of repair, or due to the happening or
any accident or event in or about the Building, or due to any act or neglect of
any tenant or occupant of the Building or of any other person. This provision
shall apply particularly (but not exclusively) to damage caused by gas,
electricity, snow, frost, steam, sewage, sewer gas or odors, fire, water or by
the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures, and
windows, and shall apply without distinction as to the person whose act or
neglect was responsible for the damage and whether the damage was due to any of
the causes specifically enumerated above or to some other cause of an entirely
different kind. Tenant further agrees that all personal property upon the
Premises, or upon-loading docks, receiving and holding areas, or freight
elevators of the Building, shall be at the risk of Tenant only, and that
Landlord shall not be liable for any loss or damage thereto or theft thereof.
Without limitation of any other provisions thereof, Tenant agrees to defend,
protect, indemnify and save harmless Landlord from and against all liability to
third parties arising out of the acts of Tenant and its servants, agents,
employees, contractors, suppliers, workmen and invitees. This Section shall be
reciprocal in effect between Landlord and Tenant, and Landlord except the
trustee agrees to defend, protect, indemnify and save harmless Tenant from and
against all liability to third parties arising out of the acts of Landlord and
its servants, agents, employees, contractors, suppliers, workmen and invitees.
14. NONWAIVER.
No waiver of any provision of this Lease shall be implied by any failure of
Landlord to enforce any remedy on account of the violation of such provision,
even if such violation be continued or repeated subsequently, and no express
waiver shall affect any provision other than the one specified in such waiver
and that one only for the time and in the manner specifically stated. No receipt
of moneys by Landlord from Tenant after the termination of this Lease shall in
any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term or affect any notice given Tenant prior to the receipt of such moneys,
it being agreed that after the service of notice or the commencement of a suit
or after final judgment for possession of the Premises. Landlord may receive and
collect any Rent due, and the payment of said Rent shall not waive or affect
said notice, suit or judgment.
15. CONDEMNATION.
If the Land or the Building or any portion thereof shall be taken or
condemned by any competent authority for any public or quasi-public use or
purpose (a "taking"), or if the configuration of any street, alley, riverbank,
or bridge adjacent to the Building is changed by any competent authority and
such taking or change
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in configuration makes it necessary to remodel or reconstruct the Building.
Landlord shall have the right, exercisable at its sole discretion, to cancel
this Lease upon not less than ninety (90) days notice prior to the date of
cancellation designated in the notice. No money or other consideration shall be
payable by Landlord to Tenant for the right of cancellation and Tenant shall
have no right to share in the condemnation award or in any judgment for damages
caused by such taking or change in configuration. Tenant, however, shall have
the right to seek its own separate award in any such proceeding and for
improvements installed and paid for by it, so long as any such award does not
otherwise diminish Landlord's award.
16. ASSIGNMENT AND SUBLETTING.
a. Tenant shall not, without Landlord's prior written consent;
(i) assign, hypothecate, mortgage, encumber, or convey this Lease;
(ii) allow any transfer thereof or any lien upon Tenant's interest by
operation of law;
(iii) sublet the premises or any part thereof; or
(iv) permit the use or occupancy of the premises or any part thereof by
anyone other than Tenant.
b. If Tenant desires the consent of Landlord to an assignment of the entire
demised premises for the remaining term or subletting of all or a part of the
demised premises (the entire demised premises for the remaining term if an
assignment is desired or the portion of the demised premises if a sublet is
desired being hereinafter referred to as "Subject Premises"), Tenant shall
submit to Landlord;
(i) the proposed sublease or assignment (executed by Tenant and subtenant
or assignee), which is not to commence prior to the first day of the month
immediately following the month in which the thirtieth day following the
submission to Landlord occurs, and
(ii) sufficient information to permit Landlord to determine the
acceptability of the financial responsibility and character of subtenant or
assignee.
c. Landlord shall not unreasonably withhold its consent except that such
consent need not be granted if:
(i) in the reasonable judgment of Landlord the subtenant or assignee is of
a character or engaged in a business which is not in keeping with the standards
of Landlord for the Building;
(ii) in the reasonable judgment of Landlord the purposes for which the
subtenant or assignee intends to use the Subject Premises are not in keeping
with the standards of Landlord for the Building, it being understood that the
purposes for which subtenant or assignee intends to use the Subject Premises may
not be in violation of this Lease;
(iii) a subletting will result in there being more than two occupants per
floor within the demised premises, including Tenant and all subtenants;
(iv) the Subject Premises is not regular in shape with appropriate means of
ingress and egress and suitable for normal renting purposes;
(v) the subtenant or assignee is either a government (or subdivision or
agency thereof) or an occupant of the Building;
(vi) an assignment is desired and the Subject Premises are less than the
entire demised premises or less than the remaining term is being assigned;
(vii) Tenant is in default under this Lease.
(viii) Tenant has exercised its option to expand or renew under paragraphs
28 or 29.
d. If Landlord grants consent:
(i) the terms and conditions of this Lease, including among other things.
Tenant's liability for the Subject Premises shall in no way be deemed modified,
abrogated or amended;
(ii) Tenant shall pay Landlord $250.00 for each sublease or assignment
submitted as reimbursement to Landlord for expenses incurred, plus 50% of all
net profit ("net profit" being defined hereunder as gross profit less all costs
incurred or concessions granted, including but not limited to rent abatement,
alterations to
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Premises, commissions, and attorney fees. The dollar total of said costs and
concessions shall be fully amortized over the term of said sublease of
assignment, and "net profit" calculated after allowing for said amortization)
derived by Tenant in such sublease or assignment.
(iii) the consent shall not be deemed a consent to any further subletting
or assignments by either Tenant, subtenants or assignees.
e. Notwithstanding the contents of this Section, no notice need be given by
Tenant, nor consent obtained by Landlord, as to an assignment of the Lease to an
affiliate of Tenant, so long as guarantor herein (or its successor, guarantor,
possessing a net worth as much as, or greater than, guarantor herein) remains as
guarantor of the Lease. The same shall apply to a merger of Tenant with another
entity, so long as the guarantor herein shall continue as guarantor after such a
merger:
17. SURRENDER OF POSSESSION.
Upon the expiration of the Term or upon the termination of Tenant's right
of possession, whether by lapse of time or at the option of Landlord as herein
provided. Tenant shall forthwith surrender the Premises to Landlord in good
order, repair and condition, ordinary wear excepted, and shall, if Landlord so
requires, restore the Premises to the condition existing at the beginning of the
Term. Any interest of Tenant in the alterations, improvements, and additions to
the Premises (including without limitation all carpeting or floorcovering) made
or paid for by Landlord or Tenant shall without compensation to Tenant become
Landlord's property at the termination of this Lease by lapse of time or
otherwise and such alterations, improvements and additions shall be relinquished
to Landlord in good condition, ordinary wear excepted. At the termination of the
Term or of Tenant's right of possession Tenant agrees to remove the following
items of Tenant's property: office furniture, trade fixtures, office equipment
and all other items of Tenant's property on the Premises. Tenant shall pay to
Landlord upon demand the cost of repairing any damage to the Premises and to the
Building caused by any such removal. If Tenant shall fail or refuse to remove
any such property from the Premises, Tenant shall be conclusively presumed to
have abandoned the same, and title thereto shall thereupon pass to Landlord
without any cost either by set-off, credit, allowance or otherwise, and Landlord
may at its option accept the title to such property or at Tenant's expense may
(i) remove the same or any part in any manner that Landlord shall choose,
repairing any damage to the Premises caused by such removal, and (ii) store,
destroy or otherwise dispose of the same without incurring liability to Tenant
or any other person.
18. HOLDING OVER.
Tenant shall pay to Landlord an amount as Base Rent equal to 200% of the
Rent herein provided during each month or portion thereof for which Tenant shall
retain possession of the Premises or any part thereof after the termination of
the Term or of Tenant's right of possession, whether by lapse of time or
otherwise, and also shall pay all damages sustained by Landlord, whether direct
or consequential, on account thereof. The provisions of this Section 18 shall
not be deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law.
19. ESTOPPEL CERTIFICATE.
The Tenant agrees that, from time to time upon not less than ten days prior
request by Landlord, the Tenant, or Tenant's duly authorized representative
having knowledge of the following facts, will deliver to Landlord a statement in
writing certifying (i) that this Lease is unmodified and in full force and
effect (or if there have been modifications that the Lease as modified is in
full force and effect); (ii) the dates to which Rent and other charges have been
paid; (iii) that the Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail; and (iv) such further
matters as are set forth on the form of estoppel certificate attached hereto as
Exhibit C and made a part hereof, it being intended that any such statement may
be relied upon by any prospective purchaser or tenant of the Building, any
mortgagees or prospective mortgagees thereof, or any prospective assignee of any
mortgage thereof. Tenant shall execute and deliver whatever instruments may be
required for such purposes, and in the event Tenant fails so to do within twenty
(20) days after demand in writing. Tenant shall be considered in default under
this Lease.
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STANDARD MORTGAGEE PROTECTION CLAUSE
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by
Registered Mail, a copy of any Notice of Default served upon the Landlord,
provided that prior to such notice tenant has been notified, in writing, (by way
of Notice of Assignment of Rents and Leases, or otherwise) of the address of
such Mortgagees and/or Trust Deed Holders. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days, any Mortgagee and/or Trust Deed Holder has
commenced and is diligently pursuing the remedies necessary to cure such
default, (including but not limited to commencement of foreclosure proceedings,
if necessary to effect such cure) in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
20. SUBORDINATION.
This Lease is subject and subordinate to all present and future ground or
underlying leases of the Land and to the lien of any mortgages or trust deeds,
now and hereafter in force against the Land and Building, or either, and to all
renewals, extensions, modifications, consolidations and replacements thereof,
and to all advances made or hereafter to be made upon the security of such
mortgages or trust deeds, unless the holders of such mortgages or trust deeds,
or the lessors under such ground lease or underlying leases require in writing
that this Lease shall be superior thereto. Tenant shall at Landlord's request
execute such further instruments or assurances as Landlord may reasonably deem
necessary to evidence or confirm the subordination or superiority of this Lease
to any such mortgages, trust deeds, ground leases or underlying leases. Tenant
hereby irrevocably authorizes Landlord to execute and deliver in the name of
Tenant any such instrument or instruments if Tenant fails to do so, provided
that such shall in no way relieve Tenant from the obligation of executing such
instruments of subordination or superiority.
Tenant agrees to subordinate this Lease to future mortgagee(s) only if
Landlord provides Tenant with a non-disturbance and attornment agreement from
said mortgagee(s). Landlord agrees to submit this Lease, upon its completion,
but prior to execution, to the present mortgagee and to use its best efforts to
obtain from the mortgagee a non-disturbance and attornment agreement in favor of
Tenant. In the event Landlord is unable to obtain said agreement by July 10,
1987, Landlord agrees to provide Tenant, and Tenant agrees to accept from
Landlord an agreement (in form and substance acceptable to Tenant), whereby
LaSalle National Bank and Trust Company, not personally, but U/T/A #107194, 000
Xxxxxxxx Xxxxx REIP, and The Great-West Life Assurance Company of Winnipeg,
Canada, agree not to sell, convey, or transfer the Building, the real estate
upon which it is situated, the beneficial interest in said land trust, or any
portion thereof, the general partnership interest in the 000 Xxxxxxxx Xxxxx
REIP, or any portion of their interest or equity therein, prior to the time when
the present mortgage loan encumbering the Building is first due.
21. CERTAIN RIGHTS RESERVED BY LANDLORD.
Landlord shall have the following rights, each of which Landlord may
exercise without notice to Tenant and without liability to Tenant for damage or
injury to property, person or business on account of the exercise thereof, and
the exercise of any such rights shall not be deemed to constitute an eviction or
disturbance of Tenant's use or possession of the Premises and shall not give
rise to any claim for set-off or abatement of rent and any other claim:
(a) On 90 days' notice to change the Building's name or street address.
(b) To install, affix and maintain any and all signs on the exterior and on
the interior of the Building.
(c) On reasonable notice to Tenant and in a manner so as to minimize
disturbance to Tenant's business, to decorate or to make repairs, alterations,
additions, or improvements, whether structural or otherwise, in and about the
Building, or any part thereof, and for such purposes to enter upon the Premises,
and, during the continuance of any of said work, to temporarily close doors,
entryways, public space and corridors in the Building and to interrupt or
temporarily suspend services or use of facilities, all without affecting any of
Tenant's obligation hereunder, so long as the Premises are reasonably accessible
and usable. Landlord shall
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not be liable to Tenant, and Tenant shall not be entitled to any abatement or
adjustment of rent by reason of any such interruption or suspension.
(d) To furnish (2) door keys for doors in the Premises at the commencement
of the lease. To retain at all times, and to use in appropriate instances, keys
to all doors within and into the Premises. Tenant agrees to purchase only from
Landlord additional duplicate keys as required, to change no locks, and not to
affix locks on doors without the prior written consent of Landlord.
Notwithstanding the provisions for Landlord's access to Premises, Tenant
relieves and releases the Landlord of all responsibility arising out of theft,
robbery and pilferage, except for the negligence of Landlord, its employees,
agents, servants, contractors, and invitees. Upon the expiration of the Term or
of Lessee's right to possession, Tenant shall return all keys to Landlord and
shall disclose to Landlord the combination of any safes, cabinets or vaults left
in the Premises.
(e) To designate that window treatment shall be Building Standard venetian
blinds or curtains and to designate and approve, prior to installation, all
types of a additional window shades, blinds or draperies.
(f) To approve the weight, size and location of safes, vaults and other
heavy equipment and articles in and about the Premises and the Building (so as
not to exceed the legal live load per square foot designated by the structural
engineers for the building), and to require all such items and furniture and
similar items to be moved into or out of the Building and Premises only at such
times and in such manner as Landlord shall direct in writing. Tenant shall not
install or operate machinery or any mechanical devices of a nature not directly
related to Tenant's ordinary use of the Premises without the prior written
consent of Landlord. Movements of Tenant's property into or out of the Building
and within the Building are entirely at the risk and responsibility of Tenant
and Landlord reserves the right to require permits before allowing any property
to be moved into or out of the Building.
(g) To close the Building after regular working hours and on Saturdays,
Sundays and legal holidays subject, however, to Tenant's right to admittance to
the Premises under such regulations as Landlord may prescribe from time to time,
which may include but shall not be limited to, a requirement that persons
entering or leaving the Building identify themselves to a watchman by
registration or otherwise and establish their right to enter or leave the
Building. Such regulations may include, but shall not be limited to the
requiring of identification from Tenant's employees, agents, clients, customers,
invitees, visitors and guests.
(h) To establish controls for the purpose of regulating all property and
packages (both personal and otherwise) to be moved into or out of the Building
and Premises.
(i) To regulate delivery and service of supplies in order to insure the
cleanliness and security of the Premises and to avoid congestion of the loading
docks, receiving areas and freight elevators.
(j) To show the Premises to prospective tenants at reasonable hours during
the last twelve months of the Term and, if vacated or abandoned, to show the
Premises at any time and to prepare the Premises for the re-occupancy. Landlord
shall not, however, prepare the Premises for reoccupancy by another tenant
during the Term of this Lease.
(k) To erect, use and maintain pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Premises at reasonable locations.
(l) To enter the Premises at any reasonable time to inspect the Premises on
reasonable notice from Landlord (except in cases of emergency) and in a manner
so as to minimize the disturbance of Tenant's business.
(m) To modify or relinquish any and all easement rights provided such
modification or relinquishing will not materially interfere with Tenant's use.
22. RULES AND REGULATIONS.
Subject to Section 5. hereof as amended, Tenant agrees to observe the rules
and regulations for the Building attached hereto as Exhibit D and made a part
hereof. Landlord shall have the right from time to time to prescribe additional
rules and regulations which, in its judgment, may be desirable for the use,
entry, operation and management of the Premises and Building, each of which
rules and regulations and any amendments thereto shall become a part of this
Lease. Tenant shall comply with all such rules and regulations
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provided however that such rules and regulations shall not contradict or
abrogate any right or privilege herein expressly granted to Tenant. All such
rules and regulations shall be uniformly applied and consistently implemented
for all tenants in the Building.
23. LANDLORD'S REMEDIES.
If default shall be made in the payment of the Rent or any installment
thereof or in the payment of any other sum required to be paid by Tenant under
this Lease or under the terms of any other agreement between Landlord and Tenant
and such default shall continue for five (5) days after written notice to
Tenant, (but Tenant shall have five (5) days thereafter to cure), or if default
shall be made in the observance or performance of any of the other covenants or
conditions in this Lease which Tenant is required to observe and perform and
such default shall continue for thirty (30) days (or if such default cannot be
cured within 30 days, Tenant shall have such reasonable time thereafter to cure,
utilizing due diligence to do so.) after written notice to Tenant, or if a
default involves a hazardous condition and is not cured by Tenant immediately
upon written notice to Tenant, or if the interest of Tenant in this Lease shall
be levied on under execution or other legal process, or if any voluntary
petition in bankruptcy or for corporate reorganization or any similar relief
shall be filed by Tenant, or if any involuntary petition in bankruptcy shall be
filed against Tenant under any federal or state bankruptcy or insolvency act and
Tenant shall not have filed a motion to dismiss said involuntary petition within
60 days of the filing thereof, or if a receiver shall be appointed for Tenant or
any of the property of Tenant by any court and Tenant shall not have filed a
motion to dismiss said receiver with 60 days of his appointment, or if Tenant
shall make an assignment for the benefit of creditors, or if Tenant shall admit
in writing Tenant's inability to meet Tenant's debts as they mature, or if
Tenant shall abandon or vacate the Premises during the Term, then Landlord may
treat the occurrence of any one or more of the foregoing events as a breach of
this Lease, and thereupon at its option may, with or without notice or demand of
any kind to Tenant or any other person, have any one or more of the following
described remedies in addition to all other rights and remedies provided at law
or in equity or elsewhere herein.
(i) Landlord may terminate this Lease and the Term created hereby, in
which event Landlord may forthwith repossess the Premises and be entitled
to recover forthwith, in addition to any other sums or damages for which
Tenant may be liable to Landlord, as damages a sum of money equal to the
excess of the value of the Base Rent provided to be paid by Tenant for the
balance of the Term over the fair market rental value of the Premises,
after deduction of all anticipated expenses of reletting, for said period.
Should the fair market rental value of the Premises, after deduction of all
anticipated expenses of reletting, for the balance of the Term exceed the
value of the Base Rent provided to be paid by Tenant for the balance of the
Term, Landlord shall have no obligation to pay to Tenant the excess or any
part thereof or to credit such excess or any part thereof against any other
sums or damages for which Tenant may be liable to Landlord. Any liquidated
damages paid to Landlord by operation of this subsection (insofar as said
damages are attributable to Rent for the balance of the Term) shall be
discounted to the date of payment at a discount factor equal to 120% of the
borrowing costs to the U.S. government for a term equal to the term
commencing with the date of the payment and ending at the Termination Date
of the Initial Term of the Lease.
(ii) Landlord may terminate Tenant's right of possession and may
repossess the Premises by forcible entry and detainer suit, by taking
peaceful possession or otherwise, without terminating this Lease, in which
event Landlord may, but shall be under no obligation to, relet the same for
the account of Tenant, for such rent and upon such terms as shall be
satisfactory to Landlord. For the purpose of such reletting. Landlord is
authorized to decorate, repair, remodel or alter the Premises. If Landlord
shall fail to relet the Premises. Tenant shall pay to Landlord as damages a
sum equal to the amount of the Rent reserved in this Lease for the balance
of the Term. If the Premises are relet and a sufficient sum shall not be
realized from such reletting after paying all of the costs and expenses of
all decoration, repairs, remodeling, alterations and additions and the
expenses of such reletting and of the collection of the rent accruing
therefrom to satisfy the Rent provided for in this Lease. Tenant shall
satisfy and pay the same upon demand therefor from time to time. Tenant
agrees that Landlord may file suit to recover any sums failing due under
the terms of this Section 23 from time to time and that no suit or recovery
of any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount
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not theretofore reduced to judgment in favor of Landlord. Landlord agrees
to use its best efforts to mitigate the damages due it hereunder.
24. EXPENSES OF ENFORCEMENT.
The non-prevailing party shall pay upon demand all of the prevailing
party's reasonable costs, charges and expenses including the fees and
out-of-pocket expenses the non-prevailing party's obligations hereunder or
incurred by the prevailing party in any litigation, negotiation or transaction
in which the non-prevailing party causes the prevailing party without the
prevailing party's fault to become involved or concerned.
25. COVENANT OF QUIET ENJOYMENT.
The Landlord covenants that the Tenant, on paying the Rent, charges for
services and other payments herein reserved and on keeping, observing and
performing all the other terms, covenants, conditions, provisions and agreements
herein contained on the part of the Tenant to be kept, observed, and performed,
shall, during the Term, peaceably and quietly have, hold and enjoy the Premises
subject to the terms, covenants, conditions, provisions, and agreements hereof.
26. SECURITY DEPOSIT. Tenant hereby deposits with Landlord the sum of Seventeen
Thousand Two Hundred Two and 69/100 DOLLARS ($17,202.69), (hereinafter referred
to as "Collateral"), as security for the prompt, full and faithful performance
by Tenant of each and every provision of this Lease and of all obligations of
Tenant hereunder.
(a) If Tenant fails to perform any of its obligations hereunder, Landlord
may use, apply or retain the whole or any part of the Collateral for the payment
of (i) any Rent or other sums of money which Tenant may not have paid when due,
(ii) any sum expended by Landlord on Tenant's behalf in accordance with the
provisions of this Lease, or (iii) any sum which Landlord may expend or be
required to expend by reason of Tenant's default, including, without limitation,
any damage or deficiency in or from the reletting of the Premises as provided in
Section 23. The use, application or retention of the Collateral, or any portion
thereof, by Landlord shall not prevent Landlord from exercising another right or
remedy provided by this Lease or by law (it being intended that Landlord shall
not first be required to proceed against the Collateral) and shall not operate
as a limitation on any recovery to which Landlord may otherwise be entitled. If
any portion of the Collateral is used, applied or retained by Landlord for the
purposes set forth above. Tenant agrees, within 10 days after the written demand
therefor is made by Landlord, to deposit cash with the landlord in an amount
sufficient to restore the Collateral to its original amount.
(b) If Tenant shall fully and faithfully comply with all of the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later date
after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Collateral, or of the remaining balance thereof, Landlord may return the same to
the original Tenant, regardless of one or more assignments of Tenant's interest
in this Lease or the Collateral. In such event, upon the return of the
Collateral, or the remaining balance thereof to the original Tenant, Landlord
shall be completely relieved of liability under this Section 26 or otherwise
with respect to the Collateral.
(c) Tenant acknowledges that Landlord has the right to transfer or mortgage
interest in the Land and the Building and in this Lease and Tenant agrees that
in the event of any such transfer or mortgage, Landlord shall have the right to
transfer or assign the Collateral to the transferee or mortgagee. Upon, and only
upon, written acknowledgement of transferee's or mortgagee's receipt of such
Collateral, Landlord shall thereby be released by Tenant from all liability or
obligation for the return of such Collateral and Tenant shall look solely to
such transferee or mortgagee for the return of the Collateral.
(d) The Collateral shall not be mortgaged, assigned or encumbered in any
manner whatsoever by Tenant without the prior written consent of Landlord.
(e) Notwithstanding any thing to the contrary in this Section, Landlord
shall accord Tenant a credit annually against Rent in amount equal to interest
capable of being earned on said Collateral if said Collateral
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were invested in a one-year Treasury Xxxx, purchased annually on the anniversary
date of the execution of this Lease.
(f) In the event of the filing of a bankruptcy by Landlord, and the
Collateral is found to be a part of the bankrupt's estate, Tenant shall have the
right of set-off against any sums then due from Tenant to Landlord an amount
equal to the amount of the Collateral.
(g) Notwithstanding anything in this Section to the contrary, Tenant
reserves to itself the right to secure the return of the Collateral from any
party, now or hereafter, who shall have the obligation to perform Landlord's
duties under the Lease.
27. REAL ESTATE BROKER
The Tenant represents that the Tenant has dealt with (and only with)
LaSalle Commercial Brokerage Co., Inc. and Irvine & Associates as broker in
connection with this Lease, and that insofar as the Tenant knows, no other
broker negotiated this Lease or is entitled to any commission in connection
therewith. Tenant agrees to indemnify, defend and hold Landlord and its
beneficiaries, employees, agents, their officers and partners, harmless from and
against any claims made by any broker or finder other than the broker named
above for a commission or fee in connection with this Lease, provided that
Landlord has not in fact retained such broker or finder. Landlord expressly
agrees to pay any and all brokerage commissions to identified brokers involved
in procuring this Tenant for Landlord.
28. MISCELLANEOUS
A. RIGHTS CUMULATIVE.
All rights and remedies of Landlord under this Lease shall be cumulative
and none shall exclude any other rights and remedies allowed by law.
B. INTEREST.
All payments becoming due under this Lease and remaining unpaid when due
shall bear interest until paid at the rate of ten per cent per annum (but in no
event at a rate which is more than the highest rate which is at the time lawful
in the State of Illinois).
C. TERMS.
The necessary grammatical changes required to make the provisions hereof
apply either to corporations or partnerships or individuals, men or women, as
the case may require, shall in all cases be assumed as though in each case fully
expressed.
D. BINDING EFFECT.
Each of the provisions of this Lease shall extend to and shall, as the case
may require, bind or inure to the benefit not only of the Landlord and of
Tenant, but also of their respective successors or assigns, provided this clause
shall not permit any assignment by Tenant contrary to the provisions of Section
16 hereof.
E. LEASE CONTAINS ALL TERMS.
All of the representations and obligations of Landlord are contained herein
and in the Work Letter, and no modification, waiver or amendment of this Lease
or of any of its conditions or provisions shall be binding upon the Landlord
unless in writing signed by Landlord or by a duly authorized agent of Landlord
empowered by a written authority signed by Landlord.
F. DELIVERY FOR EXAMINATION.
Submission of the form of the Lease for examination shall not bind Landlord
in any manner, and no Lease or obligations of the Landlord shall arise until
this instrument is signed by both Landlord and Tenant and delivery is made to
each.
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G. NO AIR RIGHTS.
No rights to any view or to light or air over any property, whether
belonging to Landlord or any other person, are granted to Tenant by this Lease.
H. MODIFICATION OF LEASE.
If any lender requires, as a condition to its lending funds the repayment
of which is to be secured by a mortgage or trust deed on the Land and Building
or either, that certain modifications be made to this Lease, which modifications
will not require Tenant to pay any additional amounts or otherwise change
materially the rights or obligations of Tenant hereunder. Tenant shall, upon
Landlord's written request, execute appropriate instruments effecting such
modifications.
J. TRANSFER OF LANDLORD'S INTEREST.
Tenant acknowledges that Landlord has the right to transfer its interest in
the Land and Building and in this Lease, and Tenant agrees that in the event of
any such transfer Landlord shall automatically be released from all liability
under this Lease and Tenant agrees to look solely to such transferee for the
performance of Landlord's obligations hereunder. Tenant further acknowledges
that Landlord may assign its interest in this Lease to a mortgage lender as
additional security and agrees that such an assignment shall not release
Landlord from its obligations hereunder and that Tenant shall continue to look
to Landlord for the performance of its obligations hereunder. Notwithstanding
anything in this paragraph to the contrary, Landlord agrees that Tenant shall
not be obligated to look to any such transferee for the performance of
Landlord's obligations hereunder unless there shall exist an express written
assumption by said transferee of said obligations. Any such express assumption
of Landlord's obligation by any such transferee shall not alter, modify,
abrogate, or change any pre-existing or accrued liability or obligation of
Landlord to Tenant.
K. LANDLORD'S TITLE.
Landlord's title is and always shall be paramount to the title of Tenant.
Nothing herein contained shall empower Tenant to do any act which can, shall or
may encumber the title of Landlord.
Tenant shall have the right to record a memorandum of lease as attached as
Exhibit G hereto; all parties hereto agree to sign such memorandum prior to
recordation of such by Tenant.
M. CAPTIONS.
The captions of Sections and subsections are for convenience only and shall
not be deemed to limit, construe, affect or alter the meaning of such Sections
or subsections.
N. COVENANTS AND CONDITIONS.
All of the covenants of Tenant hereunder shall be deemed and construed to
be "conditions", if Landlord so elects, as well as "covenants" as though the
words specifically expressing or importing covenants and conditions were used in
each separate instance. All of the covenants of Landlord hereunder shall be
deemed and construed to be "conditions", if Tenant so elects, as well as
"covenants" as though the words specifically expressing or importing covenants
and conditions were used in each separate instance.
O. ONLY LANDLORD/TENANT RELATIONSHIP.
Nothing contained in this Lease shall be deemed or construed by the parties
hereto or by any third party to create the relationship of principal and agent,
partnership, joint venturer or any association between Landlord and Tenant, it
being expressly understood and agreed that neither the method of computation of
Rent nor any act of the parties hereto shall be deemed to create any
relationship between Landlord and Tenant other than the relationship of landlord
and tenant.
P. APPLICATION OF PAYMENTS.
Landlord shall have the right to apply payments received from Tenant
pursuant to this Lease (regardless of Tenant's designation of such payments) to
satisfy any obligations of Tenant hereunder, in such order and amounts, as
Landlord in its sole discretion, may elect.
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This Lease is executed by LA SALLE NATIONAL BANK, not personally but as
Trustee as aforesaid, in the exercise of the power and authority conferred upon
and vested in it as such Trustee, and under the express direction of the
beneficiaries of a certain Trust Agreement dated 10/28/83 and known as Trust No.
107194 at LA SALLE NATIONAL BANK, to all provisions of which Trust Agreement
this Lease is expressly made subject. It is expressly understood and agreed that
nothing herein or in said Lease contained shall be construed as creating any
liability whatsoever against said Trustee 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, or to keep, preserve or sequester any
property of said Trust, and that all personal liability of said Trustee of every
sort, if any, is hereby expressly waived by said Lessee, and by every person now
or hereafter claiming any right or security hereunder; and that so far as said
Trustee is concerned the owner of any indebtedness or liability accruing
hereunder shall look solely to the premises hereby leased for the payment
thereof. It is further understood and agreed that said Trustee has no agents or
employees and merely holds naked legal title to the property herein described;
that said Trustee has no control over, and under this Lease, assumes no
responsibility for (1) the management or control of such property, the upkeep,
inspection, maintenance or repair of such property, (3) the collection of rents
or rental of such property, or (4) the conduct of any business which is carried
on upon such premises.
TENANT: LANDLORD:
GIS Information Systems, Inc. LaSalle National Bank, not personally but as
Trustee U/T/A #107194
By By
Its Its
Attested by and
000 Xxxxxxxx Xxxxx REIP
By
Its
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ADDENDUM TO LEASE
A-1. The Base Rent set forth in Section 3 and the Tenant's Proportionate
Share as defined in Subsection 4.A.(iv) are calculated on the basis that the
Premises consist of 4,513 square feet of rentable area of office space and
11,441 square feet of rentable area of computer space square feet of rentable
area contained in the Premises. Prior to the Commencement Date of this Lease,
Landlord shall cause the Premises to be measured, determine the actual number of
square feet of rentable area contained in the Premises, and recalculate the Base
Rent and the Tenant's Proportionate Share as follows: (A) the Base Rent set
forth in Section 3 shall be equal to the amount obtained by multiplying the
number of square feet of rentable office area contained in the Premises by
$10.25 per square foot per-annum; together with the amount obtained by
multiplying the number of square feet of rentable computer space contained in
the Premises by S14.00 per rentable square foot per annum, (B) the Tenant's
Proportionate Share shall be equal to the percentage calculated by dividing the
total rentable area of the Building set forth in Subsection 4.A.(iv) into the
total rentable area of the Premises. Promptly after Landlord has notified Tenant
of such determination and recalculations, Landlord certifies the following and
Landlord and Tenant agree to enter into an amendment to this Lease: (A) defining
the rentable area of the Premises, as determined by Landlord; (B) defining the
Base Rent as recalculated; and (C) defining the Tenant's Proportionate Share as
recalculated.
A-2. In the event that the total rentable area of the Building or the
Premises increases or decreases during the Term, Landlord shall recompute the
Base Rent, if applicable (using the then-current Base Rent) and the Tenant's
Proportionate Share in accordance with A-1. Promptly after Landlord has notified
Tenant of such recomputation, Landlord and Tenant agree to enter into an
amendment to the Lease: (A) describing and designating the Premises to reflect
any increase or decrease, if applicable; (B) defining the Base Rent as
recomputed, if applicable; and (C) defining the Tenant's Proportionate Share as
recalculated.
A-3. In the event that the number of square feet of rentable area in the
Premises or the Building as stated in the Lease or any amendment thereto is in
error, Landlord and Tenant agree to recompute, promptly after such error is
discovered, the Base Rent, if applicable (using the then-current Base Rent) and
the Tenant's Proportionate Share in accordance with Section A-1. Promptly after
such recomputation, Landlord and Tenant: (1) agree to enter into an amendment to
the Lease (A) setting forth the correct number of square feet of rentable square
feet in the Building and/or the Premises, as applicable (B) defining the Base
Rent as recomputed, and (C) defining the Tenant's Proportionate Share as
recomputed; and (2) agree to retroactively adjust Base Rent and the Tenant's
Proportionate Share as recomputed. If an error in the number of square feet in
the Premises or the Tenant's Proportionate Share previously resulted in Tenant
being overcharged, Landlord, upon discovery of the error, will retroactively
adjust the square footage and/or Tenant's Proportionate Share so as to accord
Tenant a credit against Rent due.
A-4. Notwithstanding anything in the Lease or Exhibits thereto to the
contrary, Tenant shall pay no Base Rent for the first nineteen (19) months of
the Term, the forty-ninth month of the Term beginning with the Commencement Date
and the sixty-first month of the Term.
A-5. Tenant shall pay Base Rent, subject to the remeasurement provisions
of Section A-1. through A-3. and further subject to the abatement provisions of
Section A-4., for the Premises, as follows:
(1) During the period September 1, 1987 through August 31, 1990, at the
annual rate of $206,432.25, payable in equal monthly installments of
$17,202.69 each.
(2) During the period September 1, 1990 through August 31, 1991, at the
annual rate of $211,593.05, payable in equal monthly installments of
$17,632.75 each.
(3) During the period September 1, 1991 through August 31, 1992, at the
annual rate of $216,753.86, payable in equal monthly installments of
$18,062.82 each.
(4) During the period September 1, 1992 through August 31, 1993, at the
annual rate of $221,914.66, payable in equal monthly installments of
$18,492.89 each.
(5) During the period September 1, 1993 through August 31, 1994, at the
annual rate of $227,075.47, payable in equal monthly installments of
$18,922.96 each.
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(6) During the period September 1, 1994 through August 31, 1995, at the
annual rate of $232,236.28, payable in equal monthly installments of
$19,353.02 each.
(7) During the period September 1, 1995 through August 31, 1996, at the
annual rate of $238,429.24, payable in equal monthly installments of
$19,869.10 each.
(8) During the period September 1, 1996 through August 31, 1997, at the
annual rate of $244,622.21, payable in equal monthly installments of
$20,385.18 each.
(9) During the period September 1, 1997 through August 31, 1998, at the
annual rate of $250,815.18, payable in equal monthly installments of
$20,901.27 each.
(10) During the period September 1, 1998 through August 31, 1999, at the
annual rate of $257,008.15, payable in equal monthly installments of
$21,417.35 each.
(11) During the period September 1, 1999 through August 31, 2000, at the
annual rate of $264,233.28, payable in equal monthly installments of
$22,019.44 each.
(12) During the period September 1, 2000 through August 31, 2001, at the
annual rate of $271,458.40, payable in equal monthly installments of
$22,621.33 each.
(13) During the period September 1, 2001 through August 31, 2002, at the
annual rate of $278,683.53, payable in equal monthly installments of
$23,223.63 each.
A-6. If Tenant is not in default, and on written notice delivered to
Landlord no later than November 30, 1992, Tenant shall have the right to cancel
and terminate this Lease, effective November 30, 1993, contingent on Tenant
having paid to Landlord no later than November 30, 1993, a sum equivalent to the
total of the following:
(1) $230,000.00, plus
(2) a dollar sum representing the product obtained by multiplying: (a)
$20.00 by (b) the number of square feet of rentable area for which
Tenant is then under lease, insofar as said number exceeds the total of
rentable square feet contained in the Initial Office Space and Initial
Computer Space, plus
(3) Any unpaid amounts owed by Tenant to Landlord pursuant to Tenant
obligation to repay Landlord for amounts advanced by Landlord as to
office space converted to computer space, pursuant to Section A-17.
(4) Any amounts that become Landlord's obligation to pay to Computer
Sciences Corporation to effect a termination of that tenant's lease,
pursuant to Section A-20. (but not to exceed $35.000.00).
A-7. If Tenant is not in default, it shall have the option (the "Option")
to purchase the Land and Building (collectively referred to herein as the
"Property") for the price of $8,300,000.00 exercisable during the two-year
period of the Lease Term between September 1, 1992 and August 31, 1994 (the
"Option Period"). The Option shall be exercised by notice in writing to
Landlord, such notice to include an xxxxxxx money deposit in the amount of
$100,000.00 made payable to Chicago Title and Trust Company as Escrowee. Within
five (5) days thereafter the parties shall execute and deliver to each other a
purchase contract identical in substance to the form attached hereto as Exhibit
A-A (the "Purchase Contract") and a deed and money escrow agreement as
contemplated in the Purchase Contract, and the xxxxxxx money shall be deposited
into the Escrow.
Upon exercise of the purchase option, Tenant's option to cancel the Lease
pursuant to paragraph A-6, shall terminate.
Purchaser may, beginning July 1, 1992 and during the Option Period and
prior to the exercise of the Option, exercise a right of inspection by notice in
writing to Landlord. Upon exercise of its right of inspection, Tenant, its
agents and representatives shall be entitled, upon reasonable notice to Seller,
(i) to perform inspections and tests of the Building, including but not limited
to, all leased areas and structural and mechanical systems within the
Improvements; (ii) examine and copy any and all books and records maintained by
Seller or its agents relating to receipts and expenditures pertaining to the
Project for the three (3) most recent full calendar years and the current
calendar year; (iii) make investigations with regard to
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zoning and building code requirements; and (iv) make market studies and real
estate tax analyses. Without limitation of the foregoing, Purchaser or its
designated independent accounts may audit the operating statements for the
Project at Purchaser's sole cost and expense and Seller shall supply such
documentation as Purchaser or its accountants may reasonably request to complete
such audit.
Within five (5) days after receipt of notice of the right of inspection,
Landlord shall deliver to Tenant true, accurate and correct copies (or the
originals thereof for reproduction by Tenant) of the following:
(i) All leases related to the Property, together with a statement of
any rents and other charges in arrears or prepaid thereunder and the period
for which such rents or other charges are in arrears or have been prepaid
and the most current rent roll and operating statement for the Project. The
rent roll shall set forth with respect to each of the leases the following:
the space covered thereby, the date and term thereof, renewal options, if
any, the rent and other charges payable thereunder, including escalations
and percentage rentals payable thereunder and the period for which such
rents and other charges are in arrears or have been prepaid, the amount of
security deposit thereunder, and the utilities, if any, which are furnished
as part of the rent. Any rentable area in the Project that is vacant shall
be shown on the rent roll;
(ii) All certificates of occupancy, licenses, permits, authorizations,
and approvals required by law and issued by all governmental authorities
having jurisdiction over the Project as are in the possession of Landlord
or its agents;
(iii) All insurance policies currently in force and effect for the
Project;
(iv) All service, executory, employment and union contracts affecting
the Project and a list of all employees of Landlord.
(v) All existing policies of title insurance and surveys of the
Property.
(vi) All engineering and inspection reports for the Property.
(vii) All mortgage documents.
(viii) Proposed Exhibits "A" through "J" to the Purchase Contract.
Tenant shall have until forty-five (45) days after receipt of all of the
documents referred to above (the "Feasibility Period") to investigate and
satisfy itself as to the feasibility and desirability of owning and operating
the Project. The notice of the right of inspection may be exercised by Tenant
three (3) more times during the Option Period. The documents to be delivered to
Tenant by Landlord for any additional Feasibility Periods shall supplement and
update the documents previously delivered. In the event that Tenant is not
satisfied for any reason with the result of its investigation, Tenant may, in
its sole discretion, elect not to exercise the Option. If the Option is not
exercised by Tenant during the Option Period, the Option shall terminate at the
end of the Option Period.
Any changes, modifications, notices or new information with respect to the
above items (i) through (viii) made or received by Landlord at any time after
such items have been delivered to Tenant shall be delivered in writing to Tenant
immediately upon such change or modification or receipt by Landlord of such
notice or new information.
Tenant acknowledges that, prior to the commencement of the Option Period,
Landlord may refinance the Property. Landlord hereby agrees that in the event of
any refinancing, to the extent that the new financing restricts prepayment of
the principal balance for any period during or after the Option Period, such
financing shall be upon terms which (i) are commercially reasonable in light of
then-prevailing market conditions for projects of a similar nature in the
metropolitan Chicago area; and (ii) will not interfere with or prohibit the
exercise by Tenant of its Option as set forth in this Section A-7.
A-8. Notwithstanding anything in the Lease or Exhibits thereto to the
contrary, Landlord's construction obligation to Tenant to prepare the Premises
for Tenant's occupancy shall consist of paying:
(1) for a turnkey buildout of the Initial Office Space utilizing (a)
existing Space Study #2, (with specifications as set forth therein)
dated May 21, 1987, by Bilimoria & Associates, Ltd., including
telephone, electrical, and reflected ceiling plans, (b) material
quantities as required to effect said
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construction, (c) and finish materials having a value of 125% of
Building Standard value of same (as said finish materials are described
in Attachment A to Workletter).
Notwithstanding anything herein to the contrary, Landlord also agrees to install
(at its own expense) throughout the Initial Office Space full height interior
doors of building standard-type finish, parabolic lenses, and upgraded ceiling,
as well as providing all necessary demolition, space plan(s), and architectural
and mechanical drawings for said Space. Landlord also agrees to provide and
install, at its own expense the chiller and related equipment and resulting
installation therefor, as detailed in Section 7.A. of the Lease.
The cost of installing the separate circuit and meter as described in Section
7.B. of the Lease shall be allocated as follows:
1. Landlord shall pay the first $5,000.00 thereof.
2. Tenant shall pay the next $5,000.00 thereof.
3. Landlord shall pay the next $5,000.00 thereof.
4. Tenant shall pay the next $5,000.00 thereof.
5. Landlord shall pay any excess above $20,000.00.
(2) $10.00 per rentable square foot of area in the Initial Computer Space
for:
(a) Space plan(s), and architectural and mechanical drawings, (for
which, collectively, a sum not exceeding $.80 per rentable square
foot shall be allocated against the construction allowance).
(b) Demolition (for which a sum not exceeding $1.00 per rentable square
foot shall be allocated), except that if the demolition costs more
than said sum, Landlord shall pay the excess above $1.00 per
rentable square foot.
(c) Buildout of said Premises per plans and drawings to be attached
hereto as Exhibit A-B, and per Xxxxxxx Construction Company's unit
costs, attached hereto as Exhibit A-C.
Any overage above said construction allowance shall be paid by
Tenant.
A-9. Any portion of the construction allowance accorded by Landlord to
Tenant not otherwise utilized pursuant to Section A-8. shall be applied dollar
for dollar so as to: (1) increase the Base Rent abatement periods previously
granted Tenant at commencement of the Lease Term, (2) at Tenant's option may be
applied to the Base Rent abatement periods previously granted Tenant during
latter periods in the course of the Lease Term, or (3) at Tenant's option, may
be applied to Tenant's dollar obligation incurred, if any, in effecting a
termination of Computer Sciences Corporation's lease, pursuant to Section A-20.
of the Addendum to Lease, or (4) at Tenant's option, may be applied to Tenant's
cost of installing the separate circuit and meter described in Section 7.B. of
the Lease.
A-10. Landlord agrees to and will provide Tenant with a written report,
prior to the Commencement Date of the Lease Term, from a mutually agreeable,
certified and qualified engineer nominated by Tenant, certifying that the
existing computer room equipment and installation is functional and in good
working order. After the submission and acceptance of said certification,
Landlord shall have no continuing obligation to repair, restore, renovate, or
replace the computer room equipment/installation. The afore-mentioned
engineering certification shall address the following areas of concern and such
other aspects of the integral components of the computer room as may later
become apparent:
(a) Halon system -- Halon to be fully charged and operable.
(b) Ed-Pacs -- to be in good working order, and all primary (daily and
weekly) and secondary (monthly and annually) maintenance shall have been
performed.
(c) Electrical supply system -- all components to be in good condition and
fully operable at their rated capacity.
(d) Light bulbs to be replaced, lenses and fixtures cleaned.
(e) Alarm and/or security systems -- checked, certified as operable and at
full capacity.
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(f) UPS systems -- checked, certified as operable and at full capacity.
A-11. Subject to rights of renewal, extension, option, or first refusal
accorded to the tenants in the Building prior to the execution of this Lease,
Tenant shall have the option, if it is not in default under this Lease, unless
Tenant is in the process of curing said default, to lease from Landlord, within
120 days from the Commencement Date of this Lease and on prior written notice
delivered to Landlord, on the same terms, including concessions, as are
contained in this Lease, all or any portion of the Building's rentable area
which, as of the date this Lease is executed by both parties hereto, is unleased
to any other party (hereinafter "Current Vacant Space").
Notwithstanding anything in this Section A-11. to the contrary, the area of
the Building presently under lease to X.X. Xxxxxxx Co. or under negotiation for
addition to the X.X. Xxxxxxx Co. lease shall be dealt with as follows:
Landlord represents to Tenant that Landlord is presently negotiating
with said tenant relative to a renewal of said lease, and to include, in
said renewal, an additional area consisting of approximately 1,600 square
feet of rentable area. Notwithstanding the pending negotiations with X.X.
Xxxxxxx Co., Landlord agrees with Tenant herein that Landlord will not
enter into a Lease Amendment with X.X. Xxxxxxx Co. for said 1,600 square
feet for a term expiring later than the termination date of X.X. Xxxxxxx
Co.'s existing lease. If X.X. Xxxxxxx Co. leases said 1,600 square feet,
upon the termination of the term thereof said space shall be considered
Current Vacant Space, and all of the terms and conditions contained in
Section A-11. and otherwise applicable to Current Vacant Space shall be
equally applicable as to said 1,600 square feet. Landlord further agrees
that any extension or renewal of lease for the existing X.X. Xxxxxxx Co.
space beyond the current termination date thereof shall be consistent with
the notice provisions and Tenant's rights of Section A-13. of the Addendum.
Notwithstanding anything in this Lease to the contrary, Tenant herein also
expressly consents to Landlord leasing to Xxxxxxxx Electronics Co., Inc. an
area consisting of approximately 9,000 square feet of area contained in
what is currently space leased to United States Lines, Inc. on the first
floor of the Building, for a five (5) year term. If said space is leased to
said prospective tenant, said space on the termination of lease therefor
shall also be treated as Current Vacant Space and thereafter available to
Tenant herein on the terms and conditions as are contained in Section A-11.
of this Lease.
A-12. If Tenant fails to exercise its option for Current Vacant Space,
pursuant to Section A-11. hereof, it shall nevertheless have a continuing right
of first refusal as to any portion of the Current Vacant Space which another
tenant or prospective tenant desires to lease from Landlord, on the following
terms and conditions:
(1) Landlord shall submit to Tenant herein any bona fide offers to lease
space in the Building.
(2) Tenant shall thereafter have the right to match the business terms
contained in the bona fide offer submitted to Section A-12.(1) above by
advising Landlord in writing within thirty (30) days of receipt of any
such bona fide offer of its intent to Lease the premises by said offer
on the same terms and conditions as are contained therein.
(3) If Tenant herein fails to advise Landlord of its intent to lease said
premises within said period of time or refuses to lease said premises on
the terms and conditions as are contained in said bona fide offer,
Tenant's rights of first refusal shall be waived as to said space, if
the other tenant or prospective tenant does, in fact, lease said
premises. If the terms and conditions in said bona fide offer change
during the course of negotiation with the Tenant or prospective tenant
and a lease is executed by Landlord pursuant thereto, said lease shall
be null and void and Tenant herein shall be entitled to receive
consequential damages resulting from its loss therefrom.
(4) If Tenant herein does exercise its right of first refusal as to said
premises, Tenant and Landlord shall, as soon as is practicable
thereafter, enter into a Lease Amendment incorporating said premises
into the Premises demised by Landlord to Tenant.
(5) The right of first refusal as to Current Vacant Space shall be a
continuing right; i.e.; if the subject premises are leased to another
tenant or prospective tenant, Tenant herein shall have the right to
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lease the subject premises from Landlord pursuant to this Section A-12.
upon the expiration of said other tenant or prospective tenant's lease.
(6) Landlord further agrees with Tenant herein that it shall not hereafter
lease any portion or all of the Current Vacant Space to another tenant
or prospective tenant for a period of more than five (5) years,
including renewals, option terms, or extensions, without first obtaining
the consent of Tenant herein, said consent not to be unreasonably
withheld.
A-13. Landlord further agrees that as to any space in the Building
hereafter vacated by a tenant under lease in the Building as of the date of the
execution of this Lease, by reason of the termination of said tenant's lease or
lease term, Landlord will provide Tenant with 300 days prior written notice
thereof, (if Landlord, in fact, has 300 days prior knowledge of said
termination) and Tenant herein shall thereafter have the right to lease said
space to be vacated as follows:
(1) Within 105 days of the receipt notice from Landlord to Tenant of the
expected vacating of said space, on the same terms and conditions as are
then applicable to the Premises demised hereby, (except that the
abatement of Rent shall be ratably reduced for said space, pursuant to
the formula for ratable reduction of construction, as contained in
Section A-17.), or
(2) Thereafter, pursuant to the rights of first refusal accorded to Tenant
herein pursuant to Section A-11. and A-12. (except that the abatement of
Rent shall be ratably reduced for said space, pursuant to the formula
for ratable reduction of construction, as contained in Section A-17.).
A-14. Landlord further agrees that as to any space in the Building
hereafter vacated by a tenant not under lease in the Building as of the date of
the execution of this Lease (hereafter "Intervening Tenant"), by reason of the
termination of said tenant's lease or lease term, Landlord will provide Tenant
herein with 300 days prior written notice thereof (if Landlord, in fact, has 300
days prior knowledge of said termination), and Tenant herein shall thereafter
have the right to lease said space to be vacated by the Intervening Tenant as
follows:
(1) Within 105 days of the receipt of notice from Landlord to Tenant of
the expected vacating of said space, on the same terms and conditions as
are then applicable to the Premises demised hereby, (except that the
abatement of Rent shall be ratably reduced for said space, pursuant to
the formula for ratable reduction of construction, as contained in
Section A-17.), or
(2) Thereafter, Tenant shall have the rights of first refusal accorded it
herein pursuant to Section A-11. and A-12. (except that the abatement of
Rent shall be ratably reduced for said space, pursuant to the formula
for ratable reduction of construction, as contained in Section A-17.).
Landlord shall use its best efforts in negotiating lease(s) with
Intervening Tenant(s) to assure that Landlord shall have the right under
said lease(s) to substitute premises, if required, for said Intervening
Tenant(s).
(3) If said space is vacant and Landlord fails to procure a new tenant for
it, Tenant having failed to lease it from Landlord pursuant to A-14. (1)
above, Tenant shall nevertheless have a continuing right, absent
exercise of its first refusal rights accorded in A-14.(2), to lease said
space from Landlord, on all the terms and conditions applicable to
Intervening Tenant space, except that the rental terms, including any
concessions customarily being offered for like space at that time in the
Oak Brook market, shall be the then fair market value for said space.
In case of a dispute between Landlord and Tenant as to said rental
terms, the dispute will be submitted to a binding arbitration process,
involving a qualified broker and/or appraiser, with the associated costs
divided equally between Landlord and Tenant and a result obtained in 30
- 40 days from date of submission.
A-15. The rights of first refusal accorded Tenant by Landlord pursuant to
Sections A-13. and A-14. shall be recurring and continuing; i.e.; if Tenant
fails or chooses not to exercise its rights when first applicable, said rights
of first refusal shall nevertheless survive said initial failure and thereafter
be available to Tenant herein, when next available.
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As to any offer(s) to lease space to another tenant or prospective tenant,
Tenant herein shall be advised by Landlord of any changes in business terms
after Landlord's initial offer(s).
A-16 Landlord's construction obligation to Tenant herein to prepare the
original Premises for Tenant's occupancy shall consist of:
(1) the turnkey construction for the Initial Office Space, pursuant to
Section A-8.
(2) $10.00 per rentable square foot for each square foot of Initial
Computer Space.
Said construction allowances are intended to pay for space plan(s),
architectural and mechanical drawings, (which costs, collectively, shall be
accorded an allowance not exceeding $.80 per rentable square foot; as in Section
A-8. (2) (a) herein, demolition, and construction of a permanent nature
(including wiring and installation thereof) excluding, for example, but not
limited to: furniture, trade fixtures, telephone and computer equipment (all as
detailed in Section A-8. herein).
Any additional construction costs are to be borne solely by Tenant, except
that Landlord shall be solely responsible for paying all costs associated with
installation of air conditioning necessary to comply with Landlord's obligation
pursuant to Section 7. of Lease relative to the difference between the 4,513
square feet of rentable area (Initial Office Space) and the 10,000 rentable
square feet of potential office space, or a difference of 5,487 rentable square
feet.
A-17. Landlord's construction obligation as to any space in the Building
presently built out as office space which Tenant leases from Landlord subsequent
to the Premises originally demised, shall be ratably reduced from $20.00 per
rentable square foot allowance; e.g.; if Tenant leases space at a point in time
when 10% of its Term has expired, Landlord's construction obligation shall be
reduced to $18.00 per rentable square foot.
As to any space in the Building built out as office space at the time this
Lease is executed and subsequently leased by Tenant and used as computer space,
Landlord's construction obligation shall consist of paying $20.00 per rentable
square foot, ratably reduced pursuant to the above formula in relation to the
amount of the Term remaining when said space is leased. Said primary costs shall
be paid by Landlord and Landlord shall not be entitled to a refund of same.
Landlord, however, agrees to pay any and all additional construction costs
associated with said build-out. To the extent any such additional costs exceed
the result of the construction formula associated with said secondary space,
Landlord shall advance said costs, but Tenant shall repay Landlord for those
advances, fully amortizing said sum over the balance of the Term then remaining,
together with interest at a rate equivalent to 100 basis points above the United
States Treasury Department's cost of borrowing for the same period of time, in
equal monthly installments, together with Rent, and as Rent.
Notwithstanding the contents of this Section A-17. to the contrary,
Landlord's $20.00 per rentable square foot construction obligation for computer
space leased as of the date of the execution of this Lease may be applied to:
(1) construction, or
(2) additional abated Base Rent otherwise due for said computer space, or
(3) any costs to be borne by Tenant associated with the buyout, if any, of
Computer Sciences Corporation's lease for computer space.
A-18. All options to add space and/or exercise of rights of first refusal
shall, under all circumstances, reflect a Termination Date which is the same as
the Termination Date of the Premises originally demised.
A-19. Only Base Rent is abated pursuant to Section A-4.; Tenant shall have
the obligation to pay from the Commencement Date of this Lease its proportionate
share of all Taxes and Operating Expenses, as said terms are defined in the
Lease.
A-20. Upon notice from Tenant to Landlord, Landlord and Tenant agree to
use their best efforts to negotiate a termination of the lease between Landlord
and Computer Sciences Corporation for that tenant's computer space in the
Building. Landlord agrees to pay the first $50,000.00 required to effect such a
termination; any amounts above $50,000.00 required to effect a termination will
be paid by Tenant herein.
7
50
A-21. If Tenant is not in default, or is in the process of curing said
default, and on written notice delivered to Landlord no later than twelve (12)
months prior to the end of the Term of this Lease, Tenant shall have the right
to renew this Lease for an additional term of five (5) years, commencing
September 1, 2002 and terminating August 31, 2007 (hereafter "First Extended
Term"), on all the terms and conditions of this Lease, except as follows:
(1) There shall be no abatement of Rent.
(2) Landlord's construction obligation as to any space not leased by
Tenant prior to the Commencement of the First Extended Term shall
consist of paying the cost of a then-building standard buildout. If the
First Extended Term expires and Tenant has not renewed the Lease for the
Second Extended Term, Tenant will refund to Landlord on or by August 31,
2007, an amount equal to the unamortized cost of said buildout, based on
a five (5) year amortization schedule, e.g.; if Tenant leases space for
the first time at the end of the second year of the First Extended Term,
and the then-building standard buildout is $15.00 per rentable square
foot, and Tenant does not renew pursuant to Section A-22., Tenant will
owe Landlord on or by August 31, 2007 the sum of $6.00 per rentable
square foot so leased ($15.00 X 40% = $6.00/rentable square foot).
(3) Tenant shall have no right to cancel or terminate the Term of Lease.
(4) The Base Rent for said First Extended Term shall be an amount, on a
per rentable square foot per annum basis, which is the greater of:
(a) Tenant's Base Rent rate as of the commencement of the First
Extended Term, or
(b) 80% of the then fair market value for equivalent space in the Oak
Brook Market.
A-22. If Tenant is not in default, or in the process of curing said
default, and on written notice delivered to Landlord no later than twelve (12)
months prior to the end of the First Extended Term of this Lease, Tenant shall
have the right to renew this First Extended Term for an additional term of five
(5) years, commencing September 1, 2007 and terminating August 31, 2012
(hereafter "Second Extended Term"), on all of the terms and conditions of this
First Extended Term, except as follows:
(1) There shall be no abatement of Rent.
(2) Landlord's construction obligation as to any space not leased by
Tenant prior to the commencement of the Second Extended Term shall
consist of paying the cost of a then-building standard buildout ratably
reduced by the percentage of the Second Extended Term that has expired
prior to the commencement date of the lease term for said space; e.g.;
if Tenant leases space for the first time at the end of the second year
of the Second Extended Term, and the then-building standard buildout is
$15.00 per rentable square foot, Landlord's construction obligation
therefor shall be $9.00 per rentable square foot so leased ($15.00 X 60%
= $9.00/rentable square foot).
(3) Tenant shall have no right to cancel or terminate the Term of Lease.
(4) The Base Rent for said Second Extended Term shall be an amount, on a
per rentable square foot per annum basis, which is the greater of:
(a) Tenant's Base Rent rate as of the commencement of the Second
Extended Term, or
(b) 80% of the then fair market value for equivalent space in the Oak
Brook market.
A-23. At any time after the execution of this Lease, but before the
Commencement Date hereof, Tenant shall have the right to enter into the Premises
to test the facilities therein and set up necessary equipment, and, pursuant to
this Lease, to occupy the Initial Computer Space at any time, and the Initial
Office Space after completion of its reconstruction. Landlord shall cooperate
fully in granting access to Tenant therefor, but shall impose such reasonable
requirements as are necessary to assure security for, and control of, the
Building. During such period of time prior to the Commencement Date hereof,
Tenant agrees to hold Landlord harmless from any damage, liability or claims it
may suffer as a result of Tenant's activities and to indemnify Landlord for any
losses, claims, damage, or liability (except as same result from Landlord's
gross negligence) Landlord may suffer by reason of Tenant's activities in the
Premises. All of the applicable provisions of this Lease relating to
construction, insurance, covenant against liens, possession, repairs, fire and
8
51
casualty, rules and regulations, shall be equally applicable during this period
of time prior to the Commencement Date.
A-24. Prior to signage other than building standard signage, tenant shall
have the right to erect and the obligation to maintain, both at its sole cost,
any desired signage in the interior or on the exterior of the Building, subject
to Landlord's consent, not to be unreasonably withheld, and further subject to
applicable rules and ordinances of any governmental body, including, but not
limited to, the Village of Oak Brook. Tenant's signage rights, subject to this
Section, shall be exclusive to Tenant only (and not accorded to any other tenant
or prospective tenant in the Building) after such time as Tenant herein has
leased one-half or more of the rentable square feet in the Building; at that
point in time, Tenant shall also have the right to rename the Building, subject
to Landlord's consent, not to be unreasonably withheld.
A-25. The uninterrupted power supply system (UPS) presently in the
Building will be maintained jointly by Landlord, Tenant, and Computer Sciences
Corporation, with Tenant paying its proportionate share of the cost of said
maintenance. Tenant will immediately utilize its best efforts to negotiate with
Computer Sciences Corporation a joint maintenance agreement of the UPS system.
If such an arrangement is made, Landlord's maintenance obligation shall be
waived.
Landlord's maintenance obligation, so long as it exists hereunder, shall be
undertaken with a responsible and qualified maintenance firm. Landlord and
Tenant shall use their best efforts to agree on a maintenance contractor; in the
event the parties fail to reach agreement, Landlord shall have the right to
choose the contractor.
A-26. Tenant shall have the exclusive right to use five (5) assigned
covered parking spaces and five (5) assigned uncovered parking spaces on the
parking lot of the Building during the Term of Lease, or any renewal thereof,
without charge, as agreed upon by Landlord, and Tenant as shown on Exhibit E. At
such time as Tenant leases from Landlord additional space beyond the Premises
originally demised, Landlord agrees to provide Tenant with additional, exclusive
assigned parking spaces at the ratio of one parking space per 1,000 square feet
of rentable area so leased, on the parking lot of the Building, for the Term of
the Lease, or any renewal thereof, without charge, as agreed upon by Landlord,
and Tenant, with one-half of said spaces being covered and one-half uncovered.
A-27. In addition to the Option granted to Tenant in section A-7. hereof,
Tenant has the following rights:
In the event that Landlord receives a bona fide offer (the "Offer") from a
third party to purchase the Property which Landlord desires to accept, Landlord
shall first give written notice (the "Notice") thereof to Tenant. The Notice
must be received by Tenant not less than thirty (30) days before the proposed
sale and shall state the date of the proposed sale, the name and address of the
proposed purchaser, and shall include a copy of the Offer specifying the terms
and conditions of the proposed sale. Within thirty (30) days after the receipt
of the Notice, Tenant shall have a right of first refusal to purchase the
Property on the terms and conditions set forth in the Offer except as to the
proposed date of sale contained therein. If Tenant exercises its right of first
refusal to purchase the Property, by written notice to Landlord, Tenant and
Landlord shall, as soon as is practicable thereafter, enter into a contract for
sale and purchase of the Property on the same terms and conditions as contained
in the Offer except the date of sale shall be sixty (60) days after exercise of
the right of first refusal.
The right of first refusal accorded Tenant by Landlord pursuant to this
Section A-28 shall be recurring and continuing; i.e., if Tenant chooses not to
exercise its right when first applicable, and the Property remains unsold, the
right of first refusal shall nevertheless continue to be available to Tenant,
when next applicable. As to any Offer from any prospective purchaser to purchase
the Property, Landlord shall advise Tenant of any changes in terms or conditions
from those contained in the Offer attached in the Notice, whereupon Tenant shall
have thirty (30) additional days in which to exercise the right of first refusal
as set forth herein.
A-28. Except as amended, modified, or supplemented hereby, all of the
terms and conditions of the Lease and Exhibits thereto shall remain in full
force and effect. Wherever there is a conflict between the Lease (and Exhibits
thereto) and this Addendum, the Addendum shall control and prevail.
9
52
ACCEPTED AND AGREED: LANDLORD:
By: LaSalle National Bank, not personally
TENANT: GIS Information Systems, Inc. but as Trustee U/T/A #107194
By: By: /s/ [Signature]
Attest: Its:
and
000 Xxxxxxxx Xxxxx REIP
By: /s/ [Signature]
Its:
Tenant's Guarantor(s)
10
53
EXHIBIT A
54
EXHIBIT B TO LEASE
FOR
000 Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxxx 00000
Certified Collateral Corporation
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
Gentlemen:
You (hereinafter called "Tenant") and we (hereinafter called "Landlord"),
are executing simultaneously with this letter agreement a written lease (the
"Lease") covering certain premises, as more particularly described in said
lease, in the building known as 000 Xxxxxxxx Xxxxx.
To induce Tenant to enter into the Lease (which is hereby incorporated by
reference to the extent that the provisions of this letter agreement may apply
thereto) and in consideration of the mutual covenants hereinafter contained,
Landlord and Tenant agree as follows:
1. (a) Landlord, at Landlord's cost and expense (as detailed in A-8. to
Addendum to Lease) shall do the work outlined in accordance with Xxxxxxx
Construction Co.'s unit costs, attached as Exhibit A-C, and quantity breakdown"
identified by Landlord and Tenant and attached hereto (hereinafter called
"Work"). Landlord shall pay for the necessary initial architectural drawings for
the work (hereinafter called "Plans") to be drawn at a cost (as detailed in A-8.
to Addendum to Lease), by Tenant's space planner and engineer. The Plans must
include partition drawings, telephone and electric drawings and reflected
ceiling drawings and must be suitable in all respects for submission to the
Building Department of the village of Oak Brook in order to obtain a building
permit. All of the Plans are expressly subject to Landlord's written approval.
Tenant has assured itself by direct communication with its space planner or
architect that the Plans can be delivered to Landlord by Tenant on or before
June 15, 1987, provided that Tenant promptly furnishes complete information
concerning Tenant's requirements with respect to the Work to said space planner
or architect as and when requested by them. Tenant covenants and agrees to cause
said Plans to be delivered to Landlord on or before said date. Landlord will, at
Landlord's sole cost and expense, have mechanical (sprinkler, air conditioning,
heating, electric and plumbing) drawings prepared by Landlord's mechanical
engineer covering, and limited to, the mechanical elements of the Work as shown
on the Plans as the Work relates specifically to Building Standard installations
as set forth in Addendum hereto.
(b) Except as set forth in subparagraph (a), Landlord has no other
agreement with Tenant and has no other obligation to do any other work with
respect to said premises. Any other work in said premises which may be permitted
by Landlord pursuant to the terms and conditions of the Lease shall be done at
Tenant's sole cost and expense and in accordance with said terms and conditions.
2. If Landlord further agrees to perform, at Tenant's request and upon
submission by Tenant (at Tenant's sole cost and expense) of all necessary
drawings, plans and specifications, any other work in addition to the Work
described in Paragraph 1 hereof, such other work to be done at Tenant's sole
cost and expense as a Tenant's extra. Prior to commencing any such other work
requested by Tenant. Landlord shall submit to Tenant written estimates of the
cost of such other work. If Tenant shall fail to approve said estimates within
seven (7) days from the receipt thereof, the same shall be deemed disapproved in
all respects by Tenant and Landlord shall not be authorized to proceed thereon.
Tenant agrees to pay to Landlord promptly upon being billed therefor, at any
time and from time to time, the cost of all such other work together with ten
percent (10%) of said cost for Landlord's overhead. Landlord shall not charge a
fee for itself for the initial construction.
3. Notwithstanding the date provided in the Lease for commencement of the
term thereof, Tenant's obligation to pay rent thereunder shall not commence
until Landlord shall have substantially completed all of
55
the Work to be done by Landlord as described in Paragraph 1 hereof; provided,
however, that if Landlord shall be delayed in substantially completing said work
as a result of
(a) Tenant's failure to furnish the Plans for the Work in accordance with
paragraph 1 hereof, or
(b) Tenant's failure to approve cost estimates within the time specified
in paragraph 2 hereof, or
(c) Tenant's request for materials, finishes or installations other than
Building Standard, or
(d) Tenant's changes in the Work or the Plans thereof (notwithstanding
Landlord's approval of such changes); or
(e) The performance of any work by Tenant or any person, firm or
corporation employed by Tenant; or
(f) Any fault of Tenant or its agents,
the commencement of the term thereof and the payment of rent thereunder shall
not be affected or deferred on account of such delay.
4. Landlord, at Landlord's discretion, may permit Tenant and Tenant's
agents to enter said premises prior to the date specified as the commencement of
the term of the Lease in order that Tenant may do such other work as may be
required by Tenant to make said premises ready for Tenant's use and occupancy
thereof. If Landlord permits such entry prior to commencement of the term, then
such permission however, is conditioned upon Tenant and Tenant's agents,
contractors, workmen, mechanics, suppliers and invitees, working in harmony and
not interfering with Landlord and Landlord's agents in doing Landlord's work in
said premises or for other tenants and occupants of said building. If at any
time such entry shall cause or threaten to cause such disharmony or
interference, Landlord shall have the right to withdraw such permission upon
twenty-four (24) hours written notice, to Tenant. Tenant agrees that any such
entry into and occupation of the premises shall be deemed to be under all of the
terms, covenants, conditions and provisions of the Lease except as to the
covenant to pay rent, and further agrees Landlord shall not be liable in any way
for any injury, loss or damage (except for the negligence of Landlord, its
agents, employees, servants, contractors and invitees) which may occur to any of
Tenant's work and installations made in said premises or to properties placed
therein prior to the commencement of the term of the Lease, the same being at
Tenant's sole risk.
5. Notwithstanding anything in this Exhibit or in the Lease to the
contrary, Tenant shall have the right, as to construction work performed after
the work associated to install Tenant in the Premises, to choose its own
contractor if its bid is lower and/or bid out said work. If Tenant thereafter
engages its own contractor to perform the requisite construction, Landlord shall
have no supervisory capacity as to said contractor, but said contractor shall:
(a) Provide Landlord with a current certificate of insurance, satisfactory
in content and coverage.
(b) Adhere to the then-prevailing practice in Oak Brook relative to the
hiring of union personnel for the construction.
(c) Provide Landlord with a performance bond for the subject construction.
(d) Possess a current contractor's license enabling it to perform
construction in Oak Brook.
(e) Certify to Landlord that it has, for each of the three (3) years
previous to the subject construction, performed and completed similar
construction in an amount of not less than $2,000,000.00 in value.
Any such Tenant-contracted construction shall be performed in a timely,
diligent and workmanlike manner and Tenant shall be solely responsible for the
quality of such work.
Tenant agrees to indemnify and hold Landlord harmless from any claims
arising from, or as a result of, any such Tenant-contracted construction.
If the foregoing correctly sets forth our understanding, kindly sign as
indicated below.
56
ACCEPTED AND AGREED: LANDLORD:
By: LaSalle National Bank, not personally
TENANT: GIS Information Systems, Inc. but as Trustee U/T/A #107194
By:
By:
Its:
Attest:
and
000 Xxxxxxxx Xxxxx REIP
By:
Its:
Tenant's Guarantor(s)
57
000 Xxxxxxxx Xxxxx Xxxxxxxx
Xxxxxxxxxx A to Workletter
The Building Standard is:
1. Full height, solid core, single leaf entry door(s) in accordance with
building code with lever handle(s) and lockset.
2. Partitions where designated on the Plans not to exceed one (1) lineal foot
for each fifteen (15) square feet of usable area.
3. Standard height interior door frames and solid core doors including door
stops, hinges, and latchset hardware where designated on the Plans not to
exceed one (1) door for each five hundred (500) square feet of usable
area.
4. Suspended mineral acoustical tile ceiling throughout the Premises.
5. Recessed two foot by four foot (2' x 4') fluorescent light fixtures in a
quantity not to exceed one (1) fixture for each eighty (80) square feet of
usable area. The lighting fixtures shall be controlled by one (1) switch
for each six hundred (600) square feet of usable area.
6. Duplex electrical wall receptacles on the basis of not more than one (1)
receptacle for each 200 square feet of usable area.
7. Telephone outlets, in walls, on the basis of not more than one (1) outlet
for each two hundred fifty (250) square feet of usable area.
8. Floor covering allowance of One Dollar ($1.33) per usable square foot of
floor space.
9. Sprinkler heads in a quantity as and if required by Oak Brook Building
Code.
10. Standard building window treatment on all exterior windows.
11. Painting and partitions and columns and interior side of exterior window
walls in Landlord's standard manner, colors to be selected by Tenant from
Landlord's Building Standard Colors; but not more than one (1) color in
any one room or other area.
58
(LOGO) EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
TO: The AEtna Casualty and Surety Company and/or whom else it may concern:
THIS IS TO CERTIFY THAT:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
___________________ by and between _____________________ as Lessor
(Landlord) and ________________________________________________________ as
Lessee, covering those certain premises commonly known and designated as
_______________________________________________________________________
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting said
premises. If none, state "none."_______________________________________
_______________________________________________________________________
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, sate "none."_________________________________
______________________________________________________________________
4. The undersigned has accepted and now occupies the premises, and is and has
been open for business since __________, 19___. The lease term began
________, 19___, and the rent for said premises has been paid to and
including ________, 19___. No rent has been prepaid for more than
two (2) months. The fixed minimun rent being paid as above is $________
per month.
_______________________________________________________________________
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, and no
offset or deduction in rent, except as otherwise allowed pursuant to the
Lease.
6. The undersigned has received or will receive payment or credit for tenant
improvement work in the total amount of $__________ (or if other than cash,
describe below). If none, state "none."___________________________________
__________________________________________________________________________
7. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any state
thereof.
8. This certification is made to induce The AEtna Casualty and Surety Company
to make certain fundings, knowing that The AEtna Casualty and Surety
Company relies upon the truth of this certificate in disbursing said funds.
9. Standard Mortgagee Protection Clause attached hereto as Exhibit A
Dated this ____________ day of ___________ 19___.
__________________________, LESSEE
By:_______________________________
Its_______________________________
59
GUARANTEE
In order to induce Landlord to enter into the foregoing Lease, CCC
Information Services, Inc. (the "Guarantor") hereby directly, absolutely, and
unconditionally guarantees to Landlord and Landlord's successors and assigns
the full and punctual payment of Rent due under the Lease and the full,
complete and timely performance of all of Tenant's obligations under the Lease.
Any act of the Landlord or its agents, or the successors or assigns
of the Landlord, or their agents consisting of a waiver of any of the terms or
conditions of the Lease, or the giving of any consent to any manner or thing
relating to the Lease, or the granting of any indulgences or extensions of time
to the Tenant, or to the release of any collateral providing security for the
full performance of Tenant's obligations may be done without notice to the
Guarantor and without releasing the obligations of the Guarantor hereunder.
The obligations of the Guarantor hereunder shall not be released by
Landlord's receipt, application, or release of security given for the
performance and observance of covenants and conditions in the Lease contained
on the Tenant's part to be performed or observed, nor by any modification of
the Lease, but in case of any such modification the liability of the Guarantor
shall be deemed modified in accordance with the terms of any such modification
of the Lease.
The liability of the Guarantor hereunder shall in no way be affected
by (a) the release or discharge of the Tenant in any creditors', receivership,
bankruptcy, or other proceedings; (b) the impairment, limitation, or
modification of the liability of the Tenant or the estate of the Tenant in
bankruptcy, or of any remedy for the enforcement of the Tenant's said liability
under the Lease, resulting from the operation of any present or future
provision of the Bankruptcy Act or other statute or from the decision in any
court; (c) the rejection or disaffirmance of the Lease in any such proceedings;
(d) the assignment or transfer of the Lease by the Tenant; (e) any disability
or other defense of the Tenant; (f) the cessation from any cause whatsoever of
the liability of the Tenant other than a termination of Lease (resulting from a
judgment by a court of competent jurisdiction) due to Landlord's default; or
(g) the impairment or release of any collateral securing the full performance
of Tenant's obligation.
Guarantor's liability herein is direct, absolute, continual, and
unconditional and is joint and several and independent of the obligations of
Tenant, and a separate actions or actions may be brought and the obligation of
the Guarantor may be immediately enforced without necessity of any action
against Tenant or collateral and prosecuted against Guarantor whether or not
action or actions are brought against Tenant or whether or not Tenant is joined
in any such action or actions or whether or not Landlord has resorted to any
collateral, and Guarantor waive benefit of any enforcement thereof.
60
EXHIBIT D TO LEASE FOR
000 Xxxxxxxx Xxxxx
-----------------------
Xxx Xxxxx, Xxxxxxxx
-----------------------
RULES AND REGULATIONS
RULES AND REGULATIONS. Tenant agrees to observe (to the extent not
inconsistent with rights granted under the Lease) the rights reserved to
Landlord in the lease and agrees, for itself, its employees, agents, clients,
customers, invitees and guests, to comply with the following rules and
regulations and with such reasonable modifications thereof and additions
thereto as Landlord may make for the Building:
(a) Any sign, lettering, picture, notice, or advertisement installed
within Tenant's Premises which is visible to the public from within the
Building shall be installed at Tenant's cost and in such manner, character and
style as Landlord may approve in writing. No sign, lettering, picture, notice
or advertisement shall be placed on any outside window or in any position so as
to be visible from outside the Building or from the atrium areas of the
Building.
(b) Tenant shall not use the name of the Building or use pictures or
illustrations of the Building in advertising or other publicity, without prior
written consent of Landlord, not to be unreasonably withheld.
(c) Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules, halls,
elevators and stairways in and about the Building. Tenant shall not place
objects against glass partitions or doors or windows or adjacent to any open
common space which would be unsightly from the Building corridors or atriums,
or from the exterior of the Building, and will promptly remove the same upon
notice from Landlord.
(d) Tenant shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic devices
or other devices that emit sound, waves, or dangerous to other tenants and
occupants of the Building or that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, and shall not place or install any
projections, antennae, aerials or similar devices inside or outside of the
Premises, without the prior consent of Landlord, not to be unreasonably
withheld.
(e) Tenant shall not make any room-to-room canvass to solicit business
from other tenants in the Building, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or service in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises as specified in its
lease.
(f) Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air conditioning, and shall refrain from attempting to adjust any
building controls. Tenant shall keep public corridor doors closed.
(g) Two door keys for door in the Premises will be furnished at the
commencement of the lease by Landlord. Tenant shall not affix additional locks
on doors and shall purchase duplicate keys only from Landlord. When the lease
is terminated, Tenant shall return all keys to Landlord and will provide to
Landlord the means of opening any safes, cabinets or vaults left in the
Premises.
(h) Tenant assumes full responsibility (subject to the negligence of
Landlord, its agents, employees, servants, contractors or invitees) for
protecting its space from theft, robbery and pillerage, which includes keeping
doors locked and other means of entry to the Premises closed and secured.
(i) Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
(j) Tenant shall not install and operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of the Landlord.
(k) Except as otherwise provided in the lease, no person or contractor
not employed by Landlord shall be used to perform window washing, cleaning,
decorating, repair or other work in the Premises.
(l) Tenant shall not, and Tenant shall not permit or suffer anyone to:
(1) Xxxx in the Premises;
(2) Place vending or dispensing machines of any kind in or
about the Premises;
(3) At any time sell, purchase or give away, or permit the
sale, purchase or gift of, food in any form;
61
However, with prior written consent of Landlord, such activities may be
permitted in lounges or other facilities designated for this purpose, or in
Tenant's Premises.
(m) Tenant shall not:
(1) Use the Premises for lodging or for any immoral or illegal
purposes.
(2) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any spirituous, fermented, intoxicating
or alcoholic beverages on the Premises.
(3) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any illegal drugs on the Premises.
(n) In no event shall any person bring into the Building
inflammables such as gasoline, kerosene, naphtha and benzine, or
explosives or firearms or any other article of intrinsically
dangerous nature. If by reason of the failure of Tenant to
comply with the provisions of this paragraph, any insurance
premium payable by Landlord for all or any part of the Building
shall at any time be increased above normal insurance premiums
for insurance not covering the items aforesaid, Landlord shall
have the option to require Tenant to make immediate payment
for the whole of the increased insurance premium.
(o) Tenant shall comply with all applicable federal, state and
municipal laws, ordinances and regulations and building rules,
and shall not directly or indirectly make any use of the Premises
which may be prohibited thereby or which shall be dangerous to
person or property or shall increase the cost of insurance or
require additional insurance coverage.
(p) If Tenant desires signal, communication, alarm or other
utility or service connection installed or changed, the same
shall be made at the expense of Tenant, with approval and under
direction of Landlord.
(q) Tenant shall not move into the Premises or allow itself to be
moved into the Premises, in whole or in part, nor move from
the Premises or allow itself to be moved from the Premises, in
whole or in part, unless it shall first contact Landlord and
make arrangements to do so at such reasonable times as Landlord
may direct.
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(GRAPHIC)
63
EXHIBIT F
X.X. XXXXX & ASSOCIATES
Consulting Mechanical & Electrical Engineers
May 30, 1987
Xx. Xxxxx Xxxxxxx
LaSalle Mortgage & Realty Co. Inc.
0000 X. Xxxxxxx Xxx.
Xxxxxxx Xxx. 00000
RE: GIS Information Systems
000 Xxxxxxxx Xx., Xxxxxxxx
Dear Xxxxx:
Following is a description of the new H.V.A.C. system being designed to
serve the GIS Information Systems offices at 000 Xxxxxxxx Xxxxx.
The existing H.V.A.C. is located on the second floor and serves all
tenant space on that floor with the exception of the computor room.
The new tenant space will be diconnected from this system and a new
system will be installed to serve only this space.
The new system will be a roof top variable volume System, designed
to operate 24 hours a day 365 days per year. This system will provide both
heating and cooling for the tenant space. The system components and
operation is as follows.
The main air handler and refrigeration equipment will be a package unit
with a capacity of approx. 30 tons of refrigeration located on the roof
above the tenant space. This package unit will provide both the
ventilation air and cooling for the space. The unit will have a
economizer cycle to provide free cooling when the outside air temperature
is low enough to satisfy the space requirements. The control to start and
stop the unit will be located in tenant space. Conditioned air to
the perimeter rooms will be delivered to variable volume fan powered boxes
with hot water heating coils controlled by automatic valves. Interior
rooms will be served by variable volume boxes. Each box will be considered
as a control zone operated by a thermostat to provide independent
control of the space served. Each control zone will serve multiple rooms as
long as they have the same outside exposure and usage. Space such as
conference rooms will have independent control for each room.
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X.X. XXXXX & ASSOCIATES
Consulting Mechanical & Electrical Engineers
Fan powered boxes operate as variable volume boxes as long as heating is
not required, when heating is required the fan and coil are activated
automatically by a thermostat to provide a constant heated air flow to
the space. The variable volume box provides a variable air flow to the
space by controlling a damper in the box. The control of both boxes is
accomplished by a thermostat located in the space served. The system is
very flexible and additional control zones can be added if the tenant so
desires. The hot water system used to provide heat to the box will be
provided by the existing building system. The building hot water system
operates 365 days a year so hot water is always available.
The system I have just described is very energy conserving and the
present state of the art. If you require any additional information as to
the exact operation of each component I will be happy to provide you with
a detailed description.
Sincerely:
/s/ Xxxxxxx Xxxxx
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EXHIBIT G
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE, made this ______ day of ___________, 1987, by and
between LaSALLE NATIONAL BANK, not personally, but as trustee under Trust
Number 107194 and 000 XXXXXXXX XXXXX REIP, an Illinois limited partnership, a
beneficiary of said trust (collectively, "Landlord"), and GIS INFORMATION
SYSTEMS, INC., an Illinois corporation ("Tenant").
W I T N E S S E T H:
1. Landlord, in consideration of the rents reserved and the terms,
covenants, agreements and conditions contained in that certain lease agreement
("the Lease") dated as of the date hereof between Landlord and Tenant, has
leased and demised and does hereby lease and demise to Tenant certain office
space in the building ("the Building") known as 000 Xxxxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxx, located on real property (the "Property") legally described in
Exhibit "A" attached hereto and incorporated herein by this reference. Tenant
accepts the demised premises subject to the terms and conditions of the Lease.
2. The term of the Lease (the "Lease Term") commences on or about
September 1, 1987 and ends on August 31, 2002. Tenant has options to extend the
Lease Term for two (2) additional five (5) year terms, as more fully set forth
in the Lease.
3. Tenant has a right of first refusal, exercisable at any time during the
Lease Term, to purchase the Property upon the same business terms as set forth
in any bona fide offer to purchase the Property from a third party, which offer
Landlord desires to accept, as more fully set forth in the Lease.
4. Tenant has an option to purchase the Property at a fixed price and
on fixed terms during the two-year period of the Lease Term between September 1,
1992 and August 31, 1994, as more fully set forth in the Lease.
This Instrument prepared by Property Address:
and after recording, please 000 Xxxxxxxx Xxxxx
return to: Oak Brook, Illinois
Xxxxx X. Xxxxx
Xxxxxxxx Xxxxxx & Xxxxxxxxxx,
Ltd.
00 X. Xxxxxx Xxxxx, 00xx Xxxxx Permanent Index Number:
Xxxxxxx, Xxxxxxxx 00000 06 23 407 004
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5. Subject to the rights of other tenants of the Building, Tenant has an
option to lease any space available in the Building as of the date of execution
of the Lease on the same terms as are contained in the Lease, which option is
exercisable within 120 days from the Commencement Date of the Lease, as more
fully set forth in the Lease.
6. In Inanition to the option referred to at Paragraph 5.
This Lease is executed by LA SALLE NATIONAL BANK, not personally but as Trustee
as aforesaid, in the exercise of the power and authority conferred upon and
vested in it as such trustee, and under the express direction of the
beneficiaries of a certain Trust Agreement dated 10/28/83 and known as Trust
No. 107194 at LA SALLE NATIONAL BANK, to all provisions of which Trust
Agreement this Lease is expressly made subject. It is expressly understood and
agreed that nothing herein or in said Lease contained shall be construed as
creating any liability whatsoever against said Trustee 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, or to keep, preserve or
sequester any property of said Trust, and that all personal liability of said
Trustee of every sort, if any, is hereby expressly waived by said Lessee, and
by every person now or hereafter claiming any right or security hereunder; and
that so far as said Trustee in concerned the owner of any indebtedness or
liability accruing hereunder shall look solely to the premises hereby leased
for the payment thereof. It is further understood and agreed that said
Trustee has no agents or employees and merely holds naked legal title to the
property herein described; that said Trustee has no control over, and under
this Lease, assumed no responsibility for (l) the management or control of such
property, (2) the upkeep, inspection, maintenance or repair of such property,
(3) the collection of rents or the rental of such property, or (4) the conduct
of any business which is carried on upon such premises.
ATTEST: LASALLE NATIONAL BANK,
Trustee as aforesaid
/s/______________________ By:/s/__________________
Secretary Asst. (Vice) President
ATTEST:
/s/____________________
(Assistant) Secretary
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67
STATE OF ILLINOIS )
) SS.
COUNTY OF________ )
The foregoing instrument was acknowledged before me this day ______ of
June, 1987 by ____________ , (Vice) President, and ________________________ ,
(Assistant) Secretary, of GIS Information Systems, Inc., an Illinois
corporation, on behalf of the corporation.
___________________________
Notary Public
* * * * * *
STATE OF ILLINOIS )
) SS.
COUNTY OF_________)
The foregoing instrument was acknowledged before me this day ______ of
June, 1987 by ____________ , general partner of 000 Xxxxxxxx Xxxxx REIP, an
Illinois limited
partnership, on behalf of the partnership.
____________________________
Notary Public
* * * * * *
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The foregoing instrument, was acknowledged before me this ______ day of
June, 1987 by ____________ Asst. (Vice) President, and ______________________
(Assistant) Secretary, of LaSalle National Bank, a national banking
association, on behalf of said national banking association.
/s/____________________________
Notary Public
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68
EXHIBIT A
Lot 3 in Oak Brook Development Company's Commerce Plaza Subdivision, Unit 2,
being a Subdivision of Part of Lot 1 in Xxxxxx Company M-1 Incorporated
Assessment Plat #1, of Parts of Sections 23 and 24, Township 30 North, Range
11, East of the Third Principal Meridian, According to the Plat thereof
recorded June 28, 1968 as Document R68-27679, in DuPage County, Illinois.
69
EXHIBIT A-A
CONTRACT OF PURCHASE AND SALE
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx
THIS CONTRACT (the "Contract") is made and entered into as of this ______
day of _____________, 19 ___ by and between _____________________________
________________________________________________________________________
_________________________________________________________________________
("Seller"), and _______________________________________________________
_________________________________________________________________________
_________________________________________________________________________
("Purchaser").
1. Sale.
Seller agrees to sell and convey to Purchaser and Purchaser agrees to
purchase from Seller, for the purchase price and on the terms and
conditions herein set forth, that certain two-story building located at 000
Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx (the "Project"), consisting of: (a) the
real estate legally described on Exhibit "A" attached hereto and made a
part hereof, together with all rights, easements and interests appurtenant
thereto including, but not limited to, all of Seller's right, title and
interest in any streets or other public ways adjacent to said real
property, before and after vacation thereof and all sidewalk vaults
adjacent thereto (the "Real Estate"); (b) all improvements located on the
Real Estate including, without limitation, the two-story building located
thereon (the "Improvements"); (c) all fixtures, equipment, supplies and
personal property owned by Seller located on or in the Real Estate or
Improvements or used in connection with the operation and maintenance of
the Real Estate or Improvements (the "Personal Property"); (d) all of
Seller's right, title and interest in all intangible property used or
useful in connection with the foregoing, including without limitation all
trademarks, tradenames, contract rights, guarantees, licenses, permits and
warranties (the "Intangible Personal Property"); and (e) Seller's interest
in all leases and other agreements to occupy the Improvements, or any
portion thereof, as amended from time to time (the "Leases").
2. Purchase Price.
The purchase price to be paid to Seller by Purchaser is $8,300,000.00 for
the Project (the "Purchase Price"). The Purchase Price, plus or minus
prorations, shall be paid at Closing (as hereinafter defined) by wire
transfer or other immediately available funds.
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3. Closing.
The purchase and sale contemplated herein shall be consummated at a closing
(the "Closing") to take place at the office of Chicago Title Insurance
Company (the "Title Insurer") at 000 X. Xxxxxxxxxx, Xxxxxxx, Xxxxxxxx, on
the date sixty (60) days after the date hereof, or at such other time as
the parties may agree upon in writing. The closing date in effect from time
to time shall be referred to as the "Closing Date." Seller shall deliver
possession of the Project to Purchaser at Closing.
For the purpose of this Contract, in computing any period of time
prescribed or allowed by this Contract, the day of the act or event from
which the designated period of time begins to run shall not be included,
but the last day of the period so computed shall be included, unless it is
a Saturday, a Sunday or a holiday as defined or fixed in any statute now
or hereafter in force in the State of Illinois, in which event the period
runs until and includes the next day which is not a Saturday, a Sunday or
such a holiday.
4. Xxxxxxx Money.
Purchaser has delivered to Seller its xxxxxxx money check in the amount of
$100,000.00, made payable to the Title Insurer (the "Xxxxxxx Money"), which
shall be deposited in a deed and money escrow at the Title Insurer pursuant
to a deed and money escrow agreement in the form then in use by the Title
Insurer as modified to conform with this Contract and, at the request of
Purchaser, shall be invested in accordance with Purchaser's directions. All
interest earned thereon shall accrue for the benefit of the Purchaser and
shall be paid to Purchaser upon Closing or the termination of this
Contract, unless the Xxxxxxx Money is paid to Seller as a result of
Purchaser's default, in which event the interest shall be paid to Seller.
Seller shall execute and deliver all documentation as requested by
Purchaser or the Title Insurer in order to effectuate the foregoing.
5. Feasibility Period.
The parties hereby acknowledge that this Contract is being executed
pursuant to an option to purchase the Project, as contained in Xxxxxxxxx
X-0 of that certain lease (the "GIS Lease") dated June __, 1987 by and
between LaSalle National Bank, not personally but as Trustee under Trust
Number 107194, and 000 Xxxxxxxx Xxxxx REIP, as landlord, and GIS
Information Systems, Inc., an Illinois corporation, as tenant. Pursuant to
the GIS Lease, Purchaser was granted a period of time (the "Feasibility
Period") during which it was allowed to inspect the Project prior to the
exercise of its option to purchase the Project. Notwithstanding anything to
the contrary contained in this Contract, no act or
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failure to act by Purchaser or its agents to verify the accuracy of
Seller's warranties and representations set forth in this Contract, shall
in any way affect the binding nature of such warranties and representations
nor the liability of Seller for any breach thereof.
6. Title and Survey Matters.
(a) No later than thirty (30) days after acceptance of this Contract by
Seller, Seller will deliver to Purchaser, at Seller's sole cost and
expense, (i) a title commitment (the "Title Commitment") dated on or
after the date hereof issued by the Title Insurer committing to issue to
Purchaser an ALTA Form B owner's policy of title insurance with respect
to the Project in a nominal amount (which shall be increased to the
amount of the Purchase Price, not later than fifteen (15) days prior to
Closing) showing fee simple title in Seller (the "Title Policy") and
(ii) copies of all documents, whether recorded or unrecorded, referred
to in the Title Commitment. The Title Commitment shall show title
subject only to (i) the general exceptions contained in the policy with
an extended coverage endorsement over general exceptions 1 through 5,
(ii) the title exceptions set forth in Exhibit "B" attached hereto and
made a part hereof (the "Permitted Exceptions"), and (iii) title
exceptions pertaining to liens or encumbrances of a definite or
ascertainable amount which may be removed by the payment of money at
Closing and which Seller may so remove at that time by using funds to be
paid upon delivery of the deed hereunder (the "Abatement Exceptions").
The Title Commitment shall also include a Restrictions Endorsement 1, a
Location Endorsement and a 3.1 Zoning Endorsement. If the Title
Commitment discloses any exceptions to title other than the Permitted
Exceptions and the Abatement Exceptions, and if Seller for any reason
cannot have such other exceptions waived or insured over (provided, that
if such exceptions can be waived or insured over they shall be deemed to
be "Abatement Exceptions") Purchaser, at its option may elect' by
notifying Seller within ten (10) days after receipt of the Title
Commitment, the aforesaid title documents and the Survey referred to in
subparagraph (b) below, to terminate this Contract in which event the
Xxxxxxx Money shall be returned to Purchaser and neither party shall
have any further liability to the other. If no such notice is given,
this Contract shall remain in full force and effect and any such other
exceptions shown in the Title.Commitment shall be deemed to be among the
"Permitted Exceptions" except that Seller shall, subject to the
provisions of subparagraph (d) below, at its sole cost, cause the
Abatement Exceptions to be removed or insured over prior to or at the
Closing. Seller shall, at its sole cost,
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cause the Title Commitment to be later dated effective as of fifteen
(15) days prior to Closing, said later dated Title Commitment to be
delivered to Purchaser no later than ten (10) days prior to Closing, and
cause the Title Policy to be issued as of the Closing Date to cover the
recording of the deed to be delivered by Seller, as provided herein.
(b) No later than thirty (30) days from the date of Seller's acceptance of
this Contract, Seller will deliver to Purchaser, at Seller's sole cost
and expense, six (6) prints of an as-built, spotted survey of the Real
Estate and Improvements (the "Survey") prepared by a surveyor registered
in the State of Illinois and certified by said surveyor to have been
prepared in accordance with minimum detail requirements of the American
Land Title Association land survey standards as of a date on or after
the date hereof, said certificate to be certified to Purchaser, its
nominee, lender and the Title Insurer. Without limitation of the
foregoing, the Survey shall state the legal description of the Real
Estate; the square footage thereof; shall show the location of the
Improvements (including distances from perimeter lot lines); all
easements and other agreements of record over the Real Estate; easements
or other agreements over property other than the Real Estate for the
benefit of the Project and shown in the Title Commitment; and adjacent
public streets and ways (showing name and width of street). The surveyor
shall also certify that the Real Estate is not located in a flood plain.
Any encroachment over a lot line, a prohibited encroachment over any
easement or any other matter shown on the Survey which other matter does
or could in the future materially interfere with the use, operation or
financing of the Project or render title thereto unmarketable is
referred to herein as a "Survey Defect." If the Survey contains any
Survey Defects, Purchaser may elect, by written notice delivered to
Seller within ten (10) days after receipt of the Survey to (i) terminate
this Contract, in which event, the Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further liability to the
other, or (ii) direct Seller to comply with the provisions of
subparagraph below.
(c) Seller shall deliver to Purchaser no later than twenty (20) days prior
to the Closing Date, at its sole cost and expense, searches, dated on or
after thirty (30) days before the Closing Date, of the records of the
Recorder of Deeds of DuPage County, Illinois and the Secretary of State
of Illinois for all UCC financing statements showing Seller and Seller's
management agent as debtor (the "Lien Searches").
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(d) In the event the later dated Title Commitment, Survey or Lien
Searches disclose any unpermitted claim, lien, encumbrance or other
defect, including without limitation Abatement Defects and Survey
Defects or the Title Insurer refuses to issue the endorsements
to the Title Policy described in subparagraph (a) above (the
"Defect"), Seller shall, prior to Closing, cause such Defect to be
removed or insured over by the Title Insurer not less than ten (10)
days prior to Closing, or such later time as Purchaser, in its sole
discretion, shall permit. If any Defect is not so removed or
insured over not less than ten (10) days prior to Closing, Purchaser,
may, at its sole option, either (i) terminate this Contract by
written notice to Seller, in which event the Xxxxxxx Money shall
be returned immediately to Purchaser, and neither party shall have
any further liability to the other, except that Seller shall be
liable to Purchaser for Purchaser's actual out-of-pocket expenses
incurred in connection with this Contract and the Feasibility Period,
or (ii) proceed to close the purchase of the Project and deduct
from the Purchase Price payable at Closing such sums as Purchaser
may deem necessary to remove, or cause the Title Insurer to insure
over, such Defect.
7. Seller's Representations and Warranties.
Seller represents and warrants to, and covenants with, Purchaser that the
following matters are and shall be true as of the date of execution of this
Contract and as of the Closing Date:
(a) The leases delivered to Purchaser during the Feasibility Period (the
"Leases") constitute the entire agreement with each tenant. No tenant
has any right to renew or extend its Lease except as shown on the rent
roll ("Rent Roll") delivered to Purchaser during the Feasibility Period
as the same have been or will be updated as required in the GIS Lease or
elsewhere in this Contract. There are no leases, tenancies, or other
rights of occupancy or use for any portion of the Project other than as
set forth in the Leases.
(b) None of the Leases and none of the rents or other amounts payable
thereunder have been assigned, pledged, or encumbered except to the
first mortgage lender; any such assignment, pledge or encumbrance will
be released at or prior to Closing unless Purchaser takes title to the
Project subject to such mortgage as provided elsewhere in this Contract.
There are no valid claims of offset or defenses to the payment of rents
and each of the tenants is in fact paying and performing and is legally
required to pay and perform all sums and obligations set forth in the
Leases.
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(c) Except as otherwise provided in Exhibit "C" attached hereto, no
brokerage or leasing commissions, management fees or other compensation
are due or payable to any person, firm, corporation, or other entity
with respect to or on account of any of the Leases or any extensions or
renewals thereof. Any such commissions, fees or other compensation as
are identified on Exhibit "C" shall remain the obligation of Seller and
Seller agrees to indemnify, defend and save harmless Purchaser from any
such liability. All brokerage or leasing commissions and tenant
build-out concessions and allowances payable in conjunction with any
Lease entered into on or after the date hereof, will be the
responsibility of Purchaser and shall be paid by Purchaser, except that,
if any tenant under any lease entered into on or after the date hereof
is required to make payments of rent after execution of this Contract
but prior to Closing, any commissions or concessions made with respect
to such lease shall be prorated at Closing.
(d) No tenant or other occupant under any of the Leases and no other person,
firm, corporation, or other entity has any right or option to acquire
the Property or any portion thereof.
(e) Except as otherwise provided in Exhibit "D" attached hereto, all
painting, repairs, alterations and other work expressly required to be
performed by the landlord under each of the Leases, and all of the other
obligations of the landlord thereunder which are required to be
performed prior to Closing (including but not limited to, all tenant
build-out work) (the "Tenant Work") have been fully performed and paid
for in full or will be fully performed and paid in full on or before the
Closing Date and all of the tenants under each of the Leases have
unconditionally accepted the space they are occupying in the Project.
All Tenant Work identified on Exhibit "D" as remaining to be completed
shall either be completed by Seller prior to Closing or Purchaser shall
be given a credit at Closing for the reasonably estimated expenses of
completing the Tenant Work.
(f) The Rent Roll and the updates thereof (including at the time of
Closing), are and shall be true and correct in all material respects.
(g) The statements of income and expense for the Project that are to be
furnished hereunder accurately represent the operations of the Project
for periods covered thereby and are and will be true and correct in all
material respects.
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(h) Except as otherwise provided in Exhibit "E" attached hereto, Seller
shall have received no written notices from fire or casualty insurance
carriers suggesting or requiring physical alterations to the
Improvements or any of its mechanical, electrical or plumbing systems,
which have not been corrected.
(i) Except as otherwise provided in Exhibit "F" attached hereto, there are
no service, executory or other contracts or collective bargaining
agreements or employment contracts (either oral or written) with respect
to the Project which are not cancellable on sixty (60) days' notice (the
"Contracts") and there are no recorded mechanics' or materialmens' liens
or claims for such liens affecting the Project or unrecorded mechanics'
or materialmens' liens or claims for such liens affecting the Project of
which Seller has received notice. Seller shall terminate all non-union
employees of the Project, who are not subject to any employment contract
identified in Exhibit "F", effective on or before Closing unless
Purchaser requests in writing not less than twenty-one (21) days prior
to Closing that any of such employees should not be terminated, in which
event the salaries and other benefits to which such employee(s) are
entitled shall be prorated at Closing.
(j) Except as otherwise provided in Exhibit "G" attached hereto, Seller has
no knowledge nor has received notice of any pending, threatened or
contemplated condemnation of the Project or any part thereof. The rights
of the parties with respect to any pending or threatened condemnation
proceeding identified on Exhibit "G" are governed by Paragraph 13 of
this Contract.
(k) In the event that Seller is comprised of a land trust and a beneficiary
thereof, Seller represents and warrants that the trust is the sole title
holder of the Project and that all parties executing this Contract on
behalf of Seller are executing this Contract with full power and
authority to execute and cause the consummation of this Contract. In
the event that Seller does not include a land trust, but instead is a
person, partnership or other entity, Seller represents and warrants
that it is the sole owner of the Project and is executing this
Contract with full power and authority to execute and cause the
consummation of the Contract. In either event, Seller represents,
warrants and covenants that there shall be no change in the ownership,
operation or control of Seller from the date hereof to the Closing and
Seller will not create any easements, liens or other encumbrances with
respect to the Project.
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(l) Seller represents, but does not warrant, that, except as otherwise
provided in Exhibit "H" attached hereto, Seller has not been advised of
and is not aware of any defect in the condition of the Project, or any
portion thereof, which has not been corrected or which will impair the
operation of the Project. To the best of Seller's knowledge without any
obligation on the part of Seller to investigate, there is no defect in
the Real Estate, the Improvements, the structural elements thereof, the
mechanical systems (including without limitation all heating,
ventilating, air conditioning, plumbing, electrical, elevator, security,
utility and sprinkler systems) therein or the roof. To the best of
Seller's knowledge, the Personal Property is in good operating
condition.
(m) To the best of Seller's knowledge, the Project and the use and operation
thereof are in compliance with all applicable municipal and governmental
laws, ordinances, regulations, licenses, permits and authorizations and
there are presently in effect all licenses, permits and other
authorizations necessary for the use, occupancy and operation of the
Project as it is presently being operated (the "Governmental
Approvals").
(n) Except as otherwise provided in Exhibit "I" attached hereto, there are
no pending or, to the best of Seller's knowledge, threatened judicial,
municipal or administrative proceedings affecting the Project or in
which Seller is or will be a party by reason of Seller's ownership of
the Project or any portion thereof, including without limitation,
proceedings for or involving tenant evictions, collections,
condemnation, eminent domain, alleged building code or zoning violations
or personal injuries or property damage alleged to have occurred on the
Project or by reason of the condition or use of the Project. To the
extent that any proceeding involving personal injury or property damage
exists or later arises due to an act or omission alleged to have
occurred prior to Closing, Seller agrees to indemnify, defend and save
harmless Purchaser from any liability arising therefrom. No attachments,
execution proceedings, assignments for the benefit of creditors,
insolvency, bankruptcy, reorganization or other proceedings are pending,
or to the best of Seller's knowledge, threatened, against Seller, any of
the entities comprising Seller, nor are any of such proceedings
contemplated by Seller, or any of the entities comprising Seller.
(o) Seller represents, but does not warrant, that, except as otherwise
provided in Exhibit "J" attached hereto, to the best of Seller's
knowledge without any obligation on the part of Seller to investigate,
there is no asbestos
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or other material of a hazardous, toxic or dangerous nature contained
within the Project or any component part thereof, including but not
limited to, any pipes, ducts, paint, tiles or equipment.
(p) Seller's execution of and performance of this Contract shall not
constitute a breach of any agreement, understanding, order, judgment or
decree, written or oral, to which any of the entities constituting Seller
is a party.
The continued validity in all respects of all representations and warranties
set forth in this Contract shall be conditions precedent to Purchaser's
obligations hereunder, which conditions precedent may be waived in writing
in whole or in part by Purchaser in its sole discretion. The obligation of
Purchaser to consummate this Contract and the transactions contemplated
hereby is further subject to the condition precedent that all
representations and warranties set forth in this Contract shall be true and
correct on and as of the Closing with the same force and effect as if made
at that time. In the event that any representation or warranty is determined
to be inaccurate on or before the Closing Date, Seller shall take such
action as is necessary to remedy the situation causing such inaccuracy.
Seller shall deliver an affidavit or certificate to Purchaser at Closing
remaking all representations and warranties as of the Closing. With respect
to Seller's knowledge relating to the representations and warranties
contained in this Paragraph 7, Seller is under no obligation to
independently investigate and Seller's failure to independently investigate
will not impute knowledge to Seller.
8. Covenants of Seller.
Seller hereby covenants with Purchaser, as follows:
(a) In the event that after the date hereof, Seller receives notice from any
governmental body having jurisdiction over the Project of a building code
or other violation, it shall immediately notify Purchaser, send a copy of
such notice to Purchaser, Seller shall promptly commence to repair and
cure such violation and prosecute the repairs to the Closing with due
diligence or otherwise commence to remove such violation of record with
due diligence. In the event such repairs (if necessary) are not completed
prior to the Closing Date, Seller shall furnish to Purchaser at the
Closing, proof of payment for the repairs theretofore made and shall
credit Purchaser with a closing adjustment equal to the amount necessary
to complete the repairs pursuant to the terms of the contract entered
into for such repair work. Such contract shall be entered into with a
reputable contractor unaffiliated with Seller and provide for
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compensation at no greater than reasonably prevailing market rates for
the area in which the Project is located. Such contract shall be assigned
to Purchaser at Closing. Notwithstanding the foregoing, if the building
code or other violation results in a cost to Seller in excess of
$400,000.00, Seller may, within fifteen (15) days after receipt of such
notice from a governmental body, give notice to Purchaser of its intent
to terminate this Contract, subject to Purchaser's right to prevent any
such termination by giving notice to Seller, within ten (10) days after
its receipt of Seller's notice, agreeing to pay all such costs in excess
of $400,000.00, in which event, this Contract shall remain in full force
and effect. In the event that Purchaser fails to so notify Seller, this
Contract shall terminate, in which event the Xxxxxxx Money shall be
returned to Purchaser, and neither party shall have any further liability
to the other, except that Seller shall be liable to Purchaser for
Purchaser's actual out-of-pocket expenses incurred in connection with this
Contract and the Feasibility Period.
(b) In addition to, but not in limitation or derogation of the above, Seller
shall execute and deliver to Purchaser at Closing an assignment or
assignments assigning to Purchaser all existing assignable guarantees and
warranties issued or made in connection with the construction,
improvement, alteration and repair of any improvements or personal
property comprising a part of the Project, together with the original of
each such guaranty and warranty in Seller's possession, if any.
(c) Prior to Closing and except as otherwise provided herein, unless Seller
obtains the prior written consent of Purchaser, which consent shall not
be unreasonably withheld or delayed, Seller shall neither execute any new
lease nor renew or modify any existing Lease. Withholding of consent by
Purchaser shall be deemed to be reasonable if the terms of any proposed
new lease or renewal or modification of any existing Lease do not comport
with current rental market standards in Oak Brook, Illinois. Subject to
the foregoing, Seller shall use reasonable efforts to obtain tenants for
all space which is now vacant or which will become vacant prior to the
end of the month following the Closing. Seller shall use its best efforts
to obtain renewals of existing Leases which expire prior to closing.
Without the prior written consent of Purchaser, which shall not be
unreasonably withheld, Seller shall not terminate any of the Leases,
unless the tenant thereunder shall have materially defaulted. Seller
shall not accept from any of the tenants payment of rent more than one
month in advance or apply any security deposit to rent due from any
tenant. At Closing the security deposit provided for
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under each of the Leases and all interest accrued thereon, if any, shall
be fully assigned to Purchaser.
(d) Prior to Closing, Seller shall not enter into any contract with respect
to the Project which will survive the Closing or otherwise affect the
use, operation or enjoyment of the Project after the Closing. Further,
Seller will deliver to Purchaser copies of any notices it receives from
the DuPage County, Illinois Assessor's Office with respect to a change in
the assessed valuation of the Real Estate and Improvements.
(e) The existing insurance policies pertaining to the Project shall remain
continuously in force to the Closing Date.
(f) Seller shall operate and manage the Project in a first class manner,
maintaining present services (including pest control), and shall
maintain the Project in good repair and working order (including such
replacements as may be required), shall keep on hand sufficient
materials, supplies, equipment and other personal property for the
efficient operation and management of the Project in a first class
manner, and shall perform when due all of Seller's obligations under the
Leases, Contracts, Governmental Approvals and other agreements relating
to the Project and otherwise in accordance with applicable laws,
ordinances, rules and regulations affecting the Project. Except as
otherwise provided herein, Seller shall deliver the Project at Closing in
substantially the same condition as it is on the date hereof, reasonable
wear and tear excepted, and shall terminate the Contracts, effective as
of the Closing Date, except those of the Contracts designated in writing
by Purchaser prior to Closing. None of the Personal Property or fixtures
shall be removed from the Project, unless replaced by personal property
or fixtures of equal or greater utility and value.
(g) In the event that any Lease terminates prior to Closing, Seller shall
consult with Purchaser as to the extent of enforcement of any
requirements in the Lease with respect to the condition of the leased
premises upon surrender of the leased premises. All debris shall be
removed from any vacant space.
(h) Except for brokerage or leasing commissions for Leases entered into after
the date hereof, Seller has paid or will pay in full, prior to Closing,
all bills and invoices for labor, goods, material and services of any
kind relating to the Project and utility charges, relating to the period
prior to Closing. Except as provided elsewhere in this Contract, any
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Tenant Work and other work required to be performed under the Leases or
other agreements affecting the Project have been or will by the Closing
be completed and paid for in full. Any brokerage fee or similar
commission which is or will become due and payable in connection with any
Lease entered into prior to the date hereof has been or will be paid by
Seller prior to Closing.
(i) All action required pursuant to this Contract which is necessary to
effectuate the transaction contemplated herein will be taken promptly and
in good faith by Seller, and Seller shall furnish Purchaser with such
documents or further assurances as Purchaser may reasonably require.
(j) Except as otherwise provided herein, after the date hereof and prior to
Closing, no part of the Project, or any interest therein, will be
alienated, liened, encumbered or otherwise transferred except as
otherwise provided herein.
(k) From and after the date hereof through Closing, Seller agrees to furnish
to Purchaser monthly, upon preparation thereof, updated rent rolls and
operating statements for the Project.
All covenants made in this Contract by Seller shall survive the Closing and
shall not be merged into any deed or other instrument of conveyance
delivered at Closing.
9. Conditions Precedent to Closing.
The following shall be conditions precedent to Purchaser's obligation to
close hereunder (the "Conditions Precedent"), which Conditions Precedent may
be waived in writing by Purchaser in its sole discretion in whole or in
part:
(a) The physical condition of the Project shall be substantially the same on
the Closing Date as on the date hereof, reasonable wear and tear
excepted, unless the alteration of said physical condition is the result
of a Casualty (as defined herein).
(b) At Closing, there shall be no administrative agency, litigation or
governmental proceeding of any kind whatsoever, pending or threatened,
which, if not bonded over to Purchaser's reasonable satisfaction prior to
Closing, after Closing would in Purchaser's sole, reasonable discretion
adversely affect the value of the Project, or the ability of Purchaser to
operate the Project in the manner it is being operated on the date
hereof.
(c) On the Closing Date, no proceedings shall be pending or threatened which
could or would involve the change,
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redesignation, redefinition or other modification of the zoning
classification of (or any building or environmental code requirements
applicable to) the Project, or any portion thereof.
(d) As of the Closing Date, the warranties, representations and covenants of
Seller hereunder shall be true and correct and Seller shall have
performed all of its covenants and obligations hereunder.
(e) As of the Closing Date, the information set forth on the exhibits
attached hereto is true and correct.
10. Prorations and Adjustments.
The following shall be prorated and adjusted between Seller and Purchaser
as of the Closing Date, except as otherwise specified:
(a) Mortgage principal balance and accrued and unpaid interest (in the event
Purchaser takes title to the Project subject to Seller's existing first
mortgage as provided in this Contract), rents and other charges collected
by Seller for the month of Closing (and succeeding months), security
deposits, prepaid service contracts, maintenance and operating employees'
wages, maintenance and operating employees' accrued rights, if any, under
union contracts to paid vacations, general real estate taxes, special
assessments, and other similar items shall be adjusted ratably as of the
Closing. General real estate taxes shall be prorated on the basis of the
last ascertainable tax xxxx, but shall be reprorated when the actual tax
bills therefor issue. Seller shall be entitled to all tax refunds, if
any, obtained on account of taxes paid for the years preceding the
Closing, and a prorata portion of tax refunds for the year of Closing,
less the amount, if any, of Seller's prorata share of such funds expended
by Purchaser in obtaining such refunds. Purchaser shall receive credit
for advance rents beyond the then current month and for security deposits
under the Leases. None of the security deposits may be applied by Seller
to delinquent rents. There shall be no proration credit to Seller for
delinquent rents and other charges (the "Delinquent Rents"), except that
rents that are not more than thirty (30) days delinquent that are due
from tenants who are not more than thirty (30) days delinquent in the
payment of rent shall be prorated, but settlement between the parties
shall be made only when such amounts have actually been collected. After
Closing, Seller shall not take any action against any tenant owing
Delinquent Rents. For a period of thirty (30) days after Closing,
Purchaser shall use reasonable efforts to collect Delinquent Rents but
such undertaking shall not
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be deemed to obligate Purchaser to expend any funds or institute legal
proceedings of any kind. Rents and other amounts received by Purchaser
after Closing from a tenant owing Delinquent Rents shall be applied (i)
first, to all of Purchaser's costs of collection incurred with respect to
such tenant (including reasonable attorneys' fees), (ii) second, to rents
due for the month in which such payment is received by Purchaser, (iii)
third, to rents attributable to any period after Closing which are past
due on the date of receipt, and (v) then to Delinquent Rents. Seller
shall promptly remit to Purchaser and account for all sums received by
Seller from tenants after Closing and Purchaser shall promptly remit to
Seller and account for all sums received by Purchaser from tenants after
closing which, pursuant to this subparagraph, are to be applied to
Delinquent Rents or are otherwise to be paid to Seller. All percentage
rents and additional rents, if any, payable under any of the Leases,
shall be prorated as of the Closing based on respective periods of
ownership during the lease year covered thereby, but reprorated and paid
when and as received.
(b) In lieu of prorating electricity, gas, water and other public utilities
due to the utility companies, Seller shall arrange for the rendition of
final bills as of the Closing Date or as near as possible thereto by the
respective utility companies, and Seller shall pay such bills as and when
rendered. As to charges to tenants for such public utilities, Seller
shall also arrange for the rendition of bills to tenants as of the
Closing Date or as near as possible thereto, and Seller shall be
entitled to remittances from Purchaser of such charges as and when
collected from tenants in accordance with the provisions of subparagraph
(a) above. In any event, all master meters and submeters shall be read
within a period of three consecutive days.
(c) The Project shall be operated for the benefit of Seller until the Closing
Date. After Closing, the Project shall be operated for the benefit of
Purchaser. Solely for purposes of the prorations to be made hereunder the
Closing shall be deemed to occur at 11:59 p.m. on the day prior to the
Closing Date. All such prorations shall be made on the basis of the
actual number of days elapsed as of the Closing Date. Bills received
after Closing which relate to expenses incurred prior to Closing or
services performed at the direction of Seller prior to Closing shall be
paid by Seller.
11. Escrow.
This transaction shall be closed through an escrow (the "Escrow") with the
Title Insurer, in accordance with the general provisions of the usual form
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of Deed and Money Escrow Agreement then in use by the Title Insurer, with
such special provisions inserted in the escrow agreement as may be required
to conform with this Contract. Payment of the purchase price and delivery
of the deed and other documents to be delivered hereunder shall be made
through the Escrow. The cost of the Escrow shall be divided equally between
Seller and Purchaser. Purchaser shall be solely responsible for the cost
of any money lender's escrow required by its lender, if any, in connection
with the Closing. The attorneys for Seller and Purchaser are authorized to
execute the escrow agreement, any amendments thereto and all directions or
communications thereunder. The escrow agreement shall be auxiliary to this
Contract and the terms and provisions hereof shall be controlling as
between the parties hereto. The escrow agreement shall be executed by the
parties within fifteen (15) days from the date hereof and upon creation of
the Escrow, the Xxxxxxx Money shall be immediately deposited therein. At
Closing, the Xxxxxxx Money shall be returned to Purchaser.
12. Closing Documents.
At the Closing, Seller shall do or perform the following:
(a) Execute, acknowledge and deliver to Purchaser a warranty deed or
Trustee's Deed (if appropriate) sufficient to convey fee simple title to
the Real Estate and Improvements to Purchaser or its nominee, subject
only to the Permitted Exceptions, which shall be in form for recording.
(b) Execute, acknowledge and deliver to Purchaser an assignment and xxxx of
sale, assigning, conveying and warranting to Purchaser title to the
Personal Property and the Intangible Personal Property, free and clear of
all liens and encumbrances other than the Permitted Exceptions.
(c) Execute, acknowledge and deliver to Purchaser two counterparts of an
assignment in recordable form) by Seller of the Leases to Purchaser,
together with an agreement by Seller to indemnify, protect, defend and
hold Purchaser harmless from and against any and all claims, damages,
losses, costs and expenses (including attorneys' fees) arising in
connection with the Leases relating to the period prior to Closing,
including without limitation, claims for the return of security deposits
held with respect to the Leases and those leases of the Project which
expired prior to Closing, to the extent that such security deposits are
not credited to Purchaser at Closing. Said assignment shall be
accompanied by the original or duplicate original of each such Lease,
as the same may have been amended or modified.
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(d) Execute, acknowledge and deliver to Purchaser letters to each of the
tenants of the Project advising of the sale of the Project to Purchaser,
notifying and directing payment of all rent and other sums due from
tenants, from and after the Closing Date to be made to Purchaser or at
its direction, in form prepared by Purchaser and approved by Seller,
which approval shall not be unreasonably withheld.
(e) Deliver to Purchaser executed assignments by Seller of all of its rights
and interests under all Contracts, which Purchaser elects to keep in
effect, together with the original or duplicate original (or copies if no
original is available) thereof.
(f) Deliver to Purchaser estoppel letters in form prepared or approved by
Purchaser from each tenant under the Leases, certifying, among other
things, that the applicable Lease is (i) unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that the Lease as so modified is in full force and effect),
and the date to which the rent and other charges are paid in advance, if
any, (ii) acknowledging that there are not, to such tenant's knowledge,
any uncured defaults on the part of landlord thereunder, or specifying
such defaults if any are claimed, (iii) setting forth the date of
commencement of the lease term, the date of commencement of rent
thereunder, the expiration of the lease term, and all renewal rights, and
(iv) acknowledge that such tenant has no right to acquire any other
interest in such space, including, but not limited to any fee interest,
pursuant to such lease or otherwise. Further, Seller shall furnish to
Purchaser photocopies of all checks received from tenants under Leases
for their rent payments for the month of Closing or the most current rent
payment period and landlord estoppel letters, if no tenant estoppel
letters are obtained.
(g) Execute, acknowledge and deliver to Purchaser the affidavit or
certificate relating to Seller's representations and warranties
contemplated by Paragraph 7 above.
(h) Deliver to Purchaser copies of any building plans and specifications in
Seller's possession.
(i) Deliver possession of the Project subject, however, to the rights of
tenants under their respective Leases.
(j) Deliver to Purchaser all Governmental Approvals and copies of all
certificates issued by the local board of fire underwriters (or other
body exercising similar
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functions), and the original of each xxxx for current real estate taxes,
together with proof of payment thereof (if any of the same have been
paid).
(k) Deliver keys to all locks located in the Project (and an accounting for
keys in possession of others) subject, however, to the rights of tenants
under their respective Leases.
(l) Execute, acknowledge and deliver an Affidavit of Title.
(m) The Title Policy issued by the Title Insurer in the amount of the
Purchase Price, with such endorsements and otherwise in accordance with
the requirements of Paragraph 6(a) above, with all exceptions other than
the Permitted Exceptions deleted (it being understood that Seller will
induce the Title Insurer to insure over any "gap" period resulting from
any delay in recording of documents or later dating the title insurance
file).
(n) Execute and deliver in triplicate a closing statement conforming to the
proration and other relevant provisions of this Contract (the "Closing
Statement").
(o) Execute and deliver State, County and Municipal transfer declarations, if
required. Seller shall pay the amount of any stamp tax imposed by state
and/or county law on the transfer of title and Purchaser shall pay the
amount of any stamp tax imposed by the Village of Oak Brook.
(p) Execute and deliver ALTA Statements.
(q) Execute and deliver such other documents or instruments as in the
reasonable opinion of counsel for Purchaser or the Title Insurer may be
necessary or desirable to effectuate the Closing.
(r) File in a timely manner a Notice of Sale/Purchase of Business Assets (and
furnish a copy to Purchaser) on Form 542-A of the Illinois Department of
Revenue (Bulk Sales Unit) pursuant to Section 902(d) of the Illinois
Income Tax Act and Section 444(j) of the Retailers' Occupation Tax Act
(or such successor forms or statutes as may then be in effect) in order
to obtain an appropriate release or stop order to protect Purchaser
against any potential personal liability for income tax or sales tax
liabilities of Seller arising out of the sale of the Project.
(s) Execute and deliver such documents as are necessary or appropriate to
allow Purchaser to comply with Section 1445 of the Internal Revenue Code
(or such successor statute as may then be in effect) regarding tax
withholding on the sale of U.S. real property by a foreign
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person or execute and deliver such certificates or affidavits as are
appropriate regarding exemption from such requirements.
(t) Execute and deliver such other instruments and documents specifically
required to be delivered by Seller under the terms of this Contract
whether or not expressly enumerated in this Paragraph 12 as well as such
other documents or instruments as in the reasonable opinion of counsel
for Purchaser and counsel for Seller or the Title Insurer may be
necessary or desirable to effectuate the Closing.
All of the documents and instruments to be delivered by Seller hereunder
shall be in form and substance reasonably satisfactory to counsel for
Purchaser and counsel for Seller.
At or prior to the Closing, Purchaser shall do or perform the following:
(aa) Pay the Purchase Price as required hereunder.
(bb) Execute and deliver counterparts of the Closing Statement.
(cc) Execute and deliver ALTA Statements.
(dd) Execute and deliver assumptions of the aforementioned assignments of
Leases and Contracts. Anything in this Contract to the contrary
notwithstanding, as to all Leases and Contracts to be assigned to
Purchaser under this Contract, Purchaser shall assume the performance of
all obligations accruing from and after the Closing except as otherwise
provided hereunder, and shall indemnify and save Seller harmless from and
against any claims, liabilities and expenses in connection therewith;
provided that Seller shall remain liable for the performance of all
obligations accrued prior to the Closing or otherwise to be performed by
Seller hereunder, and shall indemnify and save Purchaser harmless in
connection with any claims, liabilities and expenses in connection
therewith.
(ee) Execute and deliver such other documents or instruments as in the
reasonable opinion of counsel for Seller and counsel for Purchaser or the
Title Insurer may be necessary or desirable to effectuate the Closing.
All of the documents and instruments to be delivered by Purchaser shall be
in form and substance reasonably satisfactory to counsel for Seller and
counsel for Purchaser.
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13. Eminent Domain.
In the event that, prior to Closing, any eminent domain proceeding
affecting the Project is commenced or threatened by a governmental body
having the power of eminent domain, Seller shall immediately give Purchaser
written notice thereof. If the proceeding affects or will affect portions
of the Project, the loss of which would not adversely affect the use
thereof or result in a diminution of value of the Project of more than
$50,000.00, then the Closing shall take place as provided in this Contract
and at Closing Seller shall assign to Purchaser all right, title and
interest with respect to such proceeding and awards, damages or other
compensation arising from such proceeding. If the proceeding affects or
will affect portions of the Project, the loss of which would adversely
affect the use thereof or result in a diminution of value of the Project of
more than $50,000,00 then Purchaser may elect by written notice to Seller
to (i) terminate this Contract in its entirety, by written notice to
Seller, in which event the Xxxxxxx Money shall be returned immediately to
Purchaser and neither party will have any further liability to the other
hereunder or (ii) proceed to close the purchase of the Project, in which
event Seller shall assign to Purchaser at Closing all of Seller's right,
title and interest with respect to such proceeding. Unless or until this
Contract is terminated in its entirety pursuant to this Paragraph 13 or
otherwise, Seller shall take no action with respect to any pending or
threatened eminent domain proceeding without the prior written consent of
Purchaser.
14. Insurance, Risk of Loss.
At all times prior to Closing, Seller shall maintain the existing casualty
and liability insurance on the Project in full force and effect. Prior to
the Closing Date, and not withstanding the pendency of this Contract, the
entire risk of loss or damage to the Project by fire or other casualty is
borne and assumed by Seller, except as otherwise provided in this Paragraph
14. If all or a portion of the Project is destroyed or damaged by one or
more fires, windstorms, hurricanes, hailstorms, floods, explosions,
earthquakes, sinkholes or other casualties (collectively, the "Casualties")
prior to Closing, Seller shall give Purchaser prompt notice thereof. In the
event one or more Casualties shall occur prior to Closing, then the
following provisions shall apply:
(a) If the reasonably estimated cost of restoration of the Project is less
than $100,000.00, Seller shall use its best efforts to restore, prior to
Closing, the Project to its previous condition. If Seller is unable to
complete said restoration prior to Closing, Purchaser shall be entitled
to elect by written notice to Seller prior to Closing either (i) to
receive a proration credit
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against the cash due at Closing for the cost of restoration to be
incurred by Purchaser (notwithstanding anything to the contrary in
Paragraph 10 above), or (ii) to accept an assignment from Seller to
Purchaser of all of Seller's rights with respect to all insurance
proceeds receivable in respect of such Casualties and to receive a
proration credit against the cash due at Closing equal to all deductibles
therefrom (notwithstanding anything to the contrary in Paragraph 10
above). In the event Purchaser elects the option set forth in clause (i)
of the preceding sentence, Seller shall be entitled to retain all
insurance proceeds with respect to such Casualties.
(b) If the reasonably estimated cost of restoration of the Project is
$100,000.00 or more, Seller shall promptly take such action as is
required to secure the damaged portion of the Project and protect it from
further damage and promptly file all appropriate claims under its
insurance policies and in good faith negotiate the highest possible
settlement amount from the insurers. Purchaser shall have the right to
participate in the adjustment of the claim. Seller shall notify Purchaser
promptly in writing of the settlement amount which Seller proposes to
accept. At any time prior to fifteen (15) days following receipt of such
notice, Purchaser may elect in a written notice to Seller (it being
understood that Purchaser may make the following election prior to the
receipt of Seller's notice) either:
(i) to proceed with the Closing, in which event, the insurance
proceeds shall be assigned to Purchaser at Closing (with
any proceeds paid to Seller prior to Closing to be credited
to Purchaser) and Purchaser shall receive a proration
credit against the cash due at Closing equal to all
deductibles therefrom (notwithstanding anything to the
contrary in Paragraph 10 above); or
(ii) to terminate this Contract by written notice to Seller, in
which event the Xxxxxxx Money shall be returned to
Purchaser, and neither party shall have any further
liability to the other hereunder.
The date set for Closing shall be extended, if necessary, to accommodate
the notice periods provided for in this Paragraph 14. All restoration work
performed pursuant to this Paragraph 14 shall be performed using first
class materials and highest quality workmanship. Purchaser shall have the
right to inspect the work performed by or at the direction of Seller. If
the Project has not been fully restored by the time the Closing occurs,
Purchaser shall receive a proration
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credit at Closing (notwithstanding anything to the contrary in Paragraph 10
above) for all rents abated by reason of said casualty and which otherwise
would have been due with respect to the period between the Closing Date and
the estimated date of completion of the work.
15. Broker's Commission.
If the sale is consummated and the Purchase Price paid to Seller, Seller
agrees to pay a real estate sales commission of four (4%) percent of the
Purchase Price as follows: two (2%) percent to Irvine Associates Inc. and
two (2%) percent to LaSalle Mortgage and Realty Company, Inc. (the
"Brokers"), the only real estate brokers involved in this transaction. Each
of the parties represents and warrants to the other that it has not
incurred and will not incur any other liability for brokerage fees or
commissions in connection with this Contract. It is agreed that if any
claims for brokerage fees or commissions are ever made against Seller or
Purchaser in connection with this transaction, all such claims shall be
handled and paid by the party (the "Committing Party") whose actions or
alleged commitments form the basis of such claim. The Committing Party
further agrees to indemnify and hold the other harmless from and against
any and all such claims or demands with respect to any brokerage fees or
commissions or other compensation asserted by any person, firm, or
corporation other than the Brokers, in connection with this Contract or the
transaction contemplated hereby.
16. Survival.
The terms, provisions, representations, warranties and covenants made
herein shall be continuing and shall survive for a period of one year from
the date of Closing and shall not merge into the Closing or the delivery of
deeds and other instruments of conveyance; provided, however, that the
obligation of either party contained in Paragraphs 7(c), 8(h) and 15 of
this Contract to indemnify, defend and save harmless the other party from
liabilities arising from events occurring or alleged to have occurred prior
to Closing shall not be subject to the one-year limitation set forth
herein.
17. Default.
(a) In addition to the specific rights of Purchaser to terminate this
Contract as provided in Paragraph 6(d) hereof and other rights incidental
thereto, if any of Seller's representations and warranties contained
herein shall not be true and correct, or if Seller failed to perform in
any material respect any of the covenants and agreements contained herein
to be performed by Seller within the time for performance as specified
herein
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(including Seller's obligation to close), Purchaser may elect to (i)
terminate Purchaser's obligations under this Contract by written notice
to Seller, in which event the Xxxxxxx Money shall be returned immediately
to Purchaser, or (ii) close, in which event Purchaser may file an action
for specific performance of this Contract to compel Seller to close the
transactions contemplated by this Contract and/or cure such default, in
whole or in part, in which event Purchaser shall be entitled to deduct
from the Purchase Price the cost of such action and/or the actual or
reasonably anticipated cost to cure such defects as well as any and all
reasonable expenses incurred by Purchaser in connection therewith
including attorneys' fees, provided such deduction does not exceed
$100,000.00; or (iii) refuse to close by written notice to Seller, in
which event the Xxxxxxx Money shall be returned immediately to Purchaser,
and Purchaser shall be entitled to pursue all available rights and
remedies at law or equity against Seller, provided, however, that
Seller's liability to Purchaser for damages at law shall not exceed
$100,000.00. The remedies of Purchaser set forth in this Paragraph 17(a)
shall be in addition to remedies otherwise applicable or provided in this
Contract, it being understood that Purchaser's rights and remedies under
this Contract shall be non-exclusive and cumulative and that the exercise
of one remedy or form of relief available to Purchaser hereunder shall
not be exclusive or constitute a waiver of any other, except that
Seller's total liability for damages shall not exceed $100,000.00. No
act, event, or state of facts, whether constituting a default or event of
default under the GIS Lease or not shall be available to Seller as a
defense to any remedy sought by Purchaser pursuant to this Section 17.
(b) In the event Purchaser defaults in its obligation to close the purchase
of the Project for any reason, the Xxxxxxx Money shall be delivered to
Seller, the amount thereof being liquidated damages, it being understood
that Seller's actual damages in the event of such default are not capable
of precise determination and that the forfeiture of the Xxxxxxx Money
shall be Seller's sole and exclusive remedy for Purchaser's default.
(c) Anything contained herein to the contrary notwithstanding, if any party
hereto fails to perform any obligation hereunder, or violates the terms
of this Contract, such party shall be entitled to receive notice of such
default and shall be entitled to five (5) days from the date of such
notice in which to cure such default specified. The Closing Date shall
be extended accordingly.
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18. Existing First Mortgage.
In the event that the existing first mortgage encumbering the Project (the
"Mortgage") cannot, by its terms, be prepaid by Seller at Closing,
Purchaser hereby agrees to take title to the Project subject to the lien of
the Mortgage; provided, however, that (i) Purchaser shall not assume any
liability under the Mortgage or the note (the "Note") secured by the
Mortgage; (ii) any penalties, premiums, fees or charges imposed with
respect to the conveyance of the Project to Purchaser subject to the lien
of the Mortgage shall be paid by Seller; and (iii) any consent required
with respect to the conveyance of the Project to Purchaser subject to the
lien of the Mortgage shall be obtained by Seller. Seller shall provide
Purchaser with a true and complete copy of the Note at least ten (10) days
prior to Closing and Seller shall certify to Purchaser in writing as to the
truth and accuracy of such copy of the Note. In the event that this
Paragraph 18 is in effect, it shall be a Condition Precedent to Purchaser's
obligation to close hereunder, which Condition Precedent may be waived in
writing by Purchaser in its sole discretion in whole or in part, that
Seller shall deliver to Purchaser at Closing, in addition to the other
documents to be delivered to Purchaser hereunder an estoppel letter or
statement from the holder of the Note (a) stating the unpaid principal
balance of the Note; (b) stating the date through which interest has been
paid; (c) stating the existence and amount of any escrows and reserve
accounts; (d) stating that no uncured default exists under the terms of the
Note and Mortgage; (e) consenting to the conveyance of the Project to
Purchaser subject to the lien of the Mortgage; and (f) agreeing to accept
payments due under the Note from Purchaser and to give notice of any
defaults under the Note or Mortgage (or any related documents) to
Purchaser.
19. Notices.
All notices required or desired to be given hereunder shall be in writing
and shall be delivered personally, by a nationally recognized air courier
or by certified or registered mail and, shall be deemed given when
personally delivered, the day following delivery to a nationally recognized
air courier, or if mailed, two (2) days after deposit, postage prepaid, in
the United States Post Office facilities, addressed as follows:
(a) If to Purchaser: --------------------------
--------------------------
--------------------------
--------------------------
92
With a copy to: --------------------------
--------------------------
--------------------------
--------------------------
and Xxxxxxxx Xxxxxx & Xxxxxxxxxx, Ltd.
00 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
(b) If to Seller: --------------------------
--------------------------
--------------------------
--------------------------
and --------------------------
--------------------------
--------------------------
--------------------------
With a copy to: Xxxx, Xxxxxxx & Xxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx, Esq.
or to such other address as either party may from time to time designate by
written notice to the other party.
20. Successors and Assigns.
The terms, conditions and covenants of this Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective
nominees, successors, beneficiaries and assigns; provided, however, no
conveyance, assignment or transfer of any interest whatsoever of, in or to
the Project or of this Contract shall be made by Seller during the term of
this Contract. Purchaser may assign all or any of its right, title and
interest under this Contract. In the event of such an assignment by
Purchaser, the assignee shall be deemed to be the Purchaser hereunder for
all purposes hereof and have all rights of Purchaser hereunder and the
assignor shall be released from all liability hereunder, but such
assignment shall not affect the remedy of Seller under Paragraph 17(b).
21. Miscellaneous.
(a) This Contract constitutes the entire understanding between the parties
with respect to the transaction contemplated herein, and all prior or
contemporaneous oral agreements, understandings, representations and
statements, and all prior written agreements, understandings,
93
representations and statements are merged into this Contract. Neither
this Contract nor any provisions hereof may be waived, modified, amended,
discharged or terminated except by an instrument in writing signed by the
party against which the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the
extent set forth in such instrument.
(b) The obligations of Purchaser to make the payments to close the
transaction described herein are subject to the express conditions
precedent set forth in this Contract (the "Conditions Precedent"), each
of which is for the sole benefit of Purchaser and may be waived at any
time by written notice thereof from Purchaser to Seller. The waiver of
any particular Condition Precedent shall not constitute the waiver of any
other.
(c) Relative to each representation and warranty made by Seller in this
Contract, Seller shall make reasonable inquiries as to the accuracy
thereof to its employees, managers, agents and other appropriate parties
and the actual on constructive knowledge of such parties will be imputed
to Seller.
(d) This Contract shall not be construed more strictly against one party than
against the other merely by virtue of the fact that it may have been
prepared by the attorney for one of the parties. The headings of various
paragraphs in this Contract are for convenience only, and are not to be
utilized in construing the content or meaning of the substantive
provisions hereof.
(e) This Contract shall be governed by and construed in accordance with the
laws of the State of Illinois.
(f) At all reasonable times from and after the date hereof to Closing,
Purchaser shall, upon reasonable notice to Seller, be entitled to enter
upon the Real Estate and Improvements; provided, however, that Purchaser
shall
94
not unreasonably interfere with other tenants' use of their demised
premises.
IN WITNESS WHEREOF, the parties have executed this Contract as of the day and
year first above written.
PURCHASER: SELLER:
/s/ Signature /s/ Signature
----------------------------------- ------------------------------
By: By:
------------------------------- --------------------------
Its: Its:
--------------------------- ----------------------
Executed on , 19 Executed on , 19
------------- --- ---------- ---
95
EXHIBIT "A"
Legal Description
96
EXHIBIT "B"
Permitted Exceptions
97
EXHIBIT "C"
Brokerage or Leasing Commissions,
Management Fees, Other Compensation
98
EXHIBIT "D"
Tenant Work
99
EXHIBIT "E"
Insurance Notices
100
EXHIBIT "F"
Contracts
101
EXHIBIT "G"
Condemnation Notices
102
EXHIBIT "H"
Defects
103
EXHIBIT "I"
Legal Proceedings
104
EXHIBIT "J"
Hazardous Materials
105
ADDENDUM EXHIBIT A-C
UNIT
DESCRIPTION QUANTITY UNIT PRICE EXT TOTAL
----------- -------- ---- ----- --- -----
Demolition
Partitions 360 LF 10 3,600
Ceiling Remove tile 4,051 SF .25 1,013
Carpet 4,051 SF .40 1,620
Electric 750 6,983
Partitions
INT STD 89 LF 21.50 1,914
Corridor Patch 12 LF 46 552 2,466
Ceiling 2X2 Regress 4,051 SF 1.45 5,874
Doors (To Match Existing)
INT STD Reuse 5 ED 225 1,125
Closet Bipass 1 XXXX 000 000
Xxxxxxx - Xxxxxx 1 UNIT 650 650 2,225
Millwork
Pantry Labs and Counter - LF 185
Has Shelf and Pole 8 LF 18 144 144
Glazing (Set in Wood Frame) - LF 175
Vinyl Base
Wall Existing
Remove & Replace 452 LF 1.50 588
New Part 178 LF 1.05 187 775
Decorating
Walls 5,670 SF .30 1,701
Doors 16 FA 45 720 2,421
Carpeting 473 SYD 12.00 5,676
106
ADDENDUM EXHIBIT A-C
UNIT
DESCRIPTION QUANTITY UNIT PRICE EXT TOTAL
----------- -------- ---- ----- --- -----
HVAC
Xxxxxxxxxxx 0 X 000 000
Xxxxxxx Space 2 Mandays 560 960
Plumbing
Sink, faucet, HT/WTR/HTR
Tie In'c to Washroom
Includes O.T.
Sprinklers
Relocation (Allowance) 10 ES 90 900
Electric
Relocate Panel 1 EA 950 950
Duplex Outlets 8 EA 67 536
Telephone Outlets 4 EA 90 360
Wire Plug Mold 24 LF 25 600
Sep. Circuit Copier 1 EA 184 184
Hook Up XX/XXX/XXX 0 XX 000 000
2X2 Parabolic Lens 73 EA 165 12,045
2X2 Para Em 2 EA 185 370
Signal Pole Switches 7 EA 57 379
Exit Signs Relocate 2 EA 50 150
Life Safety Speaker 1 EA 277 277
16,221
44,645
En Cond and Suprv 3,572
Overhead and Profit 3,375
Permit 400
Budget Estimate Cost 51,992
Cost for Full Height Doors (Add for Each Opening) 1,005
Alternate Budget Cost for Low Height (Part in Drywall)
L.H. Part 302 LF 17.50 5,285
Vibage 604 LF 1.05 634
Decor 3,624 LF .30 1,087
Carpet Add'l Labor 750
Electric 4,092
Fees
107
REAFFIRMATION AND EXTENSION OF GUARANTEE
In order to induce Landlord to enter into the foregoing Lease Amendment
Agreement ("Agreements), CCC Information Services, Inc. (the "Guarantor")
hereby directly, absolutely, continually and unconditionally guarantees to
Landlord and Landlord's successors and assigns a reaffirmation and extension of
its guarantee of the Lease (a copy of which is attached hereto as Exhibit A),
to include the full and punctual payment of rent due under the Agreement and
the full, complete and timely performance of all of Tenant's obligations under
the Lease and the Agreement.
In witness whereof, the undersigned, who represents that he is authorized
and empowered to execute this reaffirmation and extension of guarantee, does so
on this 20th day of August, 1990.
Guarantor:
CCC INFORMATION SERVICES, INC.
By:/s/_______________________
Its: _______________________
Attested by: /s/_____________
Its: _______________________
108
GUARANTEE
In order to induce Landlord to enter into the foregoing Lease, CCC
Information Services, Inc. (the "Guarantor"), hereby directly, absolutely, and
unconditionally guarantees to Landlord and Landlord's successors and assigns the
full and punctual payment of Rent due under the Lease and the full, complete
and timely performance of all of Tenant's obligations under the Lease.
Any act of the Landlord or its agents, or the successors or assigns
of the Landlord, or their agents consisting of a waiver of any of the terms or
conditions of the Lease, or the giving of any consent to any manner or thing
relating to the Lease, or the granting of any indulgences or extensions of time
to the Tenant, or to the release of any collateral providing security for the
full performance of Tenant's obligations may be done without notice to the
Guarantor and without releasing the obligations of the Guarantor hereunder.
The obligations of the Guarantor hereunder shall not be released by
Landlord's receipt, application, or release of security given for the
performance and observance of covenants and conditions in the Lease contained
on the Tenant's part to be performed or observed, nor by any modification of
the Lease, but in case of any such modification the liability of the Guarantor
shall be deemed modified in accordance with the terms of any such modification
of the Lease.
The liability of the Guarantor hereunder shall in no way be affected
by (a) the release or discharge of the Tenant in any creditors', receivership,
bankruptcy, or other proceedings; (b) the impairment, limitation, or
modification of the liability of the Tenant or the estate of the Tenant in
bankruptcy, or of any remedy for the enforcement of the Tenant's said liability
under the Lease, resulting from the operation of any present or future
provision of the Bankruptcy Act or other statute or from the decision in any
court; (c) the rejection or disaffirmance of the Lease in any such proceedings;
(d) the assignment or transfer of the Lease by the Tenant; (e) any disability
or other defense of the Tenant; (f) the cessation from any cause whatsoever of
the liability of the Tenant other than a termination of Lease (resulting from a
judgment by a court of competent jurisdiction) due to Landlord's default; or
(g) the impairment or release of any collateral securing the full performance
of Tenant's obligation.
Guarantor's liability herein is direct, absolute, continual,
and unconditional and is joint and several and independent of the
obligations of Tenant, and a separate action) or actions may be brought and
the obligation of the Guarantor may be immediately enforced without
necessity of any action Landlord's against Tenant or collateral and prosecuted
against Guarantor; whether or not action or actions are brought against
Tenant or whether or not Tenant is joined in any such action or actions or
whether or not Landlord has resorted to any collateral, and Guarantor waive
benefit of any enforcement thereof.
109
GUARANTOR:
CCC Information Services;, Inc.
By _____________________________
Its ____________________________
Attested by ____________________
Its ____________________________
110
EXHIBIT A FOR THE REAFFIRMATION OF GUARANTEE AGREEMENT
111
LEASE AMENDMENT AGREEMENT
THIS LEASE AMENDMENT AGREEMENT ("Agreement") is made in Oak Brook,
Illinois, as of this 1st day of August, 1990, by and between The Aetna Casualty
and Surety Company, a Connecticut corporation ("Landlord"), and GIS Information
Systems, Inc., an Illinois corporation ("Tenant").
WHEREAS, Tenant is currently the lessee under a lease dated as of June 10,
1987 ("Lease"), between Tenant, as lessee, and LaSalle National Bank, not
personally, but as trustee U/T/A #107194 and 000 Xxxxxxxx Xxxxx REIP, an
Illinois limited partnership, a beneficiary of said trust, as landlord
(collectively the "Former Landlord") for certain commercial space located at
000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx (the "Property"), a copy of which is
attached hereto as Exhibit A;
WHEREAS, Tenant formerly leased certain additional space totalling
approximately 2,775 square feet and commonly known as Xxxxx 000 ("Xxxxx 000")
at the Property, pursuant to a lease dated November 3, 1989 (a copy of which is
attached as Exhibit B) which is now expired and which Tenant continues to lease
on a month-to-month basis;
WHEREAS, Tenant wishes to lease Suite 106 for an additional term and, in
addition, wishes to lease approximately 5200 additional square feet of space at
the Property;
WHEREAS, Landlord is the new owner of the Property and has succeeded to
the Former Landlord's rights under the Lease;
WHEREAS, Landlord and Tenant each agree to waive any rights relating to
any non-compliance by the other with the terms of the Lease as of the date of
this Agreement;
WHEREAS, Landlord and Tenant wish to amend the Lease;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. Incorporation of Recitals. The foregoing recitals are hereby
incorporated into this Agreement.
112
2. Additional Rental Space. Landlord hereby leases to Tenant for a term
beginning on August 1, 1990 and continuing to and including August 31, 2002,
the following space:
a. Suite 106 as further described in Exhibit B attached hereto; and
b. Approximately 5,200 square feet of space, the exact square footage
and location of which are set forth in Exhibit C attached hereto.
Collectively, a and b above shall be referred to herein as the "Additional
Rental Space."
3. Rent and Additional Rent. Subject to the exceptions stated in
paragraphs 5 and 6 below, Tenant shall pay base rent ("Rent") and its pro rata
share of additional rent as that term is defined in the Lease ("Additional
Rent"): for the Additional Rental Space. Rent shall be as set forth in the
Schedule in Exhibit D attached hereto. The Tenant's pro rata share (or
percentage) of Additional Rent shall be equal to the square footage of the
Additional Rental Space, as determined after final measurement, divided by
63,156, the total rental area of the Property. (For example, if the Additional
Rental Space is determined to be 8,000 square feet, the Tenant's pro rata share
of Additional Rent for the Additional Rental Space shall be 8,000 divided by
63,196.)
4. Tenant Improvements. Landlord shall build out tenant improvements
("Tenant Improvements") for the Additional Rental Space in accordance with the
plans and specifications set forth in Exhibit E. Landlord shall pay (or
reimburse Tenant) for the actual cost of the Tenant Improvements up to $16.00
per square foot. If the Tenant Improvements cost less than $16.00 per square
foot, the Tenant shall be entitled to have the difference credited against its
Rent.
5. Rent: During Construction. From the date of this Agreement up to the
time when the Tenant Improvements are substantially completed, the Tenant shall
pay no Rent, no Additional Rent, and no other rent of any kind for that portion
of the Additional Rental Space described in paragraph 2(b) hereof. However,
during that same period, the Tenant shall pay the Landlord rent for Suite
106 at the same rate as formerly provided for in Exhibit B.
6. Rental Abatement After Construction. Tenant shall be entitled to an
abatement of Rent for the entire Additional Rental Space during the first
fifteen months after the Tenant Improvements are substantially completed. During
this
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113
fifteen month period, Tenant shall be obligated to pay only Additional Rent for
the Additional Rental Space.
7. Amendment to Lease. The following paragraphs of the Lease (which are
located in that portion of the Lease entitled "Addendum to Lease") are hereby
deleted and of no further legal force or effect: Sections X-00, X-00, X-00,
X-00, X-00 xxx X-00.
8. Tenant's Right to Lease Extra Space.
(a) Tenant shall have the right at any time and upon thirty (30)
days' written notice to Landlord to lease approximately 3,000 square feet
of additional space located immediately west of the former Madison Pizza
space on the first floor of the Property (as more specifically described
in Exhibit F attached hereto) (the "Extra Space"), provided such Extra
Space is not then under lease to another person.
(b) Landlord shall not lease the Extra Space or any part thereof to
any person other than Tenant without first giving Tenant thirty days'
written notice of Landlord's intention to do so and the opportunity to
lease the Extra Space itself. At any time during the thirty days after its
receipt of such notice, Tenant may exercise its right to lease the Extra
Space by notifying Landlord in writing of its intention to do so.
(c) If Tenant advises Landlord that it does not wish to lease the
Extra Space or fails to advise Landlord of its intention to lease the
Extra Space within the thirty-day period, the Landlord may lease the Extra
Space to the person identified in the Landlord's notice (or to an entity
related to such person). However, if for any reason the Landlord does not
enter into a lease with such person (or an entity related to such person)
within one hundred eighty (180) days of the date of the Landlord's notice,
the proposed lease and the Landlord's notice shall be deemed a nullity and
the Landlord shall comply with subparagraph (b) of this paragraph 8 before
leasing the Extra Space to any person.
(d) If Tenant exercises its right to lease the Extra Space, then
Landlord and Tenant, as soon as is practicable thereafter, shall enter
into a lease agreement for the Extra Space. The terms and conditions of
such lease agreement ("Extra Space Lease Agreement") shall be as follows:
Effective Date: As soon as practicable with an allowance of up to 60
days for
3
114
construction work and/or tenant improvements to be substantially
completed and the space ready for occupancy.
Initial Team: From commencement date until August 31, 2002.
Rent: To begin upon occupancy or upon the substantial completion of
tenant improvements, whichever is sooner. To be the same (per square
foot) as the Rent payable on the Additional Rental Space determined as
of the effective date of the Extra Space Lease Agreement and with the
same increases thereafter, all in accordance with Exhibit D hereto.
Additional Rent: Tenant shall pay its pro rata share of Additional
Rent for the Extra Space.
Rental Abatement: Tenant shall be entitled to an abatement of Rent
which, in total, shall equal 1 1/4 months for each full year of the
term of the Extra Space Lease Agreement (measured from the
commencement date thereof to August 31, 2002). The abatement shall
begin upon occupancy or upon the substantial completion of tenant
improvements, whichever is sooner.
Build-Out Allowance: To be determined in accordance with Section A-17
of the Lease.
Other Terms: Except to the extent it is inconsistent with the terms
stated above, the Lease shall govern the Landlord's and Tenant's
rights and obligations with respect to the Extra Space.
(e) So long as Tenant is not in default under the Lease as amended
herein (or said default is not in the process of being cured within any
applicable cure periods), the Tenant's right to lease the Extra Space
shall be a continuing right; i.e., if the Extra Space is leased to a
person other than Tenant, Tenant shall once again have the right to lease
the Extra Space on the terms stated in this paragraph 7 upon the
termination or expiration of such other person's lease.
4
115
9. Tenant's Right of First Refusal on the Sale of the Property. Tenant's
right of first refusal upon sale of the property as set forth in Section A-27
of the Lease is hereby amended to read as follows:
In addition to the option granted to Tenant in Section A-7 hereof, Tenant
has the following rights:
In the event that Landlord negotiates and accepts a signed letter of
intent to purchase the Property from an unrelated party or receives an offer to
purchase the Property which Landlord wishes to accept, Landlord shall notify
Tenant of such facts in writing and shall include in such notice a description
of the relevant terms of the proposed transaction, including price and
financing, as well as a copy of any and all documents constituting the letter
of intent or offer. Tenant has 30 days from receipt of such notice to exercise
this right of first refusal to purchase the Property on the same terms and
conditions as set forth in the notice, by so advising the Landlord in writing.
If Landlord and the same proposed purchaser (which includes any assignee of or
entity related to purchaser) change the conditions of the offer for purchase or
sale by reducing the sales price greater than 5%, or if the purchase money
financing offered by seller is increased by more than 5%, or if the percentage
of interest seller is to charge on such financing is adjusted by more than 1%
(100 basis points) downward, Landlord shall give a new written notice to Tenant
with the changed terms and Tenant has 15 calendar days to respond in writing.
No other changes in the terms of the purchase or sale shall require Landlord to
give additional notice to Tenant. In each case, if Tenant fails to respond by
the required reply date, Tenant shall be deemed as to have waived this right of
first refusal. If the purchaser (or a related entity) identified in any
relevant notice from Landlord does not actually close on the Property within
one year after the date of the Landlord's notice to Tenant, the Landlord's
notice and the proposed transaction shall be deemed null and void and Landlord
again shall comply with the terms of this paragraph before selling the Property
to any person.
The new terms of this Amended Section A-27 shall pertain to the pending
sales transaction pursuant to a Letter of Intent dated June 20, 1990 from
Landlord to Xxxxxx X. XxXxxxxxx.
10. Lease Remains in Effect. The Lease (including the Addendum thereof),
as expressly modified herein, shall remain in full force and effect. In
addition, except to the extent that its terms are inconsistent with the terms
of this Agreement, the Lease shall govern the rights and obligations of the
Landlord and Tenant with respect to the Additional Rental Space. In particular
and without limiting the
5
116
generality of the foregoing, Sections X-0, X-00, and A-22 shall apply to this
Agreement.
11. Hazardous Waste. Tenant agrees not to store or dispose of any toxic
or hazardous materials on the Premises and Additional Space at anytime without
the prior written consent of Landlord.
12. Notice. Any notice sent under the Lease or this Agreement shall be
sent by certified or registered mail and shall be addressed as follows:
If to Landlord: The Aetna Casualty and Surety Company
x/x Xxxxxx Xxxxxxxxxx Xxxx
Xxxxx Realty Investors
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Tenant: GIS Information Systems, Inc
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxx
President
with a copy to: Xxxxxxxx X. Xxxxxxxxx
Xxxxxx and Xxxxx
Suite 1500
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
or to such other persons or such other addresses designated by Landlord or
Tenant in writing.
13. Cross-Default Provision. A default by Landlord or Tenant in any of
the terms and conditions of the Lease (as modified by the provisions herein)
shall constitute a default by such party under this Agreement and vice versa.
14. Assignment. All rights and obligations of Landlord and Tenant
hereunder shall inure to the benefit of their respective successors and
assigns.
15. Applicable Law. This Agreement shall be interpreted and governed by
the laws of the State of Illinois.
6
117
IN WITNESS WHEREOF, the parties, who represent that they are authorized
and empowered to do so, have executed this Agreement as of the date first above
written.
ATTEST THE AETNA CASUALTY AND SURETY
COMPANY ("LANDLORD")
BY: /s/ Signature
------------------------
PRINTED NAME
---------------
ITS
------------------------
ATTEST GIS INFORMATIONS
SYSTEMS, INC ("TENANT")
BY: /s/ Signature
-------------------------
PRINTED NAME:
--------------
ITS
------------------------
7
118
2
GUARANTOR
CGC Information Services, Inc .
By __________________________
Its _________________________
Attested by _________________
Its _________________________
119
Draft: October 2, 1996 Xxxxxxxx & Xxxxxx, Chicago
EXHIBIT B
Drawing of Subleased Premises
120
(GRAPHIC)
