* * * * * * * * * * * * * * * * * *
Lease
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx
* * * * * * * * * * * * * * * * * *
Between
MRJ Inc.
(Tenant)
and
Teachers Insurance and Annuity Association of America
(Landlord)
Lease
000 Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx
Page
----
DEFINITIONS........................................................................................... iv
SCHEDULE 1............................................................................................ 1
1. LEASING AGREEMENT........................................................................... 2
2. RENT........................................................................................ 2
A. Kinds.................................................................................. 2
(1) Base Rent......................................................................... 2
(2) Operating Cost Share Rent......................................................... 2
(3) Tax Share Rent.................................................................... 2
(4) Additional Rent................................................................... 3
B. Payment of Operating Cost Share Rent and Tax Share Rent................................ 3
(1) Payment of Estimated Operating Cost Share Rent and Tax Share Rent................. 3
(2) Correction of Operating Cost Share Rent........................................... 3
(3) Correction of Tax Share Rent...................................................... 4
C. Definitions............................................................................ 4
(1) Taxes............................................................................. 4
(2) Operating Costs................................................................... 5
(3) Fiscal Year....................................................................... 6
(4) Tenant's Proportionate Share...................................................... 6
D. Rules of Interpretation and Computation of Base Rent and Rent Adjustments.............. 6
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION AND SURRENDER OF PREMISES................. 9
4. PROJECT SERVICES............................................................................ 10
A. Heat and Air Conditioning.............................................................. 10
B. Elevators.............................................................................. 11
C. Electricity............................................................................ 11
D. Water.................................................................................. 11
E. Janitorial Service..................................................................... 12
F. Window Washing......................................................................... 12
G. Interruption of Service................................................................ 12
5. ALTERATIONS AND REPAIRS..................................................................... 13
6. USES OF PREMISES............................................................................ 15
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS................................................. 15
8. CLAIMS; INSURANCE; LIABILITY................................................................ 15
9. FIRE AND OTHER CASUALTY..................................................................... 17
10. RIGHTS RESERVED TO THE LANDLORD............................................................. 18
A. Name................................................................................... 18
B. Signs.................................................................................. 18
C. Windows................................................................................ 19
i.
D. Service Contracts...................................................................... 19
E. Keys................................................................................... 19
F. Access for Repairs, etc................................................................ 19
G. Occupancy.............................................................................. 19
H. Rights to Conduct Businesses........................................................... 19
I. Heavy Equipment........................................................................ 19
J. Show Premises.......................................................................... 19
K. Close Project.......................................................................... 20
L. Substitution of Space.................................................................. 20
M. Use of Lock Box by Landlord............................................................ 20
N. Repairs and Alterations................................................................ 21
O. Mail Chutes............................................................................ 21
P. Other Rights........................................................................... 21
11. DEFAULT AND LANDLORD'S REMEDIES............................................................. 21
A. Defaults............................................................................... 21
B. Landlord's Remedies.................................................................... 23
12. HOLDOVER.................................................................................... 26
13. SUBORDINATION TO MORTGAGES, TRUST DEEDS AND GROUND LEASES................................... 26
A. Subordination.......................................................................... 13
B. Termination of Ground Lease or Foreclosure of Mortgage................................. 27
C. Security Deposit....................................................................... 27
D. Notice and Right to Cure............................................................... 28
14. ASSIGNMENT AND SUBLETTING BY TENANT......................................................... 28
15. SALE BY LANDLORD............................................................................ 31
16. ESTOPPEL CERTIFICATE........................................................................ 31
17. SECURITY DEPOSIT............................................................................ 31
18. EXCUSE OF EITHER PARTY'S INABILITY TO PERFORM; EITHER PARTY'S DEFAULT....................... 32
19. PERSONAL PROPERTY AND TENANT FIXTURES....................................................... 32
20. NOTICES..................................................................................... 32
21. QUIET POSSESSION............................................................................ 33
22. REAL ESTATE BROKER.......................................................................... 33
23. CONDEMNATION................................................................................ 33
24. SPRINKLERS.................................................................................. 34
25. MISCELLANEOUS............................................................................... 34
A. Covenants Binding on Successors........................................................ 34
B. Date Payments Are Due.................................................................. 34
C. Meaning of "Re-entry" and "Landlord"................................................... 34
D. Time Is of the Essence................................................................. 34
E. No Option.............................................................................. 34
F. Severability........................................................................... 34
G. Governing Laws......................................................................... 35
H. Lease Modification..................................................................... 35
I. No Oral Modification................................................................... 35
J. Litigation and Arbitration Costs....................................................... 35
ii.
K. Captions............................................................................... 35
L. Remedies and Rights May Be Exercised by Landlord in Its Own Name:
Authority to Execute This Lease........................................................ 35
M. Payments to Affiliates................................................................. 35
N. Entire Agreement....................................................................... 35
O. Landlord's Title....................................................................... 36
P. Light and Air Rights................................................................... 36
Q. Consents............................................................................... 36
R. Landlord's Agents...................................................................... 36
S. Terms "Landlord" and "Tenant".......................................................... 36
T. Rent Not Based on Income............................................................... 36
U. Exclusivity............................................................................ 36
V. No Recording by Tenant................................................................. 37
26. UNRELATED BUSINESS INCOME................................................................... 37
27. HAZARDOUS MATERIALS......................................................................... 37
28. EXCULPATORY PROVISIONS...................................................................... 38
29. EXTENSION OPTION............................................................................ 38
EXTENSION OPTION...................................................................................... 38
APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - CLEANING SCHEDULE
APPENDIX C - RULES AND REGULATIONS
APPENDIX D - INTENTIONALLY OMITTED
APPENDIX E - MORTGAGES CURRENTLY AFFECTING THE PROJECT
iii.
DEFINITIONS
Section in which
Term Term is Defined
---------------------------------- --------------------
1. Additional Rent 2A(4)
2. Base Operating Costs 2A(2)
3. Base Rent 2A(1)
4. Base Taxes 2A(3)
5. Base Year 2A(2)
6. Building Preamble
7. Business hours 4A
8. Commencement Date 1
9. Corporate Base Rate 2D(3)
10. Equitable Adjustment 2C(2)
11. Excess Operating Costs 2A(2)
12. Excess Taxes 2A(3)
13. First 2D(3)
14. Fiscal year 2C(3)
15. Force Majeure 18
16. Ground Lease(s) 2C(2)
17. Holidays 4A
18. Included Capital Items 2C(2)
19. Land Preamble
20. Landlord Preamble (see also 25C)
21. Lease Preamble
22. Mortgage 138(3)
23. Mortgagee 138(3)
24. new premises 10(L)
25. Operating Cost Report 28(2)
26. Operating Cost Share Rent 2A(2)
27. Operating Costs 2C(2)
28. Premises Preamble
29. Project Preamble
30. Reconstruction Delays 9C
31. Re-enter, re-entry 25C
32. Rent Tax 2C(1)
33. Representations 25N
34. Required Improvements 9B
35. Schedule Preamble
36. Tax Report 2B(3)
37. Tax Share Rent 2A(3)
38. Taxes 2C(1)
39. Tenant Preamble
40. Tenant's Proportionate Share 2C(4)
41. Term 1
42. Termination Date 1
43. trust deed 138(3)
44. trustee 138(3)
45. Work 5A
iv.
LEASE
000 XXXXX XXXXXXX
XXXXXXX, XXXXXXXX
THIS INDENTURE (this "Lease") is made as of the day ______ of
_____________, 1995 , between Teachers Insurance and Annuity Association of
America, a New York corporation (the "Landlord") and the tenant named in Item 1
of the Schedule (the "Tenant"). The term "Project" when used herein refers to
the land (the "Land") and the building (the "Building") currently known as
"Orleans Plaza" (including, without limitation, any and all easements adjacent
thereto) situated at the southwest corner of Orleans and Xxxxxxx Streets,
Chicago, Illinois, together with the vehicular drives, and all other structures
and improvements now or hereafter located on the Land. "Premises" when used
herein refers to that part of the Project leased to Tenant.
The following Schedule (the "Schedule") is an integral part of this Lease.
SCHEDULE
1. Name of Tenant: MRJ Inc.
2. Floor(s) or room(s) of Premises: Xxxxxx xxxxx, Xxxxx 000
0. Net Rentable Square Feat: 2,601 square feet
4. Tenant's use of Premises: general office purposes
5. Initial Base Rent (per year): $38,364.75 ($14.75 per rentable square foot)
6. Monthly Installments of Base Rent: $3,197.06
7. Tenant's Proportionate Share: 1.3938 (based on a total of 186,612 rentable
square feet in the Building and a total of 2,601 rentable square feet in
the Premises initially demised hereunder)
8. Rent Abatement: N/A
9. Security Deposit: $3,197.06
10. Tenant's address for notices before and after the possession date: c/o Xx.
Xxxxxx Xxxxx, Director of Administration, MRJ Inc., 00000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000
11. Tenant's Real Estate Broker used for this Lease: Xxxxx Xxxxxx c/o Xxxx
Xxxxxxx Associates
12. Tenant Improvements, if any: None
13. Date Tenant Plans are due from Tenant including special work, if any: N/A
14. Commencement Date: October 1, 1995
15. Term/Termination Date: Three (3) years/ending September 30, 1998, thirty-
six (36) calendar months after the Commencement Date.
16. Base Year: 1995
1. LEASING AGREEMENT. Landlord leases to Tenant, and Tenant leases from
Landlord, for the term (the "Term") set forth on the Schedule, commencing on the
commencement date (the "Commencement Date") set forth on the Schedule and ending
on the termination date (the "Termination Date") set forth on the Schedule,
unless sooner terminated or extended as herein provided, the Premises described
on the Schedule and outlined on the plan attached hereto and made a part hereof
as Appendix A. The Premises constitute a portion of the Building located on the
Land. As provisions of said Lease, Landlord and Tenant covenant and agree as
follows:
2. RENT.
A. Kinds. Tenant agrees to pay rent to Landlord's building manager at the
-----
office of the Project located at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 or to such other person or at such other place as Landlord from time to
time designates in a written notice to Tenant, with Tenant's check, or in coin
or currency which at the time of payment is legal tender for the payment of
public and private debts in the United States of America, the aggregate of the
following, all of which are rent reserved under this Lease:
(1) Base Rent to be paid in monthly installments in advance on or
---------
before the first day of each month of the Term of this Lease in the initial
amount set forth on the Schedule for the first Lease Year, provided that
the first monthly installment of Base Rent will be paid by the Tenant
concurrently with the execution of this Lease, and thereafter, the Base
Rent applicable to the second and third Lease Years shall be in accordance
with the following schedule:
Monthly Installment
Period Annual Base Rent of Base Rent
------------------- --------------------------- -------------------
Second Lease Year $39,665.25 ($15.25 x $3,305.44
2,601 rentable square feet)
Third Lease Year $40,965.75 (15.75 x $3,413.81
2,601 rentable square feet)
(2) Operating Cost Share Rent in an amount equal to the Tenant's
-------------------------
Proportionate Share of the excess of Operating Costs for the applicable
fiscal year of the Lease (the "Excess Operating Costs") over Operating
Costs for the base year (the "Base Year") set forth in the schedule (the
"Base Operating Costs"). Operating Cost Share Rent shall be paid monthly in
advance in an estimated amount, as adjusted by Landlord from time to time.
Definitions of Operating Costs, Tenant's Proportionate Share and the method
for billing and payment of operating Cost Share Rent are set forth in
Sections 2B and 2D.
(3) Tax Share Rent in an amount equal to the Tenant's Proportionate
Share of the excess of Taxes for the applicable fiscal year of the Lease
(the "Excess Taxes") over the Taxes for the Base Year (the "Base Taxes").
Tax Share Rent shall be paid monthly in advance in an estimated amount, as
adjusted by Landlord from time to time. Definition
2.
of Taxes and the method for billing and payment of Tax Share Rent are set
forth in Sections 2B and 2D.
(4) Additional Rent consisting of all of the sums, liabilities,
----------------
obligations and other amounts (excepting Base Rent, Operating Cost Share
Rent and Tax Share Rent) which Tenant is required to pay or discharge
pursuant to this Lease (including, without limitation, any amounts which
this Lease provides shall be Tenant's cost or expense), together with
interest for late payment thereon, all as hereafter provided.
B. Payment of Operating Cost Share Rent and Tax Share Rent.
-------------------------------------------------------
(1) Payment of Estimated Operating Cost Share Rent and Tax Share
------------------------------------------------------------
Rent. Landlord shall estimate the Operating Costs and Taxes of the Project
----
from time to time each year. Such estimates may be revised by Landlord
whenever it obtains information relevant to making such estimates more
accurate. Such estimates will generally (but need not) be issued after the
beginning of a fiscal year and revised upon the determination of the final
real estate tax assessment or final real estate tax rate for the Project.
Within ten (10) days after notice from Landlord setting forth (a) an
estimate of operating Costs for a particular fiscal year, (b) the Base
Operating Costs, and (c) the resulting estimate of Excess Operating Costs
for such fiscal year, Tenant shall pay Landlord an amount equal to one-
twelfth (1/12th) of Tenant's Proportionate Share of such estimated Excess
Operating Costs for such fiscal year, multiplied by the number of months
that have elapsed in such fiscal year to the date of such payment, minus
payments of estimated Operating Cost Share Rent previously paid for said
period. Thereafter on the first day of each month, Tenant shall pay monthly
until a new estimate of Operating Costs is applicable, one-twelfth (1/12th)
of Tenant's Proportionate Share of the estimated Excess Operating Costs.
Within ten (10) days after notice from Landlord setting forth (a) an
estimate of Taxes for a particular fiscal year, (b) the Base Taxes, and (c)
the resulting estimate of Excess Taxes, Tenant shall pay Landlord an amount
equal to one-twelfth (1/12th) of Tenant's Proportionate Share of such
estimated Excess Taxes, multiplied by the number of months that have
elapsed in such fiscal year to the date of such payment, minus payments of
estimated Tax Share Rent previously paid for said period. Thereafter on the
first day of each month, Tenant shall pay monthly until a new estimate of
Taxes is applicable, one-twelfth (1/12th) of Tenant's Proportionate Share
of the estimated Excess Taxes.
(2) Correction of Operating Cost Share Rent. As soon as reasonably
possible after the end of each fiscal year, Landlord shall deliver to
Tenant a report (the "Operating Cost Report") setting forth (a) the actual
Operating Costs for the preceding fiscal year, (b) the Base Operating
Costs, (c) the amount of Operating Cost Share Rent due to Landlord for such
preceding fiscal year, and (d) the amount of Operating Cost Share Rent paid
by the Tenant in and allocable to such fiscal year. On or before twenty
(20) days after receipt of such report, Tenant shall pay to Landlord the
amount of operating Cost Share Rent due for the preceding fiscal year (or a
portion thereof if this Lease was not in
3.
effect for the entire fiscal year) minus any payments made by Tenant for
such fiscal year. If Tenant's estimated payments of Operating Cost Share
Rent exceed the amount due Landlord for the fiscal year in question,
Landlord shall apply any such amount as a credit against Tenant's other
obligations under this Lease, or if the Term has expired or this Lease has
been terminated and Tenant has no further obligations under this Lease
(including any obligations which survive the expiration or termination of
this Lease), then Landlord shall refund any such amount to Tenant.
(3) Correction of Tax Share Rent. At any time during any fiscal year
----------------------------
when such information becomes available, Landlord shall deliver to Tenant a
report (the "Tax Report") setting forth (a) the actual Taxes for the
preceding fiscal year, (b) the Base Taxes, (c) the amount of Tax Share Rent
due to Landlord for such preceding fiscal year, and (d) the amount of Tax
Share Rent paid by the Tenant in and allocable to such fiscal year. On or
before twenty (20) days after receipt of such report, Tenant shall pay to
Landlord the amount of Tax Share Rent due for the preceding fiscal year (or
a portion thereof if this Lease was not in effect for the entire fiscal
year) minus any payments made by Tenant for such fiscal year. If Tenant's
estimated payments of Tax Share Rent exceed the amount due Landlord for the
fiscal year in question, Landlord shall apply any such amount as a credit
against Tenant's other obligations under this Lease, or if the Term has
expired or this Lease has been terminated and Tenant has no further
obligations under this Lease (including any obligations which survive the
expiration or termination of this Lease), then Landlord shall refund any
such amount to Tenant.
C. Definitions:
-----------
(1) Taxes. "Taxes" shall mean any and all federal, state and local
governmental taxes, assessments and charges of any kind or nature, whether
general, special, ordinary or extraordinary, which Landlord shall pay or
become obligated to pay because of or in connection with the ownership,
leasing, renting, management, control or operation of the Project or of the
personal property, fixtures, machinery, equipment, systems and apparatus
located therein or used in connection therewith. Taxes shall include,
without limitation, real estate taxes, personal property taxes, sewer
rents, water rents, assessments (special or otherwise), transit taxes and
ad valorem taxes and the Illinois Replacement Tax. Taxes shall also include
all fees, costs and expenses (including, without limitation, legal fees and
court costs) paid by Landlord in connection with protesting or contesting,
or seeking a refund or reduction of, any of the aforesaid Taxes, regardless
of whether the Landlord is ultimately successful. If at any time during the
term hereof, a tax or excise on rents or income or other tax however
described (the "Rent Tax") is levied or assessed by the United States or
the State of Illinois, or any political subdivision thereof, on account of
the rents hereunder or the interest of Landlord under this Lease, such Rent
Tax shall constitute and be included in Taxes, provided, however, that in
no event shall Tenant be obligated (a) to pay for any year any greater
amount as a result of such Rent Tax than would have been payable by Tenant
had the rentals paid to Landlord under all Project leases (being the
rentals upon which such taxes are imposed) been the sole taxable income of
Landlord for the year in question or (b) to pay or to reimburse Landlord
for any tax of any kind assessed against Landlord on
4.
account of any such Rent Tax having been reimbursed to Landlord by Tenant
or any third party.
For the purpose of determining Taxes for any given fiscal year, the
amount to be included for such fiscal year (a) from special taxes or
assessments payable in installments, shall be the amount of the
installments (and any interest) due and payable during such fiscal year,
(b) from all other Taxes, shall be the amount accrued, assessed or
otherwise imposed for such fiscal year without regard to when any such
Taxes are payable, and (c) from any adjustment (including, without
limitation, a refund) to any Taxes by the taxing authority, when such
adjustment has resulted in, a corresponding adjustment payment by or to
Landlord, shall constitute an adjustment to Taxes for the fiscal year
during which such adjustment is made or received by Landlord, as the case
may be.
Taxes shall not include any net income (except Rent Tax as hereinabove
provided), capital, stock, succession, transfer, franchise, gift, estate or
inheritance taxes, unless the same shall be imposed in lieu of all or any
portion of Taxes.
(2) Operating Costs. "Operating Costs" shall mean any expenses, costs
---------------
and disbursements (other than Taxes) of every kind and nature, paid or
incurred by Landlord in connection with the ownership, leasing, management,
maintenance, operation and repair of all or any part of the Project
(adjusted for vacancy as hereafter provided) and of the personal property,
fixtures, machinery, equipment, systems and apparatus located in the
Project or used in connection therewith. Operating Costs shall not include
(a) costs of alterations of tenant premises; (b) costs of capital
improvements, except for any capital improvements which are intended, to
reduce Operating Costs, and any capital improvements which Landlord is
required to make pursuant to, or which Landlord shall deem necessary to
keep the Project in compliance with, all applicable governmental rules and
regulations applicable from time to time to the Project (the foregoing
capital improvements that are included within Operating Costs are
collectively referred to herein as the "Included Capital items"); (c)
depreciation (except on any Included Capital items); (d) interest and
principal payments on mortgages or any rental payments on any ground or
other underlying leases subject to which Landlord holds its interest in the
Project (hereinafter, referred to individually as a "Ground Lease" and
collectively as "Ground Leases"), and other debt costs, if any; (e) real
estate brokers' leasing commissions or compensations; (f) any cost or
expenditure (or portion thereof) for which Landlord is reimbursed, whether
by insurance proceeds or otherwise (Operating Cost Share Rent and Tax Share
Rent provided for in any tenant leases are not reimbursements); and (g) the
cost of any kind of service furnished to any other office tenant of the
Project which Landlord does not make available to Tenant hereunder. If
during all or any portion of any fiscal year the Project is not fully
rented and occupied by tenants, Landlord may elect to make an appropriate
adjustment (an "Equitable Adjustment") of Operating Costs for such fiscal
year, employing sound accounting and management principles, to determine
the Operating Costs that would have been paid or incurred by Landlord had
the Project been fully rented and occupied for the entire fiscal year, and
the amount so determined shall be deemed to have been the operating Costs
for such fiscal year. The foregoing process is illustrated by the following
hypothetical which assumes (i) the Building has ten
5.
floors; (ii) the Tenant occupies one floor and therefore, Tenant's
Proportionate Share is ten percent (10%); (iii) the other nine floors are
vacant; (iv) the cost of providing a particular service for Tenant's floor
is $1,000. If Tenant were to pay Tenant's Proportionate Share of the cost
of such service for the Building it would pay $100. Instead, Landlord shall
estimate the cost of such service for the Building if it were one hundred
percent (100% occupied. If there would be any savings in the variable costs
per floor of providing the service because such service would be provided
for all ten floors, instead of one floor, these should be taken into
account by Landlord in making its estimate. If some savings would exist,
the estimate of the Landlord would be an amount that is less than the
amount obtained by multiplying the number of floors in the Building by the
cost of providing such service to one floor (10 x $1000); for example,
$9,000. The amount of Landlord's estimate ($9,000) less the actual cost
incurred by the Landlord in providing the service ($1000) would equal the
Equitable Adjustment ($8000). The Equitable Adjustment would be added to
the accrual cost and Tenant would then pay Tenant's Proportionate Share of
this amount, that is, Tenant would pay $9,000 times 10t, which equals $900.
Landlord shall not be entitled to receive from all tenants of the Project
an amount in excess of 100 of actual Operating Costs for any fiscal year.
If Landlord is not furnishing any particular work or service (the cost
of which if performed by Landlord would constitute an Operating Cost) to a
tenant who has undertaken to perform such work or service in lieu of the
performance thereof by Landlord for all or any portion of a fiscal year,
Operating Costs for such fiscal year shall be deemed to be increased by an
amount equal to the additional Operating Costs which reasonably would have
been incurred during such fiscal year by Landlord if it had, at its own
expense, furnished such work or service to such tenant.
Notwithstanding anything contained herein to the contrary, the
provisions of this Section 2C(2) with respect to an Equitable Adjustment of
Operating Costs for vacancy, or as a result of the performance by tenants
of certain services, shall apply only to Operating Costs which are variable
and which increase as occupancy in the Project increases and shall not
apply to any Operating Costs which do not vary with the amount of occupancy
in the Project.
(3) Fiscal Year. The term "fiscal year" shall mean any 12-month
-----------
period (including, without limitation, the calendar year) which Landlord
may from time to time select as the fiscal year of the Project, provided
that the first fiscal year and the last fiscal year of the Term may contain
less than twelve (12) months.
(4) Tenant's Proportionate Share. "Tenant's Proportionate Share"
------------------------------
shall mean the percentage set forth as Item 7 on the Schedule.
D. Rules of Interpretation and Computation of Base Rent and Rent
-------------------------------------------------------------
Adjustments:
-----------
(1) If this Lease commences on other than the first day of a month,
the Base Rent, Operating Cost Share Rent and Tax Share Rent for the month
in which this Lease so begins shall be prorated based upon the number of
days of the Term falling within such month. If the Term of this Lease
commences on any day other than the first day of
6.
the designated fiscal year, or if the Term of this Lease ends on any day
other than the last day of the designated fiscal year, any Operating Cost
Share Rent and Tax Share Rent due to Landlord with respect to such fiscal
year shall be prorated based on the number of days in the Term falling
within such fiscal year.
(2) All rent shall be paid to Landlord without deduction or offset.
The Tenant's covenants to pay rent shall be independent of every other
covenant set forth in this Lease.
(3) Arty sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until the date paid at the annual rate equal to
the lesser of: (i) the highest lawful rate, or (ii) a rate of interest
equal to the sum of three percent (3%) plus the "Corporate Base Rate" at
the time of such default. The phrase "Corporate Base Rate" means that rate
of interest most recently announced by the First National Bank of Chicago,
or its successor (collectively, the "First") as the corporate base rate,
changing automatically and simultaneously with each announced change by the
First in the Corporate Base Rate, such change to be effective as of and on
the date announced by the First as the effective date for the change in the
Corporate Base Rate. A certificate made by an officer of the First stating
the Corporate Base Rate in effect on a certain day, or Corporate Base Rates
in effect during a certain period, shall, for purposes of this Lease, be
conclusive evidence of the First's Corporate Base Rate or Rates on said day
or during such period. In the event that the First ceases to use the term
"Corporate Base Rate" in setting a base rate of interest for commercial
loans, then the Corporate Base Rate herein shall be determined by reference
to the rate used by the First as a base rate of interest for commercial
loans as the same shall be designated by the First to the Landlord. The
payment of such interest shall not excuse or cure any default of Tenant
under this Lease.
(4) If Tenant is in default of any of its obligations under this
Lease, Tenant shall not be entitled to any refund of any sum which may
otherwise be due it by application of any provision of this Lease until any
and all of Tenant's defaults under this Lease are cured by Tenant.
(5) If changes are made to this Lease or to the Project changing the
number of rentable square feet contained in the Premises or in the Project,
Tenant's Proportionate Share shall be appropriately adjusted and the
computations of rent shall be appropriately adjusted so as to take into
account the different Tenant's Proportionate Share figures applicable
during each portion of the applicable fiscal year.
(6) Landlord shall maintain books and records in accordance with
sound accounting and management practices, reflecting the operating Costs
and Taxes. In the event of any dispute as to any operating Cost Share Rent
or Tax Share Rent, Tenant shall have the right to inspect Landlord's
accounting records relative to Operating Costs and Taxes at Landlord's
accounting office upon reasonable prior notice during normal business hours
during the thirty (30) days following the furnishing by Landlord to Tenant
of either of the Operating Cost Report and the Tax Report. Unless Tenant
shall take written exception to any item in any such report within said
thirty (30) day period, such report shall be considered as final and
accepted by Tenant. Any payment due to the
7.
Landlord as shown on the Operating Cost Report or the Tax Report, whether
or not written exception is taken thereto, shall be made by the Tenant
within twenty (20) days after the Landlord shall have submitted the
operating Cost Report or the Tax Report (as the case may be) without
prejudice to any such written exception. If Tenant makes such timely
written exception, a certification as to the proper amount of Operating
Cost Share Rent and Tax Share Rent shall be made by Landlord's independent
certified public accountant, which shall be final and conclusive. Tenant
agrees to pay the cost of such certification unless it is determined that
Landlord's original determination of the aggregate of Taxes and Operating
Costs was in error by more than five percent (5%) of said amounts.
(7) In the event of the termination of this Lease by expiration of
the stated Term or for any other cause or reason whatsoever prior to the
determination of Operating Cost Share Rent, Tax Share Rent or Additional
Rent, Tenant's agreement to pay any such sum shall survive termination of
the Lease and Tenant shall pay any such amount due to Landlord within
fifteen (15) days after being billed therefor. Tenant's obligation to pay
Base Rent shall also survive the expiration or termination of this Lease.
In the event of the termination of this Lease by expiration of the stated
Term or for any other cause or reason whatsoever, except the default by
Tenant under any of the terms or provisions of this Lease, prior to the
determination of Operating Cost Share Rent or Tax Share Rent as hereinabove
set forth, Landlord's agreement to refund any excess in the amount of the
estimated payments made by Tenant on account of Operating Cost Share Rent
or Tax Share Rent over the actual amount thereof accruing or payable up to
the time of the termination or expiration shall survive termination of the
Lease and Landlord shall pay the amount due to Tenant within fifteen (15)
days of Landlord's determination of such amount.
(8) No calculation, determination or payment of Operating Cost Share
Rent or Tax Share Rent, by virtue of the operation of the rent adjustment
provisions under this Section 2 shall result in the payment by Tenant in
any fiscal year during the Term of less than the Base Rent shown on the
Schedule.
(9) If any Operating Cost though paid in one fiscal year, relates to
more than one fiscal year, at the option of the Landlord, such Operating
Cost may be proportionately allocated among such related fiscal years. If
any Operating Cost relates to more than one parcel of property, at the
option of the Landlord, such Operating Cost may be proportionately
allocated among all parcels of property to which it relates.
(10) All payments made with respect to Operating Cost Share Rent or
Tax Share Rent (including any monthly payments made on the basis of
Landlord's estimates thereof) may be commingled and need not be segregated
by the Landlord and may be held and utilized by the Landlord without
payment to the Tenant of interest or any sums for the use of any of said
amounts.
8.
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION AND SURRENDER OF
PREMISES.
A. Landlord is leasing the Premises to Tenant "as is," without any
representations or warranties of any kind (including, without limitation, any
express or implied warranties of merchantability, fitness or habitability) and
without any obligation on the part of the Landlord to alter, remodel, improve,
repair, decorate or clean the Premises or any part thereof.
B. During the term of this Lease, Tenant shall maintain the Premises in
as good condition as when Tenant took possession, or as when completed after
possession in the event that Tenant takes possession prior to the Completion
Date (loss or damage caused by action of the elements, Acts of God and the
public enemy, ordinary wear and fire and other casualty insured against by
Landlord excepted), failing which Landlord may but need not restore the Premises
to such good condition and Tenant shall pay the cost thereof. At the termination
of this Lease or at the termination of Tenant's right to possession without
termination of this Lease, Tenant shall, subject to Sections 3C and 3D below,
return the Premises to Landlord broom clean and in good condition as described
in the immediately preceding sentence or Landlord may, but need not, restore the
Premises to such good condition and Tenant shall pay the cost thereof.
C. Unless otherwise provided by written agreement, signed by Landlord,
all Work (hereinafter defined), partitions, hardware, light fixtures and other
fixtures (except trade fixtures and movable furniture and equipment belonging to
Tenant) in or upon the Premises, whether placed there by Landlord or Tenant,
shall be surrendered with the Premises at the termination of this Lease, by
lapse of time or otherwise, or at the termination of Tenant's right to
possession without termination of this Lease, and shall become Landlord's
property without compensation to Tenant; provided, however, that if prior to any
such termination of the Lease, or of the right to possession, or within ten (10)
days thereafter, Landlord so directs by written notice, Tenant shall promptly
remove any Work, partitions, hardware, light fixtures or other fixtures placed
in or upon the Premises by Tenant and designated in such notice and repair any
damage to the Premises caused by such removal, failing which Landlord may remove
the same and repair the Premises and Tenant shall pay the cost thereof to
Landlord upon demand.
D. Tenant shall also remove its furniture, movable equipment, trade
fixtures and all other items of personal property from the Premises prior to the
end of the Term or any extension thereof, or within thirty (30) days after the
early termination of this Lease for any reason, or of the termination of
Tenant's right of possession; and if Tenant does not remove such property, at
Landlord's election: (i) Tenant shall be conclusively presumed to have conveyed
the same to Landlord under this Lease as a xxxx of sale without further payment
or credit by Landlord to Tenant, (ii) Tenant shall be conclusively presumed to
have forever abandoned such property, and without accepting title thereto,
Landlord may, at Tenant's expense, remove, store, destroy, discard or otherwise
dispose of all or any part thereof in any manner that Landlord shall choose
without incurring liability to Tenant or to any other person, and Tenant shall
pay to Landlord, upon demand, any and all reasonable expenses incurred in taking
any of such actions. In no event shall Landlord ever become or accept or be
charged with the duties of a bailee (either voluntary or involuntary) of any
personal property; and the failure of Tenant to remove all such property from
the Premises and the Project shall forever bar Tenant from bringing any action
or
9.
asserting any liability against Landlord with respect to any such property which
Tenant fails to remove.
E. All obligations of the Tenant under this Lease shall survive the
expiration of the Term or sooner termination of this Lease.
F. Tenant's taking possession of the Premises or any portion thereof
shall be conclusive evidence that the Premises or such portion were then in good
order, repair and satisfactory condition. Landlord may authorize Tenant to take
possession of all or any part of the Premises prior to the Commencement Date. If
Tenant does take possession pursuant to such authorization, all of the covenants
and conditions of this Lease shall apply to and shall control such pre-term
occupancy. Rent for such pre-term occupancy shall be paid upon occupancy and on
the first day of each calendar month thereafter at the rate set forth in Section
2A hereof. If the Premises are occupied for a fractional month, such rent shall
be prorated on a per diem basis.
4. PROJECT SERVICES. So long as Tenant is not in default hereunder,
Landlord agrees to furnish services to the Tenant without charge except for
Operating Cost Share Rent, electricity and as otherwise specifically provided
herein, as follows:
A. Heat and Air Conditioning. Landlord shall furnish heat and air
--------------------------
conditioning to provide a temperature condition required, in Landlord's
judgment, for comfortable occupancy of the Premises under normal business
operations in the absence of machines or equipment which may affect the
temperature otherwise maintained in the Premises. Such heat and air
conditioning shall be provided daily during business hours (8:00 a.m. to
6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. Saturday),
Sundays and Holidays (hereinafter defined) excepted. Tenant agrees to keep
and cause to be kept closed all windows in the Premises and at all times to
cooperate fully with the Landlord in the operation of the heating and air
conditioning systems and to abide by all reasonable regulations and
requirements which Landlord may prescribe to permit the proper functioning
and protection of the heating and air conditioning systems. Landlord
reserves the right to shop the heating and air conditioning systems when
necessary by reason of accident or emergency or for repairs, alterations,
replacements or improvements, which in the judgment of the Landlord are
desirable or necessary, until said repairs, alterations, replacements or
improvements shall have been completed. For purposes of this Lease
"Holidays" shall mean any Legal Holiday as defined in Ill. Rev. Stat. 1985,
Ch. 17, pars. 2201, 2202, as amended from time to time. Landlord agrees to
make any repairs to the heating and air conditioning systems promptly and
with due diligence.
Whenever heavy concentration of personnel, motors, machines or
equipment, including telephone equipment, used in the Premises adversely
affects the temperature otherwise maintained by the air conditioning
system, Landlord reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof, including all of
the costs relating to the installation and the cost of operation and
maintenance thereof, shall be Additional Rent hereunder and shall be paid
by Tenant to Landlord upon demand.
10.
Landlord shall also furnish heat and air conditioning after business
hours, on the condition that Tenant gives Landlord not less than forty-
eight (48) hours' prior notice of Tenant's needs for such additional
heating or air conditioning, and provided that Tenant pays to Landlord its
then current charges for such additional heating or air conditioning. Such
charges will be prorated by Landlord between requesting user-tenants if
more than one tenant requests such additional heating or air conditioning
at the same time and the proration shall be based on the area of the
Project leased to such tenants and their respective periods of use.
B. Elevators. Landlord shall provide passenger elevator service in
---------
common with the Landlord and the other tenants, daily, during business
hours, Sundays and Holidays excepted, and freight elevator service in
common with the Landlord and other tenants, daily from 6:00 AM to 5:00 PM
on Monday through Friday (Saturday, Sundays and Holidays excepted). Tenant
may request additional freight elevator service provided that such service
shall be at Tenant's sole cost and expense. Freight elevator service shall
at all times be subject to scheduling by the Landlord. Landlord shall
provide limited passenger elevator service at all times (except in the case
of an emergency) during which normal passenger elevator service is not
furnished.
C. Electricity. All the electricity used in the Premises shall be
-----------
supplied by Commonwealth Edison Company or any other electricity company
serving the Project, and such electricity shall be supplied through a
separate meter and be paid for by Tenant, provided that Landlord shall pay
for the electricity required for the operation of the Building's shared
heating, ventilating and air conditioning systems at the times specified in
Section 4A above. The meter shall be installed at the expense of Tenant or
the electricity company. A separate electrical meter is presently in place
for the Premises. Landlord shall not in any way be liable to Tenant for any
loss or damage or expense Tenant may sustain or incur if either the amount
or quality of electric service is changed or is no longer available or
suitable for Tenant's requirements. If such service shall be discontinued,
such discontinuance shall not in any way affect this Lease. Tenant
covenants and agrees that at all times its use of electric current shall
never exceed the capacity of the existing feeders to the Building or the
risers or the wiring installed thereon when reviewed in conjunction with
the electrical usage of the other tenants in the Project. Tenant covenants
and agrees that it shall make no alterations or additions to the electric
equipment and/or appliances without the prior written consent of Landlord
in each instance. Landlord shall maintain the light fixtures in the
Premises and install any lamps, bulbs, ballasts or starters to be used by
Tenant in the Premises, all at Tenant's sole cost and expense.
Tenant shall pay for all electricity required during janitorial
service and alterations and repairs to the Premises and Tenant shall pay
for all electricity required for the operation of any special air
conditioning or ventilating system for its office machinery or equipment
requiring special or extra current.
D. Water. Landlord shall furnish cold water from City of Chicago
-----
mains from regular Building outlets for drinking, lavatory and toilet
purposes, drawn through fixtures installed by Landlord or by Tenant with
Landlord's prior written consent, and hot
11.
water for public lavatory purposes from the regular supply of the Building.
Tenant shall pay Landlord at rates fixed by Landlord for water furnished
for any other purpose as Additional Rent hereunder. Tenant shall not waste
or permit the waste of water.
E. Janitorial Service. Landlord shall also furnish janitorial and
------------------
cleaning services as set forth in Appendix B, on Monday through Friday,
Holidays excepted. Tenant shall not provide janitorial services in the
Premises without the prior written consent of Landlord and then only at
Tenant's sole responsibility, cost and expense, by contractors or employees
at all times satisfactory to Landlord in its sole discretion.
F. Window Washing. Landlord shall furnish window washing of all
--------------
exterior windows, weather permitting, at intervals to be determined by
Landlord, but not less than three times during each calendar year.
G. Interruption of Service. Landlord does not warrant that any
-----------------------
service will be free from interruption caused by labor controversies,
accidents, inability to obtain fuel, steam, water or supplies, governmental
regulations, or other causes beyond the reasonable control of the Landlord,
or repairs, alterations, replacements or improvements to such systems. No
such interruption of service shall be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or any part thereof, or render
Landlord liable to Tenant for damages, by abatement of rest or otherwise,
or relieve. Tenant from performance of Tenant's obligations under this
Lease.
Notwithstanding anything to the contrary contained in this Section 4G, if
(i) Landlord ceases to furnish any service in the Building as a result of a
condition which affects only the Building (and does not affect office
buildings in general in the River North area of Chicago), and Tenant
notifies Landlord in writing within one (1) business day after such
cessation, (ii) such cessation is within Landlord's reasonable control
(that is, is not caused by Force Majeure [hereinafter defined)), (iii) such
cessation does not arise as a result of an act or omission of Tenant, and
(iv) as a result of such cessation, the Premises or a material portion
thereof, is rendered untenantable (meaning that Tenant is unable to use
such space in the normal course of its business) and Tenant in fact so
ceases to use such space, or material portion thereof, in the manner used
prior to such cessation, then, Tenant's remedy for such cessation shall be
as follows: on the sixth day after the affected space becomes untenantable,
Tenant ceases to use such space, and Tenant so notifies Landlord in writing
thereof, the Rent payable hereunder shall be equitably abated based upon
the percentage of the space in the Premises so rendered untenantable and
not being so used by Tenant, and such abatement shall continue until the
date the Premises become tenantable again.
Tenant shall make arrangements directly with the telephone company
servicing the Building for such telephone service in the Premises as may be
desired by Tenant. Tenant shall pay the entire cost of all telephone charges,
electricity consumed within the Premises, maintenance of light fixtures and
replacement of lamps, bulbs, tubes, ballasts and starters.
12.
5. ALTERATIONS AND REPAIRS.
A. Tenant shall not make any improvements or alterations in or additions,
changes or installations to the Premises (collectively, "Work") without
submitting plans and specifications therefor to Landlord, and obtaining
Landlord's prior written consent in each instance. Landlord may withhold such
consent in its reasonable discretion. All Work shall be performed (a) at the
sole cost and expense of Tenant by employees of or contractors employed by
Landlord, or with Landlord's written consent given prior to the letting of the
contract, by contractors employed by Tenant under a written contract previously
approved in writing by Landlord, and (b) on such terms and under such conditions
as Landlord, in its sole discretion, shall determine as will protect the
Premises, the Building and the Project from improper contractors' work and
against the imposition of any lien resulting from Work; without limiting the
foregoing, if Landlord consents to any Work, it shall be performed subject to
the following requirements:
(1) If the Work is to be done by Tenant's contractors, Tenant shall
furnish to Landlord prior to commencement thereof, building permits and
certificates of appropriate insurance and bonds satisfactory in all
respects to Landlord. Tenant shall also furnish to Landlord, if Landlord so
requests, security for the payment of all costs to be incurred in
connection with the work.
(2) Upon completion of any Work, Tenant shall furnish Landlord with
contractors' affidavits and full and final waivers of lien, each conforming
to the applicable Illinois statutory requirements, as-built plans of any
Work and receipted bills covering all labor and materials expended and
used. Insofar as applicable to the work or material for which payment is
requested or notice or lien claim is made, Landlord in its reasonable
discretion shall make available for partial or final payment or release
thereof such funds as may have been deposited with it by Tenant for the
estimated cost of such Work.
(3) Any Work permitted to be undertaken by Tenant's contractors shall
be performed in such a fashion and by such means as necessary to maintain
peace and harmony among the other contractors serving the Project and the
other tenants and so as not to cause interference with the continuance of
work to be performed or services to be rendered to the Project or the other
tenants.
(4) All Work shall comply with all insurance requirements and with
all applicable laws, ordinances and regulations. All Work shall be
constructed in a good and workmanlike manner, and only good grades of
material shall be used with a quality equal to or better than that used in
the Project.
(5) Tenant shall permit Landlord to supervise all Work within the
Premises. Landlord shall charge a supervisory fee not to exceed (a) ten
percent (10%) of the total cost of the work, including, without limitation,
all labor and material costs, if Landlord's employees or contractors
perform the Work, and (b) Landlord's actual out-of-pocket costs in
supervising such work, if Tenant's employees or contractors perform the
work.
13.
B. If Tenant desires telegraphic, telephonic, burglar alarm, computer
installations or signal service (all of which shall be at Tenant's sole cost and
expense), Landlord shall, upon request, direct where and how all connections and
wiring for such service shall be introduced and run. In the absence of any such
directions, Tenant shall make no borings, cutting or install any wires or cable
in or about the Premises.
C. Tenant agrees to protect, defend and indemnify Landlord, its agents,
building manager and employees, the Premises, the Building and the Project from
and against any and all liabilities of every kind and description which may
arise out of or be connected in any way with any work, whether performed by or
under the direction of Landlord and at the cost of Tenant or performed by Tenant
and whether performed in compliance with this Section 5.
D. Any mechanic's lien filed against the Premises or the Project or any
notice which is received by either Landlord or Tenant or filed for work or
materials furnished or claimed to be furnished and deriving from Work or for
materials or work claimed to have been furnished to Tenant or the Premises shall
be released and discharged of record by Tenant, in either case, within twenty
(20) days after such filing or receipt, whichever is applicable, at Tenant's
expense. If Tenant chooses to contest such claim, notice or lien, Tenant may do
so in place of causing the release and discharge thereof, provided that within
said twenty (20) day period, (i) Tenant provides Landlord with a title indemnity
or bond or other adequate security covering any possible lien or claim that may
arise from the failure to release and discharge such claim, notice or lien; (ii)
Tenant contests such claim, notice or lien in good faith by appropriate
proceedings that operate to stay enforcement thereof; and (iii) Tenant promptly
pays and discharges any final adverse judgment entered in any such proceeding.
If Tenant has not caused the release or discharge or begun appropriate
proceedings to contest such claim, notice or lien, within said twenty (20) days,
Landlord may, but shall not be obligated to, pay the amount necessary to remove
the same without being responsible for making an investigation as to the
validity or accuracy thereof, and the amount so paid, together with all costs
and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord in connection therewith, shall be deemed Additional Rent
hereunder, payable upon demand. Tenant has no power or authority 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 Premises or the Project, and any and all liens and
encumbrances created by Tenant shall attach to Tenant's interest only.
E. for ordinary wear and as otherwise provided in this Lease, Tenant
shall, at all times during the Term hereof, at its sole expense, keep all
Tenant's movable and removable fixtures located in or appurtenant to the
Premises in good order, repair and condition, and Tenant shall promptly arrange
with the Landlord to have Landlord or Landlord's agent make repairs of all other
damages to the Premises and the replacement or repair of all damaged or broken
glass (including signs thereon), fixtures and appurtenances (including hardware
and heating, cooling, ventilating, electrical, plumbing and other mechanical
facilities in the Premises), with materials equal in quality and class to the
original materials damaged or broken, within any reasonable period of time
specified by Landlord. Landlord may, but shall not be required to do so, enter
the Premises at all reasonable times to make any repairs, alterations,
improvements or additions, as Landlord shall desire or deem necessary for the
safety, protection, preservation or improvement of the Project, or as Landlord
may be required to do by any governmental department or agency,
14.
or by the order or decree of any court or by any other proper authority. The
cost of all repairs made by Landlord to the Project which are made necessary as
a result of misuse or neglect by Tenant or Tenant's employees, invitees,
servants, contractors or agents shall be immediately paid as Additional Rent by
Tenant to Landlord upon being billed for same. The cost of all other repairs and
replacements (except those caused by Tenant's misuse or negligence and those
relating to Tenant's movable and removable fixtures) shall be paid for by the
Landlord and deemed an item of Operating Costs.
6. USES OF PREMISES. The Premises shall be occupied and used by Tenant
only for general office purposes, and for no other purpose. Without limiting the
generality of the foregoing, no use shall be made of the Premises nor acts done
which will increase the existing rate of insurance upon the Project or cause a
cancellation of any insurance policy covering the Project or any part thereof or
require additional insurance coverage. Tenant shall not permit to be kept, used
or sold in or about the Premises any article which may be prohibited by
Landlord's insurance policies.
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS. Tenant shall abide by all
applicable laws or governmental regulations concerning its use of the Premises.
Tenant shall also abide by all uniform reasonable rules and regulations adopted
or to be adopted from time to time by Landlord pertaining to the operation and
management of the Project. If any rules and regulations are contrary to the
terms of the Lease, the terms of this Lease shall prevail. The present rules are
contained in Appendix C. The violation of the Project rules or the laws .or
regulations governing Tenant's use of the Premises shall be a default under this
Lease allowing Landlord all remedies for default set forth under Section 11 of
this Lease. Landlord shall not be responsible to Tenant for violation of rules
or regulations or terms of this Lease or any other Lease in the Project by
another tenant, nor shall failure to obey the same by others or lack of
enforcement by Landlord relieve Tenant from its obligations to comply therewith.
8. CLAIMS; INSURANCE; LIABILITY.
A. To the extent permitted by law, Tenant waives all claims it may have
against Landlord, its officers, directors, servants, agents or employees for
damage to person or property sustained by Tenant or by any occupant of the
Premises or the Project, or any other person, occurring in or about the Premises
or the Project, resulting from the Premises or the Project or any part of said
Premises or Project becoming out of repair or resulting from any existing or
future condition, defect, matter or thing in the Premises, the Project or any
part of it, or from equipment or appurtenances therein, or from the action of
the elements, or any accident within or adjacent to the Premises or Project or
resulting directly or indirectly from any act or omission of Landlord or any
occupant of the Premises or Project or any other person while on the Premises or
the Project. If any such damage to the Premises or the Project or any equipment
or appurtenances therein, or to tenants thereof, or their agents, employees,
contractors or invitees, results from any act, omission or negligence of Tenant,
its agents, employees, servants, contractors or invitees, Landlord may, at
Landlord's option, repair such damage and Tenant shall upon demand by Landlord
reimburse Landlord for all costs of such repairs and damages. All property on
the Project or in the Premises belonging to the Tenant, its agents, employees,
servants, contractors or invitees or to any occupant of the Premises shall be
there at the risk of the Tenant or such other person only and Landlord shall not
be liable for damage thereto or theft,
15.
misappropriation or loss thereof. Notwithstanding anything contained in this
Section 8 to the contrary, no agreement of Tenant in this Section 8 shall be
deemed to exempt Landlord from liability for injury to persons or damage to
property caused by or resulting from the negligence or willful misconduct of
Landlord, its agents or employees in the operation or maintenance of the
Premises or the Project.
B. Landlord and Tenant agree to have all property insurance policies
which may be carried by either of them endorsed with a clause providing that any
release from liability of or waiver of claim for recovery from the other party
entered into in writing by the insured thereunder prior to any loss or damage
shall not affect the validity of said policy or the right of the insured to
recover thereunder. Without limiting any release or waiver of liability or
recovery contained in any other section of this Lease but rather in confirmation
and furtherance thereof, 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
Project or the 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 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, its 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.
C. At all times during the Term of this Lease, Tenant shall at its sole
cost and expense maintain in full force and effect insurance protecting Tenant
and Landlord and their respective agents and employees, and any other parties
designated by Landlord from time to time, with terms, coverages and in companies
at all times satisfactory to Landlord and with such increases in limits as
Landlord may, from time to time, request. Initially, such coverage shall be in
the following amounts:
(1) Comprehensive or Commercial General Liability Insurance,
including Contractual Liability insuring the indemnification provisions
contained in this Lease, with limits of not less than one Million Dollars
($1,000,000.00) combined single limit per occurrence for Bodily Injury,
Death and Property Damage, and umbrella coverage of not less than Five
Million Dollars ($5,000,000.00). The Comprehensive or Commercial General
Liability policy shall include the Landlord and the building manager as
additional insureds, with a severability of interest endorsement.
(2) Insurance against (a) "All Risks" of physical loss covering the
tenant improvements (if any) described in Item 12 of the Schedule, the
Work, movable fixtures, office equipment, furniture, trade fixtures,
merchandise and all other items of Tenant's property on the Premises, and
(b) loss of use of the Premises.
D. Tenant hereby agrees to, prior to the commencement of the Term hereof
and prior to the expiration of any policy, furnish Landlord certificates
evidencing that all required insurance is in force and providing that such
insurance may not be cancelled or changed without at least thirty (30) days'
prior written notice to Landlord and Tenant (unless such cancellation is
16.
due to nonpayment of premiums, in which event ten (10) days' prior written
notice shall be provided).
E. Tenant hereby agrees to indemnify, defend and hold harmless Landlord
and its officers, directors, servants, agents and employees against any claims
or liability for damage to person or property (or for loss or misappropriation
of property) occurring in the Premises or Project, arising from any breach or
default on the part of Tenant during the Term of this Lease or from any act or
omission of Tenant or of any employee, agent, servant, invitee or contractor of
Tenant, and from any costs relating thereto (including, without limitation,
attorneys' fees).
F. Landlord shall prudently carry insurance coverage on the Building and
the Project as it sees fit.
9. FIRE AND OTHER CASUALTY.
A. In the event that (i) the Premises are made substantially untenantable
by fire or other casualty, including damage or casualties of war, and Landlord
shall decide not to restore or repair the same, or (ii) the Building is so
damaged by fire or other casualty that Landlord shall decide to demolish or not
rebuild the same, then, in either of such events, either Landlord or Tenant
shall have the right to terminate this Lease by notice to the other within
ninety (90) days after the date of such fire or other casualty.
B. If the Premises or the Building are made untenantable by fire or other
casualty, and this Lease is not terminated pursuant to Section 9A above,
Landlord shall; to the extent permitted by any mortgages or Ground Leases with
respect to the Premises and the Project, immediately take such action as is
necessary to make applicable insurance proceeds available and to use `the same
to reconstruct, repair and restore the Building and the Premises, subject to
zoning laws and building codes then in effect, and including only Building
Standard Tenant Improvements (as provided in Exhibit A of Appendix D) or, if any
portion of the Premises has been leased on an "as is" basis, including only
improvements similar to those located in such portion of the Premises on the
Commencement Date or the date on which such portion was added to the Premises,
if later than the Commencement Date (herein, the improvements Landlord is
required to make are called the "Required Improvements"), and at Landlord's
option Tenant may be permitted or required to devote the proceeds of its
insurance described in Section BC(2)(a) to cause restoration of tenant
improvements over and above the Required improvements, and pay for the same to
Landlord or through Landlord as if newly done pursuant to Section 5 of this
Lease. In the event a fire or other casualty occurs and both Landlord and Tenant
are insured, it is agreed that the coverage of the Landlord shall be primary and
that Landlord's recovery in no event shall be reduced by any insurance recovery
to Tenant.
C. Notwithstanding anything in this Section 9 to the contrary (except
that Section 9A shall supersede this Section 9C), if all or any portion of the
Premises shall be made untenantable by a fire or other casualty, Landlord shall
with reasonable promptness, cause a registered architect selected by Landlord
and licensed to do business in Illinois to estimate the amount of time required
to substantially complete repair and restoration of the Premises and make the
Premises tenantable again, using standard working methods. If the estimate
indicates that the Premises cannot be made tenantable within twelve (12) months
from the date the repair and
17.
restoration is started, either party shall have the right to terminate this
Lease by giving to the other notice of such election within ten (10) days after
its receipt of the architect's certificate. If the estimate of the registered
architect indicates that the Premises can be made tenantable within twelve (12)
months from the date the repair and restoration is started, or if neither party
terminates this Lease pursuant to this Section 9C, Landlord shall proceed with
reasonable promptness to repair and restore the Premises, provided that if the
estimate of the registered architect indicates that the Premises can be made
tenantable within twelve (12) months from the date repair and restoration is
started, and if Landlord does not repair and restore the Premises within said
twelve (12) month period, which twelve (12) month period shall be extended to
the extent of any Reconstruction Delays, then Tenant may terminate this Lease
upon fifteen (15) days' prior written notice to Landlord. For purposes of this
Lease, the term "Reconstruction Delays" shall mean: (i) any delays caused by the
insurance adjustment process, (ii) any delays caused by Tenant, and (iii) any
delays caused by events beyond Landlord's reasonable control.
D. In the event that this Lease is terminated pursuant to Section 9A or
Section 9C above, rent shall be apportioned on a per diem basis and be paid to
the date of the fire or other casualty. In the event that such fire or casualty
renders all or any portion of the Premises untenantable and this Lease is not
terminated pursuant to Section 9A or Section 9C, then subject to the last
sentence of this Section 9D, the rent provided for in this Lease shall xxxxx on
a per diem basis during the period of repair and restoration until the Premises
are tenantable again, and the abatement shall be in an amount bearing the same
ratio to the total amount of rent due for such period as the untenantable
portion of the Premises from time to time bears to the entire Premises. Any
provision hereof notwithstanding, Tenant's rent shall not xxxxx if its
negligence was the cause of the fire or other casualty; and whether or not the
Lease is terminated, Tenant's recovery shall be limited to the amount necessary
to cause restoration of the tenant improvements as described in this Section 9.
10. RIGHTS RESERVED TO THE LANDLORD. Landlord reserves the following
rights, exercisable without notice to Tenant except as otherwise expressly
provided herein, and without liability to Tenant for damage or injury to
property, person or business (all such claims being hereby released, except to
the extent they are caused by Landlord's negligence), and without effecting an
eviction or disturbance of Tenant's use or possession or giving rise to any
claim for offsets, or abatements of rent o; affecting any of Tenant's
obligations under this Lease. Specification of the rights reserved to Landlord
herein shall not exclude any right accruing to Landlord by operation of law or
reserved specifically or by inference from any provision contained in this
Lease:
A. Name: To change the Project's name or street address.
----
B. Signs: To install, off ix and maintain any and all signs on the
-----
exterior and interior of the Building. No signs visible from the exterior
of the Building or from within its lobbies or common corridors shall be
permitted to be installed in the Premises by Tenant without Landlord's
approval of the sign and the location thereof, which may be withheld in
Landlord's sole discretion. Landlord reserves the right to remove at
Tenant's expense any such sign not so approved by Landlord.
18.
C. Windows: To designate and approve, prior to installation, all
-------
types of window shades, blinds, drapes, awnings, window ventilators and
other similar equipment and to control all the internal lighting that may
be visible from the exterior of the Building.
D. Service Contracts: To designate all sources furnishing sign
-----------------
painting and lettering, ice and drinking water, towels, toilet supplies,
beverages, food service, shoe shining or other services on the Premises,
provided that the rates for such services as are designated by Landlord are
reasonably competitive with rates charged therefor in the Chicago
metropolitan area. No vending or dispensing machines of any kind shall be
placed in or about the Premises without the prior written consent of
Landlord.
E. Keys: To retain at all times and to use passkeys to the Premises
----
and keys to all door locks within and into the Premises. No locks or bolts
shall be altered, changed or added without the prior written consent of
Landlord.
F. Access for Repairs, etc.: To have access to the Premises to
-----------------------
perform its duties and obligations under this Lease and to inspect the
Premises, make repairs, alterations, additions or improvements, whether
structural or otherwise, in and about the Premises, the Project or any part
thereof as set forth in various Sections of this Lease including, without
limitation, Section 5 and Section 10N.
G. Occupancy: To decorate, remodel, repair, alter or otherwise
---------
prepare the Premises for reoccupancy at any time after Tenant vacates or
abandons the Premises. Such acts of Landlord shall not relieve Tenant of
its obligation to pay rent to the Termination Date.
H. Rights to Conduct Businesses: To grant to anyone the exclusive
----------------------------
right to conduct any business or render any service in the Project provided
such exclusive right shall not operate to exclude Tenant from the use
permitted by this Lease.
I. Heavy Equipment: To approve the weight, size or location of safes
----------------
and other heavy equipment and articles in and about the Premises and the
Project and to require all such items and furniture to be moved into and
out of the Building or anywhere else in the Project and the Premises only
at such times and in such manner as Landlord shall direct in writing.
Movement of Tenant's property into or out of the Project and within the
Project is entirely at the risk and responsibility of Tenant. Any
furniture, equipment, curtains and similar articles desired to be removed
from the Premises or the Building shall be listed in a written notice from
Tenant to Landlord and a removal permit therefor shall be obtained from
Landlord prior to removal thereof.
J. Show Premises: To show the Premises to prospective tenants or
--------------
brokers during the last year of the Term of this Lease or the last year of
any extension thereof or to show the Premises to prospective purchasers at
all reasonable times, provided prior notice is given to Tenant in each case
and Tenant's use and occupancy of the Premises shall not materially be
inconvenienced by any such action of Landlord.
19.
K. Close Project: To close or restrict access to the Project during
-------------
such hours as Landlord shall from time to time reasonably determine, and on
Holidays subject, however, to Tenant's right to admittance at all times
under such regulations as Landlord may prescribe from time to time which
may include, by way of example but not of limitation, that persons entering
or leaving the Project identify themselves to a security guard by
registration or otherwise and that said persons establish their right to
enter or leave the Project.
L. Substitution of Space: At any time hereafter, Landlord may
----------------------
relocate all or part of the Premises to another area in the Project (the
"new premises") upon thirty (30) days' prior written notice, provided that:
(1) the new premises shall be loft space similar to the Premises in
area and suitable for the use which Tenant had made of the Premises;
(2) such change shall be made in order to put into the Premises a
major tenant in the Project;
(3) Landlord shall pay all of Tenant's moving costs; and
(4) Landlord shall bear the cost of replacing all of Tenant's
stationery in customary amounts maintained by Tenant, and Landlord shall
reimburse Tenant up to an aggregate of $1,000 for costs of notifying third
parties of the relocation upon presentation by Tenant of paid receipts.
Tenant shall cooperate with Landlord in all reasonable ways to
facilitate the move to the new premises including, by way of example but
not of limitation, designating locations to move furniture and equipment,
supervising moving of files or fragile equipment, designating location of
telephone outlets, and listing color of paint and of flooring desired in
the new premises.
M. Use of Lock Box by Landlord: Landlord may from time to time elect
to designate a lock box collection agent (independent agent, bank or other
financial institution) to act as Landlord's agent for the collection of
amounts due Landlord. In such event the date of payment of rent or other
sums paid Landlord through such agent shall be the date of agent's receipt
of such payment (or the date of collection of any such sum if payment is
made in the form of a negotiable instrument thereafter dishonored upon
presentment); however, for purposes of this Lease, `no such payment or
collection shall be deemed "accepted" by Landlord if Landlord issues a
check payable to the order of the Tenant in the amount sent to the lock box
and if Landlord mails the check to the Tenant addressed to the place
designated in this Lease for notice to Tenant within twenty-one (21) days
after the amount sent by the Tenant is received by the lock box collection
agent or if the Landlord returns a dishonored instrument within twenty-one
(21) days of its dishonor. Return of any such sum to Tenant by so sending
such a check of the Landlord or by so sending a dishonored instrument to
the Tenant within the appropriate twenty-one (21) day period shall be
deemed to be rejection of Tenant's tender of such payment for all purposes
as of the date of Landlord's lock box collection agent's receipt
20.
of such payment (or collection). The return of Tenant's payment in the
manner described in this Section 10M shall be deemed not to be a waiver of
any breach by Tenant of any term, covenant or condition of this Lease nor a
waiver of any of Landlord's rights or remedies granted in this Lease. The
possession of Tenant's funds or negotiation of Tenant's negotiable
instrument by Landlord's agent or Landlord during the applicable twenty-one
(21) day period shall be deemed not to be a waiver of any defaults of
Tenant or any rights of Landlord theretofore accrued nor shall any such
possession or negotiation be considered an acceptance of Tenant's tender.
N. Repairs and Alterations: At any time Landlord may decorate, make
-------------------------
alterations, additions or improvements, structural or otherwise, in or to
the Project or any part thereof, including the Premises, and perform any
acts required or permitted hereunder, or related to the safety, protection,
preservation or improvement of the Project or the Premises, and during such
operations Landlord shall have the right to take into and through the
Premises or any part of the Project all material and equipment required and
to close and temporarily suspend operation of entrances, doors, corridors,
elevators and other facilities, and to have access to and open all
ceilings, without liability to Tenant by reason of interference,
inconvenience, annoyance or loss of business; provided, however, that
Landlord shall cause as little inconvenience or annoyance to Tenant as is
reasonably possible under the circumstances, and shall not do any act which
would permanently reduce the size of the Premises. Landlord shall do any
such work during ordinary business hours, and Tenant shall pay Landlord for
overtime and for any other expenses incurred if such work is done during
other hours at Tenant's request. Landlord may do or permit any work to be
done upon or along, and any use of, any adjacent or nearby building, land,
street, alley or way.
O. Mail Chutes: To have access for Landlord and other occupants of
-----------
the Building to any mail chutes according to the rules of the United States
Postal Service.
P. Other Rights: All other rights reserved by the Landlord pursuant
------------
to the provisions of this Lease.
11. DEFAULT AND LANDLORD'S REMEDIES.
A. Defaults. The occurrence of any of the following shall constitute a
--------
default hereunder:
(1) If Tenant defaults in the payment of rent (whether Base Rent,
Operating Cost Share Rent, Tax Share Rent or Additional Rent), or any other
sum required to be paid by this Lease; provided, however, that Landlord
shall not be entitled to exercise its remedies set forth herein or at law
or in equity with respect to such default, unless such default is not
remedied within five (5) days after written notice thereof by Landlord to
Tenant;
(2) If Tenant defaults in the prompt and full performance or
observance of any term, covenant, agreement or provision of this Lease
(except those specified in Subsections (1), (3), (4), (5), (6), (7) and (8)
of this Section 11A); provided, however, that
21.
Landlord shall not be entitled to exercise its remedies set forth herein or
at law or in equity with respect to such default, (i) if such default is
remedied within seven (7) days after written notice thereof by the Landlord
(or if such default involves a hazardous condition and it is not cured by
Tenant immediately upon written notice to Tenant), or (ii) with respect to
a default which cannot reasonably be cured within seven (7) days, if Tenant
immediately commences to cure and diligently proceeds to complete the cure
of such default within a reasonable time period which shall in no event
extend beyond ninety (90) days after Tenant receives written notice of such
default;
(3) If Tenant abandons or vacates the Premises during the Term
hereof; provided, however Tenant's vacating of the Premises shall not
constitute a default if, prior to vacating the Premises, Tenant has made
arrangements reasonably acceptable to Landlord to (a) insure that Tenant's
insurance for the Premises will be voided or cancelled with respect to the
Premises as a result of such vacancy, (b) insure that the Premises are
secured and not subject to vandalism, and (c) insure that the Premises will
be properly maintained after such vacation. Tenant shall inspect the
Premises at least once each month and report monthly in writing to Landlord
on the condition of the Premises;
(4) If the leasehold interest of Tenant is levied upon under
execution or is attached under process of law, which levy or attachment
continues for a period of thirty (30) days;
(5) If Tenant becomes insolvent or bankrupt or shall generally not
pay its debts as they become due or shall admit in writing its inability to
pay its debts or shall make a general assignment for the benefit of
creditors;
(6) If Tenant shall commence any case, proceeding or other action
seeking reorganization, arrangement, adjustment, liquidation, dissolution
or composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property;
(7) If Tenant shall take any corporate or other action to authorize
any of the actions set forth above in Subsections (5) and (6) of this
Section 11A; or
(8) If any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against it as debtor,
or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against it which is not fully stayed within seven (7) business days after
the entry thereof or (ii) remains undismissed for a period of sixty (60)
days.
22.
B. Landlord's Remedies.
-------------------
(1) Upon the occurrence of any one or more defaults by Tenant,
Landlord may elect, by written notice to Tenant, to terminate this Lease
and Tenant's right to the Premises as of the date set forth in the notice
or, without terminating this Lease, to terminate Tenant's right to
possession of the Premises as of the date set forth in the notice. Upon any
termination of this Lease, whether by lapse of time or otherwise, or upon
any termination of Tenant's right to possession without termination of the
Lease, Tenant shall surrender possession and vacate the Premises and
deliver possession thereof to Landlord, and Tenant hereby grants to
Landlord full and free license to enter into and upon the Premises with or
without process of law in the event of any such termination of this Lease
or of Tenant's right to possession, and to repossess Landlord of the
Premises as of Landlord's former estate and to expel or remove Tenant and
any others who may be occupying or be within the Premises and to remove any
and all property therefrom using such force as may be necessary without
being deemed in any manner guilty of trespass, eviction or forcible entry
or detainer, and without relinquishing Landlord's rights to rent or any
other right given to Landlord hereunder or by law or in equity. Except as
otherwise provided in this Section 11, Tenant expressly waives the service
of any notice of intention to terminate this Lease or to reenter the
Premises and waives the service of any demand for payment of rent or
possession and waives the service of any other notice or demand prescribed
by any statute or other law, and agrees that the simple breach of any of
the covenants or conditions of this Lease shall, without the service of any
demand or notice whatsoever, constitute a forcible detainer by Tenant of
the Premises within the meaning of the statutes of the State of Illinois.
(2) If Tenant voluntarily abandons the Premises or otherwise entitles
Landlord to elect to terminate Tenant's right to possession only without
terminating the Lease, and Landlord does so elect, Landlord may at
Landlord's option enter into the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof as set forth in
subsection B(1) of this Section 11, without such entry and possession
terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligation to pay the rent hereunder for the full Term, and, at
Landlord's option, the present value of the aggregate amount of the Base
Rent, Operating Cost Share Rent and Tax Share Rent (based upon the amount
thereof for the calendar month immediately preceding the month in which the
default has occurred) for the period from the date stated in the written
notice terminating possession to the stated end of the Term (such present
value to be computed on the basis of a per annum discount rate equal to
three (3) percentage points below the Corporate Base Rate at the time of
the default) shall be immediately due and payable by Tenant to Landlord,
together with any other monies due hereunder, and Landlord shall have right
to immediate recovery of all such amounts. In the alternative, Landlord
shall have the right from time to time, to recover from Tenant, and Tenant
shall remain liable for, all rent not theretofore accelerated and paid
pursuant to the foregoing sentence and any other sums thereafter accruing
as they become due under this Lease during the period from the date stated
in the notice terminating possession to the stated end of the Term. Upon
and after entry into possession without termination of the Lease, subject
to Landlord's right to first rent other vacant areas in the Building,
Landlord shall use commercially reasonable efforts to relet the Premises or
any
23.
part thereof to any person, firm or corporation other than Tenant for such
rent, for such time (which may be a period extending beyond the stated Term
of this Lease) and upon such terms as Landlord in Landlord's sole
discretion shall determine, and Landlord shall not be required to accept
any tenant offered by Tenant or to observe any instructions by Tenant
relating to such reletting. In any such case, Landlord may make repairs,
alterations and additions in or to the Premises and redecorate the same to
the extent deemed necessary by Landlord, and in connection therewith
Landlord may change the locks to the Premises, and Tenant shall upon
written demand pay the cost thereof, together with Landlord's expenses of
reletting. Any proceeds from the reletting of the Premises by Landlord
shall be collected by Landlord and shall first be applied against the cost
and expenses of reentry and of reletting the Premises including, but not
limited to, all brokerage, advertising, legal, alteration, redecoration,
repair, and other reasonably necessary costs and reasonable expenses
incurred to secure a new tenant for the Premises, and second to the payment
of rent herein provided to be paid by the Tenant. If the consideration
collected by Landlord upon any such reletting, after payment of the
expenses of reletting the Premises, is not sufficient to pay monthly the
full amount of the rent reserved in this Lease, Tenant shall pay to
Landlord the amount of each monthly deficiency as it becomes due (as the
case may be). If the consideration collected by Landlord upon any such
reletting for Tenant's account after payment of the expenses of reletting
the Premises is greater than the amount necessary to pay the full amount of
the rent reserved in this Lease, the full amount of such excess shall be
retained by Landlord and in no event shall be payable to Tenant. No such
reentry, repossession, repairs, alterations, additions or reletting shall
be construed as an eviction or ouster of Tenant or as an election on
Landlord's part to terminate this Lease, unless written notice of such
intention is given to Tenant, or shall operate to release Tenant in whole
or in part from any of Tenant's obligations hereunder.
(3) If Landlord shall decide to terminate this Lease, Landlord shall
be entitled to recover from Tenant all of the amounts of rent accrued and
unpaid for the period up to and including the date of the termination, as
well as all other additional sums for which Tenant is liable, or in respect
of which Tenant has agreed to indemnify Landlord under any of the
provisions of this Lease, which may then be owing and unpaid, and all costs
and expenses including, without limitation, court costs and attorneys' fees
incurred by Landlord in the enforcement of its rights and remedies
hereunder, and in addition, Landlord, at its sole option, shall be entitled
to recover from Tenant, in lieu of any amounts due under Section 11B(2)
hereof, and Tenant shall pay to Landlord, on demand, as final and
liquidated damages (and not as a penalty), a sum equal to the amount of
Landlord's reasonable estimate of the aggregate amount of Base Rent,
Operating Cost Share Rent, Tax Share Rent and Additional Rent that would be
payable for the period from the date of such termination through the
Termination Date, reduced by the then reasonable rental value of the
Premises for the same period, both discounted to present value at the rate
per annum equal to three (3) percentage points below the Corporate Base
Rate at the time of the default. If, before presentation of proof of such
liquidated damages to any court, commission or tribunal, the Premises, or
any part thereof, shall have been relet by Landlord for such period, or any
part thereof, the amount of rent payable upon such reletting shall be
deemed to be the reasonable rental value for the part or the whole of the
Premises relet during the term of the reletting.
24.
(4) Landlord may but shall not be obligated to cure any default by
Tenant hereunder, but, if Landlord so elects, all costs and expenses paid
by Landlord in curing such default and legal fees in connection therewith
shall be Additional Rent due on the next rent date.
(5) Notwithstanding anything in the Lease to the contrary, any and
all remedies set forth in this Lease (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity and (ii) shall be
cumulative. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall only be effective if it is in writing and
shall not be deemed to be a waiver of a continuing or subsequent breach of
the same, or of any other term, covenant or condition herein contained. The
acceptance of rent or any other amounts due hereunder shall not be
construed to be a waiver of any breach by Tenant of any term, covenant or
condition of this Lease, and if the same shall be accepted after the
termination of this Lease, by lapse of time or otherwise, or of the Tenants
right of possession hereunder, or after the giving of any notice, such
acceptance shall not reinstate, continue or extend the Term of this Lease
or affect any notice given to Tenant prior to the receipt of such amount's,
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 and other sums due, and the payment of the
same shall not waive or affect said notice, suit or judgment.
(6) Notwithstanding any provision in this Lease prohibiting Landlord
from exercising its rights hereunder or at law or in equity if Tenant cures
a default within a specified period of time, if Tenant shall default (i) in
the timely payment of rent (whether any or all of Base Rent, Operating Cost
Share Rent, Tax Share Rent or Additional Rent) three or more times in any
period of 12 consecutive months, or (ii) in the performance of any
particular term, condition or covenant of this Lease three or more times in
any period of six consecutive months, then, notwithstanding that such
defaults shall have each been cured within any applicable cure period after
notice, if any, as provided in this Lease, any further similar default
(including, without limitation, with respect to non-payment of rent, the
further non-payment of any kind of rent payable under this Lease) shall not
be curable by Tenant and Landlord shall have the right to exercise all of
the remedies provided in this Lease (including, without limitation, any and
all remedies at law and in equity) immediately after the occurrence of such
similar default.
(7) If the term of any lease, other than this Lease, made by the
Tenant for any demised premises in the Building or any other building owned
by Landlord or an affiliate of Landlord shall be terminated or terminable
after the making of this Lease because of any default by the Tenant under
such other lease, such fact shall empower the Landlord, at Landlord's sole
option, to terminate this Lease by written notice to the Tenant.
(8) In the event that Tenant shall file for protection under the
Bankruptcy Code now or hereinafter in effect, or a trustee in bankruptcy
shall be appointed for Tenant, Landlord and Tenant agree to the extent
permitted by law, to request that the debtor-in-possession or trustee-in-
bankruptcy, if one shall have been appointed, assume or reject this Lease
within sixty (60) days thereafter.
25.
12. HOLDOVER. If Tenant retains possession of the Premises or any part
thereof after thirty (30) days after the termination of the Term or any
extension thereof, by lapse of time or otherwise, Tenant shall become a tenant
from month-to-month only upon each and all of the terms herein provided as may
be applicable to such month-to-month tenancy and any such holding over shall not
constitute an extension of this Lease; provided, however, that during such
holding over, Tenant shall pay Base Rent, Operating Cost Share Rent and Tax
Share Rent at double the rate payable for the fiscal year, or portion thereof,
immediately preceding said holding over, computed on a monthly basis for the
time Tenant thus remains in possession .and, in addition, Tenant shall pay
Landlord all damages, consequential as well as direct, sustained by reason of
Tenant's holding over. Alternatively, at the election of Landlord expressed in a
written notice to Tenant and not otherwise, such retention of possession shall
constitute a renewal of this Lease for one (1) year; provided, however, that
Tenant shall pay Base Rent in an amount equal to the greater of 150% of the rate
payable for the immediately preceding fiscal year, or portion thereof or 150% of
the then current market rate as determined by Landlord, and Tenant shall
continue to make all other payments required under this Lease, including,
without limitation, operating Cost Share Rent and Tax Share Rent. Neither the
acceptance of rent by the Landlord after termination, nor the provisions of this
section: (i) shall be construed as, or operate as, a renewal or as a waiver of
Landlord's right of re-entry or right to regain possession by actions at law or
in equity or by any other right or remedy hereunder, or (ii) shall be construed
as, or operate as, a waiver of any other right or remedy of Landlord.
13. SUBORDINATION TO MORTGAGES, TRUST DEEDS AND GROUND LEASES.
A. Subordination. This Lease shall be subordinated to any and all Ground
Leases hereafter in force with respect to the Project at the election of the
ground lessor under any such Ground Lease. This Lease shall be subject to all of
the terms and conditions of such Ground Leases, which are hereby incorporated in
this Lease by this reference, and in the event of any conflict between the terms
hereof and the terms of any such Ground Leases, the terms of such Ground Leases
shall control. This Lease shall be subordinated to the lien of any and all
mortgages now or hereafter in force against (a) the Project and (b) any and all
Ground Leases with respect to the Project, at the election of the mortgagee
under any such mortgage. Landlord hereby represents that as of the date hereof
there are no Ground Leases with respect to the Project. The respective rights to
so subordinate this Lease at the election of any such ground lessor or mortgagee
shall continue during any amendment, renewal, modification, consolidation,
replacement or extension of each such Ground Lease or mortgage, and shall apply
to any and all advances made or hereafter made on the security of each such
mortgage.
Subordination shall be effective at election of any such ground lessor or
mortgagee. Election shall not be dependent on receipt of notice by Tenant of the
election to subordinate. Without limiting the foregoing, notice of the election
to subordinate may be given as provided for notices pursuant to this Lease.
Any subordination at the election of any such ground lessor or mortgagee
shall be self-operating. Nevertheless, Tenant or its successors in interest upon
request of Landlord shall promptly execute and deliver (within ten (10) days
after a request therefor) at any time, and from
26.
time to time upon the request of Landlord, such instruments as are reasonably
necessary or appropriate in Landlord's judgment to evidence such subordination.
At any time after the date hereof that any Ground Lease or mortgage is
put in effect on' the Project, Landlord shall request from such mortgagee or
ground lessor a non-disturbance agreement for the benefit of Tenant, in form and
substance reasonably acceptable to Tenant, which agreement shall provide that so
long as Tenant is not in default under this Lease (after the expiration of any
applicable notice and cure periods), Tenant shall have the right to remain in
possession under this Lease and to exercise all of its options and rights on the
terms and conditions set forth herein, even if there is a default under any such
Ground Lease or if any such mortgagee forecloses its mortgage or accepts a deed
in lieu of foreclosure.
B. Termination of Ground Lease or Foreclosure of Mortgage. Should any
------------------------------------------------------
mortgage on the Project or on any Ground Lease be foreclosed or if any Ground
Lease be terminated and this Lease be continued:
(1) The liability of the mortgagee, ground lessor or purchaser at
such foreclosure sale shall exist only during the time such mortgagee,
ground lessor or purchaser is the owner of the Project.
(2) Tenant shall attorn, as Tenant under this Lease, without any
deductions or setoffs whatsoever, to the purchaser at the foreclosure sale
(or the mortgagee if the mortgagee becomes owner of the fee estate or
lessor under any Ground Lease) or, if any Ground Lease be terminated for
any reason, Tenant shall be deemed to have attorned as Tenant under this
Lease to the ground lessor under the Ground Lease, and this Lease shall
continue in full force and effect as a direct lease between and binding
upon Tenant and such mortgagee or ground lessor, as the case may be.
Likewise, Tenant will attorn to a leasehold mortgagee in the event a
leasehold mortgagee should ever become the owner of the leasehold estate
covered by its mortgage or should become the owner of any new lease in
replacement or substitution of such leasehold estate. Tenant agrees to
promptly execute and deliver (within ten (10) days after a request
therefor) at any time and from time to time upon the request of Landlord,
or of any ground lessor under any such Ground Lease, or of any holder of
any such mortgage or leasehold mortgage, or of any such purchaser, any
instrument which, in the sole judgment of such requesting party, may be
necessary or appropriate in any such foreclosure or termination proceeding
or otherwise to evidence such attornment.
(3) As used in this Section 13, "mortgage" shall include "trust deed"
and "mortgagee" shall include "trustee" and successors and assigns of such
party (whether immediate or remote), the purchaser of any mortgage, whether
at foreclosure or otherwise and the successors, assigns and mortgagees of
such purchaser (whether immediate or remote).
C. Security Deposit. The mortgagee under a mortgage and the lessor under
-----------------
any Ground Lease shall have no responsibility for the return of the security
deposit, if any, except to the extent the security deposit is held by such
mortgagee or ground lessor.
27.
D. Notice and Right to Cure. Landlord hereby notifies Tenant that the
------------------------
Project is subject to the mortgages set forth on Appendix E attached hereto
(Mortgages Currently Affecting the Project), and Landlord agrees promptly to
notify Tenant of the placing of any additional Ground Leases, mortgages or trust
deeds against the real property or leasehold estate of which the Premises form a
part.
Tenant agrees to give the mortgagees shown on Appendix E and any other
mortgagee or holder of a deed of trust or lessor of any Ground Lease, 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 mortgagee, holder of a deed of trust or lessor under any Ground Lease.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then such mortgagee, holder of a
deed of trust or lessor under any Ground Lease shall have an additional thirty
(30) days within which to cure such default, or if such default cannot be cured
within that time, such mortgagee, holder of a deed of trust or lessor under any
Ground Lease shall have such additional time as may be necessary to cure such
default, provided that within such thirty (30) days, any mortgagee, holder of a
deed of trust or lessor under any Ground Lease, as the case may be, has
commenced and is diligently pursuing the cure of such default (including but not
limited to commencement of foreclosure or lease forfeiture proceedings, if
necessary to effect such cure), and Tenant shall not pursue any of the remedies
it may have for such default and this Lease shall not be terminated, while such
cure is being diligently pursued, so long as the default is completely cured
within a reasonable time thereafter. During the period between the giving of
such notice and the remedying of Landlord's default, the rent herein recited
shall be abated and apportioned to the extent that any part of the Premises
shall be untenantable.
14. ASSIGNMENT AND SUBLETTING BY TENANT.
A. Tenant shall not, without the prior written consent of Landlord in
each instance, which consent will not be unreasonably withheld, (i) assign,
transfer, mortgage, pledge, hypothecate or encumber or subject to or permit to
exist upon or be subjected to any lien or charge, this Lease or any interest
under it, (ii) allow to exist or occur any transfer of or lien upon this Lease
or the Tenant's interest herein 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 for any purpose not provided for under Section 6 of this Lease or
by anyone other than the Tenant and Tenant's employees. Landlord shall be acting
reasonably when such consent is not granted, if any of the following is true:
(1) 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;
(2) in the reasonable judgment of Landlord the purpose for which the
subtenant or assignee intends to use the Premises (or a portion thereof) is
not in keeping with the standards of Landlord for the Building or are in
violation of the terms of any other leases in the Building (it being
understood that the purpose for which such
28.
subtenant or assignee intends to use all or a portion of the Premises may
not be in violation of this Lease);
(3) the subtenant or assignee is either a government (or subdivision
or agency thereof) or an occupant of the Building;
(4) an assignment is desired for less than the entire Premises and/or
for less than the remaining Term of the Lease; or
(5) Tenant is in default under any of the terms or conditions of this
Lease.
In no event shall this Lease or any interest herein be assigned or
assignable by voluntary or involuntary bankruptcy proceedings or by
operation of law or otherwise, and in no event shall this Lease or any
rights or privileges hereunder be an asset of Tenant under any bankruptcy,
insolvency or reorganization proceedings, except as provided by law.
B. Consent by Landlord to any assignment, subletting, use, occupancy,
transfer or encumbrance shall not operate to relieve Tenant from any covenant,
liability or obligation hereunder (whether past, present or future), including,
without limitation, the obligation to pay rent, except to the extent, if any,
expressly provided for in such consent, nor shall such consent be deemed to be a
consent to any subsequent assignment, subletting, use, occupancy, transfer or
encumbrance. Tenant shall pay all of Landlord's costs, charges and expenses,
including without limitation, reasonable attorney's fees, incurred in connection
with any assignment, subletting, use, occupancy, transfer or encumbrance made or
requested by Tenant.
C. Tenant shall, by notice in writing, advise Landlord of its intention
from, on and after a stated date (which shall not be less than sixty (60) days
after the date of Tenant's notice) to assign this Lease or sublet any part or
all of the Premises for the balance or any part of the Term, and, in such event,
Landlord shall have the right, to be exercised by giving written notice to
Tenant within thirty (30) days after receipt of Tenant's notice, to terminate
this. Lease with respect to the space described in Tenant's notice as of the
date stated in Tenant's notice for the commencement of the proposed assignment
or sublease; provided, however, that if Landlord elects to terminate this Lease
with respect to the space described in Tenant's notice, Tenant shall have the
right, to be exercised by giving written notice to Landlord within fifteen (15)
days after receipt of Landlord's notice, to withdraw its notice of intent to
assign or sublease such space and Landlord's notice to terminate shall be of no
force and effect. Tenant's notice shall include the name and address of the
proposed assignee or subtenant, a true and complete copy of the proposed
assignment or sublease and sufficient information as Landlord deems necessary to
permit Landlord to determine the financial responsibility and character of the
proposed assignee or subtenant. If Tenant's notice covers all of the Premises
and if Landlord exercises its right to terminate this Lease as to such space,
then the Term of this Lease shall expire and end on the commencement date stated
in Tenant's notice as fully and completely as if that date had been the
Termination Date. If, however, Tenant's notice covers less than all of the
Premises, and if Landlord exercises its right to terminate this Lease with
respect to such space described in Tenant's notice, then as of the commencement
date stated in Tenant's notice, the rent reserved herein shall be adjusted on
the basis of the number of, rentable square feet retained by Tenant, and this
Lease as so amended, shall continue thereafter in full force and effect. If
Landlord, upon
29.
receiving Tenant's notice, does not exercise its right to terminate as
aforesaid, Landlord will not unreasonably withhold its consent to Tenant's
assignment of this Lease or subletting the space covered by its notice. Without
limitation, it shall be deemed reasonable for Landlord to withhold its consent
to Tenant's assignment of this Lease or subletting the space covered by its
notice if the proposed assignee or sublessee is a tenant or occupant of the
Building or an affiliate (a person controlling, controlled by or under common
control with) of a tenant or occupant of the Building.
D. If Tenant, having first obtained Landlord's consent to any assignment
or sublease, or if Tenant or a trustee in bankruptcy for Tenant pursuant to the
Bankruptcy Code, shall assign this Lease or sublet the Premises, or any part
thereof, at a rental or for other consideration in excess of the aggregate of
the Base' Rent, operating Cost Share Rent and Tax Share Rent due and payable by
Tenant under this Lease, then Tenant shall pay to Landlord as Additional Rent
one-half of such excess rent or other consideration within ten (10) days after
receipt thereof from time to time.
E. If Tenant shall assign this Lease as permitted herein, the assignee
shall expressly assume all of the obligations of Tenant hereunder and agree to
comply with and be bound by all of the terms, provisions and conditions of this
Lease, in a written instrument satisfactory to Landlord and furnished to
Landlord not later than fifteen (15) days prior to the effective date of the
assignment. If Tenant shall sublease the Premises as permitted herein, Tenant
shall obtain and furnish to Landlord, not later than fifteen (15) days prior to
the effective date of such sublease and in form satisfactory to Landlord, the
written agreement of such subtenant that it shall comply with and be bound by
all of the terms, provisions and conditions of this Lease and that it will
attorn to Landlord, at Landlord's option and written request, in the event this
Lease terminates before the expiration of the sublease.
F. If Tenant is a corporation whose stock is not publicly traded, any
transaction or series of transactions (including, without limitation, any
dissolution, merger, consolidation or other reorganization of Tenant, or any
issuance, sale, gift, transfer or redemption of any capital stock of Tenant,
whether voluntary, involuntary or by operation of law, or any combination of any
of the foregoing transactions) resulting in the transfer of control of Tenant,
other than by reason of death, shall be deemed to be a voluntary assignment of
this Lease by Tenant subject to the provisions of this Section 14. If Tenant is
a partnership, any transaction or series of transactions (including without
limitation any withdrawal or admittance of a partner or any change in any
partner's interest in Tenant, whether voluntary, involuntary or by operation of
law, or any combination of any of the foregoing transactions) resulting in the
transfer of control of Tenant, other than by reason of death, shall be deemed to
be a voluntary assignment of this Lease by Tenant subject to the provisions of
this Section 14. The term "control" as used in this Section 14F means the power
to directly or indirectly direct or cause the direction of the management or
policies of Tenant. If Tenant is a corporation, a change or series of changes in
ownership of stock which would result in direct or indirect change in ownership
by the stockholders or an affiliated group of stockholders of less than fifty
percent (50%) of the outstanding stock as of the date of the execution and
delivery of this Lease shall not be considered a change of control.
Notwithstanding anything contained herein to the contrary, Tenant may assign
this Lease or sublet the Premises, or any part thereof, to any entity
controlling
30.
Tenant, controlled by Tenant or under common control with Tenant, without the
prior written consent of Landlord.
G. Any assignment, subletting, use, occupancy, transfer or encumbrance of
this Lease or the Premises without Landlord's prior written consent shall be of
no effect and shall, at the option of Landlord, constitute a default under this
Lease.
15. SALE BY LANDLORD. In the event of sale, conveyance, assignment or
transfer by Landlord of its interest in the Project or in the Building or in
this Lease, the same shall operate to release Landlord (subject to the second
paragraph of Section 17 hereof) from any future obligations and any future
liability for or under any of the covenants or conditions, express or implied,
herein contained in favor of Tenant, and in such event, and with respect to such
obligations, covenants and conditions, Tenant agrees to look solely to the
successor in interest of Landlord in and to this Lease. This Lease shall not be
affected by any such sale, conveyance or transfer.
16. ESTOPPEL CERTIFICATE. Landlord shall, at the request of Tenant and
Tenant shall at the request of Landlord at any time and from time to time upon
not less than ten (10) days, prior written notice, execute, acknowledge in
recordable form, and deliver to the other, or for the Tenant to its auditor or a
prospective purchaser of its business or assets, or to its assignee or subtenant
if acceptable to Landlord, or for the Landlord to Landlord's mortgagee, the
lessor under any Ground Lease, auditors or a prospective purchaser of the
Project or any part thereof, a certificate stating that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect), and the dates to which the rent and other charges are paid, and
that Tenant is paying rent on a current basis with no offsets or claims, and
there are not, to Tenant's or Landlord's knowledge, as the case may be, any
uncured defaults on the part of Landlord or of Tenant (or specifying such
offsets, claims or defaults, if any are claimed). Such certificate may require
the party giving it to specify the date of commencement of rent, the
Commencement Date, the Termination Date, the Base Rent, current Operating Cost
Share Rent and Tax Share Rent estimates, the date to which rent has been paid,
whether or not Landlord has completed any improvements required to be made to
the Premises and such other matters as may be required. It is expressly
understood and agreed that any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of the Project or by
any ground lessor, or by a purchaser or assignee or lender to Tenant or to
auditors of either party hereto or by any other person to whom it is delivered.
The failure to deliver such statement within the time required hereunder shall,
at the option of the requesting party, be a default under this Lease, or be
conclusive evidence, binding upon the nonperforming party that this Lease is in
full force and effect, without modification except as may be represented by the
requesting party, that there are no uncured defaults by the requesting party and
that not more than one (1) month's rent has been paid in advance, and the
nonperforming party shall be estopped from asserting any defaults known to it at
that time.
17. SECURITY DEPOSIT. Tenant has deposited with Landlord security for the
full and faithful performance of every provision of this Lease to be performed
by Tenant in the amount set forth as Item 9 in the Schedule. If Tenant defaults
with respect to any provision of this Lease, Landlord may use all or any part of
this security deposit for the payment of any rent
31.
and any other sum due or in default, or for the payment of any other amount
which Landlord may spend or become obligated to spend by reason of Tenant's
default, or to compensate Landlord for any loss or damage which Landlord may
suffer by reason of Tenant's default. If any portion of such deposit is to be
used, Tenant shall within five (5) days after written demand therefor deposit
cash with Landlord in an amount sufficient to restore the security deposit to
its original amount and Tenant's failure to do so shall be a material breach of
this Lease. Landlord shall not be required to keep this security deposit
separate from its general funds and Tenant shall not be entitled to interest on
such deposit. If Tenant shall fully and faithfully perform every provision of
this Lease to be performed by it, the security deposit or any balance thereof
shall be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) at the expiration of this Lease and upon vacation
of the Premises in accordance with the provisions hereof. Said security deposit
shall not be deemed an advance payment of rent or a measure of Landlord's
damages for any default hereunder by Tenant.
Tenant acknowledges that Landlord has the right to transfer all or any part
of its interest in the Project or this Lease, and Tenant agrees that in the
event of any such transfer, Landlord shall have the right to transfer such
security deposit to the transferee. Upon delivery by Landlord to Tenant of such
transferee's written acknowledgement of its receipt of such security deposit,
Landlord shall thereby be released by Tenant from all liability or obligation
for the return of such deposit and Tenant agrees to look solely to such
transferee for the return of the security deposit.
18. EXCUSE OF EITHER PARTY'S INABILITY TO PERFORM; EITHER PARTY'S DEFAULT.
Except as specifically provided to the contrary in this Lease and for all
obligations of Tenant under this Lease regarding the payment of money, this
Lease and the obligation of Tenant to pay rent hereunder and perform all of
Tenant's covenants and agreements hereunder shall not be impaired nor shall
either party be in default hereunder because it is unable to fulfill any of its
obligations under this Lease, if the affected party is prevented or delayed from
so doing by any of the following (which shall be referred to herein as a "Force
Majeure"): any accident, breakage, repairs, alterations, improvements, strike or
labor troubles, or any other cause whatsoever beyond the reasonable control of
the affected party, including, but not limited to, energy shortages or
governmental preemption in connection with a national emergency, or by reason of
government laws or any rule, order or regulation of any department or
subdivision thereof of any governmental agency, or by reason of the conditions
of supply and demand which have been or are affected by war or other emergency.
19. PERSONAL PROPERTY AND TENANT FIXTURES. Landlord hereby specifically
waives any right it may have under Illinois statutory or common law to a
security interest or any other lien rights in any of Tenant's personal property
or fixtures situated on the Premises.
20. NOTICES. All notices and approvals to be given by one party to the
other party under this Lease shall be given in writing, mailed or delivered as
follows
32.
A. To Landlord as follows:
Teachers Insurance and Annuity Teachers Insurance and Annuity
Association of America Association of America
c/o Office of the Building Manager 000 Xxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxxxxx 00000 Attn: Vice President
or to such other person at such other address designated by notice to Tenant.
B. To Tenant at the place set forth as Item 10 on the Schedule and at the
Premises or at such other address designated by notice to Landlord.
Mailed notices shall be sent by United States Certified or Registered Mail,
postage prepaid. Mailed notices shall be deemed to have been given 2 business
days after posting in the United States mails, and notices delivered personally
shall be deemed to have been given upon delivery or attempted delivery.
21. QUIET POSSESSION. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall at all times
during the Term herein granted and subject to the provisions of this Lease
peacefully and quietly have and enjoy the possession of the Premises without any
encumbrance or hindrance by, from or through Landlord, its successors or
assigns.
22. REAL ESTATE BROKER. Both parties represent to the other that they have
not dealt with any real estate broker except for Xxxxxx-Xxxxxxx Management
Corporation and that broker listed in Item 11 in the Schedule, with respect to
this Lease and, to their knowledge no other broker initiated or participated in
the negotiation of this Lease, submitted or showed the Premises to Tenant or is
entitled to any commission in connection with this Lease. Both parties agree to
indemnify and hold the other harmless from all claims from any other real estate
broker claiming through such indemnifying party for commission or fees in
connection with this Lease.
23. CONDEMNATION. If all or any portion of the Project or Premises are
taken by eminent domain so that the Premises cannot be reasonably used by Tenant
for the purposes for which they are demised, then at the option of either party
this Lease may be terminated effective as of the date of the taking and all rent
reserved hereunder shall be paid to the date of such taking. The entire award
for any total or partial taking shall be paid to and retained by Landlord.
Nothing contained in this Section 23 shall prohibit Tenant from instituting
separate proceedings to pursue a separate award compensating it for relocation,
business loss and other costs incurred by Tenant in connection with a
condemnation or taking, as long as such award in no way reduces the award
otherwise payable to Landlord. If any condemnation proceeding shall be
instituted in which it is sought to take or damage any part of the Project, or
if the grade of any street or alley adjacent to the Project is changed by any
competent authority and such change of grade makes it necessary or desirable to
remodel the Project to conform to the changed grade, Landlord shall have the
right to terminate this Lease upon not less than ninety (90) days' notice prior
to the date of termination designated in the notice. No money or other
consideration shall be payable by Landlord to Tenant for said termination, and
the Tenant shall have no right to share in the
33.
condemnation award or in any judgment for damages caused by said eminent domain
proceeding.
24. SPRINKLERS. If the sprinkler system installed at the Project or any of
its appliances shall be damaged or injured or not in proper working order by
reason of any act or omission of Tenant, Tenant's agents, servants, employees,
licensees or invitees, Tenant shall forthwith restore the same to good working
condition at its own expense. Tenant shall not do or permit anything to be done
upon the Premises, or bring or keep anything thereon which is in violation of
rules, regulations and requirements of the Illinois Inspection and Rating
Bureau, Fire Insurance Rating Organization or any similar authority having
jurisdiction over the Building, and if the Board of Fire Underwriters or Fire
Insurance Exchange or any bureau, department or official of the state or city
government, requires or recommends that any changes, modifications, alterations
or additional sprinkler heads or other equipment be made or supplied by reason
of Tenant's business or acts or the location of partitions, trade fixtures, or
other contents of the Premises, or if any such changes, modifications,
alterations, additional sprinkler heads or other equipment, become necessary to
prevent the imposition of a penalty or charge against the full allowance for a
sprinkler system in the fire insurance rate as fixed by said Exchange, or by any
fire insurance company, Tenant shall, at Tenant's expense, promptly make and
supply such changes, modifications, alterations, additional sprinkler heads or
other equipment.
25. MISCELLANEOUS.
A. Covenants Binding on Successors. Subject to the terms and provisions
--------------------------------
of Section 14 of this Lease, each provision of this Lease shall extend to and
shall, as the case may require, bind and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives and successors and
assigns.
B. Date Payments Are Due. All amounts owed to Landlord hereunder, for
---------------------
which the date of payment is not expressly fixed herein, shall be paid, within
thirty (30) days from the date Landlord renders statements of account therefor
and shall bear interest at the rate provided in Section 2D(3) from the date due
until paid.
C. Meaning of "Re-entry" and "Landlord". The words "re-enter" and "re-
-----------------------------------
entry" as used in this Lease are not restricted to their technical legal
meaning. The term "Landlord," as used in this Lease, means only the landlord
from time to time, and upon conveying or transferring its interest, such
conveying or transferring landlord .shall be relieved from any further
obligation or liability pursuant to Sections 13B(1) , 13C, 15 and 17 of this
Lease.
D. Time Is of the Essence. Time is of the essence of this Lease and
----------------------
each and all of its provisions.
E. No Option. Submission of this instrument for examination or signature
---------
by Tenant or by Landlord does not constitute a reservation of or option for
lease, and it is not effective as a lease or otherwise until execution and
delivery by both Landlord and Tenant.
F. Severability. The invalidity or unenforceability of any provision
------------
hereof shall not affect or impair any other provisions.
34.
G. Governing Laws. This Lease shall be governed by and construed pursuant
--------------
to the laws of the State of Illinois.
H. Lease Modification. Should any mortgage require a modification of this
-------------------
Lease, which modification will not bring about any increased cost or expense to
Tenant or in any other way substantially change the rights and obligations of
Tenant hereunder, Tenant agrees that this Lease may be so modified.
I. No Oral Modification. No subsequent alteration, amendment, change or
---------------------
addition to this Lease shall be binding upon Landlord or Tenant unless in
writing signed by both parties.
J. Litigation and Arbitration Costs. In the event of any litigation or
--------------------------------
arbitration between the parties hereto with respect to the enforcement or
interpretation of this Lease, the nonprevailing party shall pay the attorney's
fees, court costs and other costs of the prevailing party, provided that Tenant
shall notify Landlord of any alleged breach of Landlord's obligations under this
Lease and shall take no action with respect to such breach as long as Landlord
immediately commences to cure and diligently proceeds to complete the cure of
said breach within a reasonable time period. Each party hereto shall pay the
attorney's fees, court costs (if any) and other costs incurred by the other
party in any litigation, negotiation or transaction in which such party causes
the other party, without the other party's fault, to become involved or
concerned (including, without limitation, any request for Landlord's consent to
a sublet or assignment).
K. Captions. The marginal headings and titles to the paragraphs of this
--------
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
L. Remedies and Rights May Be Exercised by Landlord in Its Own Name:
----------------------------------------------------------------
Authority to Execute This Lease. All rights and remedies of Landlord under this
-------------------------------
Lease, or that may be provided by law, may be exercised by Landlord in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies, may be commenced
and prosecuted to final judgment and executed by Landlord in its own name
individually or in its name by any agent thereof. Landlord and Tenant each
represents to the other that each has full power and authority to execute this
Lease and to make and perform the agreements herein contained.
M. Payments to Affiliates. Nothing in this Lease shall be construed to
----------------------
prevent Landlord from paying for services rendered or materials delivered with
respect to the Project or to the Premises (including, without limitation,
management services and contracting out capital improvements .or other capital
repairs or construction items) by affiliates of Landlord provided that the fees
or costs of such services and materials are at market rates in the Chicago
metropolitan area. All such fees or costs paid by Landlord to such affiliates
shall be deemed to constitute Operating Costs on the same terms and conditions
as if such fees and costs were paid to non-affiliates of Landlord.
N. Entire Agreement. This Lease (including, without limitation, any Rider
----------------
attached hereto and signed by both parties and Appendices A through E, all of
which are incorporated
35.
herein by this reference) constitutes the entire agreement between the Landlord
and the Tenant. Tenant acknowledges that it has not been induced to enter this
Lease by any promises, assurances, agreements, statements or representations
(collectively, "Representations") which are not set forth in this Lease
(including without limitation any Representations concerning Operating Costs or
Taxes). Tenant acknowledges that it has not relied on any such Representations,
agrees that no such Representations shall be used in the construction or
interpretation of this Lease and agrees that Landlord shall have no liability
for any consequences arising as a result of any such Representations.
O. Landlord's Title. Landlord's title is and always shall be paramount to
----------------
the interest of Tenant, and nothing herein contained shall empower Tenant to do
any act which can, shall or may encumber Landlord's title.
P. Light and Air Rights. This Lease does not grant any rights to light or
--------------------
air over or about the Project. Landlord specifically excepts and reserves to
itself the use of any roofs, the exterior portions of the Premises, all rights
to and the land and improvements below the improved floor level of the Premises,
the improvements and air rights above the Premises and the improvements and air
rights located outside the demising walls of the Premises, and such areas within
the Premises as are required for installation of utility lines and other
installations required to serve any occupants of the Building and the right to
maintain and repair the same, and no rights with respect thereto are conferred
upon Tenant unless otherwise specifically provided herein.
Q. Consents. Except as otherwise expressly set forth herein, wherever the
--------
consent or approval of either Landlord or Tenant is required by the provisions
of this Lease, such party shall not unreasonably withhold or delay such consent
or approval.
R. Landlord's Agents. Any rights reserved or granted to Landlord
-----------------
hereunder may be exercised by Landlord or any of its agents, employees,
contractors or designees.
S. Terms "Landlord" and "Tenant". The words "Landlord" and "Tenant"
----------------------------
whenever used in this Lease shall be construed to mean the plural where
necessary, and the necessary grammatical changes required to make the provisions
hereof apply either to entities or individuals, or men or women, shall in all
cases be assumed as though in each case fully expressed.
T. Rent Not Based on Income. It is agreed by Landlord and Tenant that no
------------------------
rental or other payment for the use, occupancy or utilization of the Premises
demised hereunder shall be, or is, based in whole or in part on the net income
or profits derived by any person from the Building or the Premises so leased,
used, occupied, or utilized, and Tenant further agrees that it will not enter
into any sublease, license, concession or other agreements for any use,
occupancy or utilization of the Premises which provides for a rental or other
payment for such use, occupancy or utilization based in whole or in part on the
net income or profits derived by any person from the Premises so leased, used,
occupied or utilized.
U. Exclusivity. Tenant is not granted by this Lease and shall not be
-----------
entitled to have any exclusive rights in the Building other than the rights of
its occupancy.
36.
V. No Recording by Tenant. Tenant shall not record or file in any public
----------------------
records this Lease or any portion thereof.
26. UNRELATED BUSINESS INCOME.
A. Landlord shall have the right at any time and from time to time to
unilaterally amend the provisions of this Lease, if Landlord is advised by its
counsel that all or any portion of the monies paid by Tenant to Landlord
hereunder are, or may be deemed to be, unrelated business income within the
meaning of the United States Internal Revenue Code or regulations issued
thereunder, and Tenant agrees that it will execute all documents or instruments
necessary to effect such amendment or amendments, provided that no such
amendment shall result in Tenant having to pay in the aggregate more money on
account of its occupancy of the Premises under the terms of this Lease, as so
amended, and provided further that no such amendment shall result in Tenant
receiving fewer services or services of a lesser quality than it is presently
entitled to receive under this Lease.
B. Any services which Landlord is required to furnish pursuant to the
provisions of this Lease may, at Landlord's option, be furnished from time to
time, in whole or in part, by employees of Landlord or the building manager of
the Project or its employees or by one or more third persons hired by Landlord
or the building manager of the Project. Tenant agrees that upon Landlord's
written request it will enter into direct agreements with the building manager
of the Project or other parties designated by Landlord for the furnishing of any
such services required to be furnished by Landlord hereunder, in form and
content approved by Landlord, provided however that no such contract shall
result in Tenant having to pay in the aggregate more money on account of its
occupancy of the Premises under the terms of this Lease, and provided further
that no such contract shall result in Tenant receiving fewer services or
services of a lesser quality than it is presently entitled to receive under this
Lease.
27. HAZARDOUS MATERIALS. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, nor allow to be brought into
the Project any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials, without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local
laws and the regulations adopted under these acts. If any present or future
lender or governmental agency shall ever require testing to ascertain whether or
not there has been any release of hazardous materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as Additional Rent
hereunder if such requirement applies to the Premises. In addition, Tenant shall
execute affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant shall
indemnify Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the
37.
Premises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the Lease Term.
28. EXCULPATORY PROVISIONS. It is expressly understood and agreed by and
between the parties hereto, anything herein to the contrary notwithstanding,
that each and all of the representations, warranties, covenants, undertakings
and agreements herein made on the part of any Landlord while in form purporting
to be the representations, warranties, covenants, undertakings and agreements of
such Landlord are nevertheless each and every one of them made and intended, not
as personal representations, warranties, covenants, undertakings and agreements
by such Landlord, or for the purpose or with the intention of binding such
Landlord personally, but are made and intended for the purpose only of
subjecting such Landlord's interest in the Premises and the Project to the terms
of this Lease and for no other purpose whatsoever, and in case of default
hereunder by such Landlord (or default through, under or by any of the
beneficiaries of any Landlord which is a land trust, or any of the agents,
servants, employees or representatives of such Landlord or said beneficiaries),
Tenant shall look solely to the interests of such Landlord in the Premises and
the Project; that no Landlord nor any of the beneficiaries of any Landlord which
is a land trust shall have any personal liability to pay any indebtedness
accruing hereunder or to perform any covenant, either express or implied, herein
contained and no liability or duty shall rest upon any Landlord which is a land
trust to sequester the trust estate or the rents, issues and profits arising
therefrom, or the proceeds arising from any sale or other disposition thereof;
that no personal liability or personal responsibility of any sort is assumed by,
nor shall at any time be asserted or enforceable against, any Landlord, or
against any of the beneficiaries of any Landlord which is a land trust, on
account of this Lease or on account of any representation, warranty, covenant,
undertaking or agreement of Landlord in this Lease contained, either express or
implied, all such personal liability, if any, being expressly waived and
released by Tenant and by all persons claiming by, through or under Tenant; that
this Lease, if executed by any Landlord which is a land trust, is executed and
delivered solely in the exercise of the powers conferred upon it as such
Trustee; and that as to any partnership which is a Landlord or the beneficiary
of a Landlord which is a land trust, a deficit capital account of any partner of
such partnership shall not be deemed to be an asset or property of such
partnership.
29. EXTENSION OPTION. Subject to Sections 29B and 29C below, the Term of
this Lease may be extended, at the option of Tenant, for one additional period
of three (3) years (the "Renewal Term"). The Renewal Term shall be upon the same
terms, covenants and conditions contained in this Lease, except for the amount
of Base Rent payable during the Renewal Term, and any reference in the Lease to
the "Term" of the Lease shall be deemed to include the Renewal Term and apply
thereto, unless it is expressly provided otherwise. Tenant shall have no
extension option beyond the aforesaid three year extension option. Any
termination of this Lease during the initial Term of this Lease shall terminate
all rights under this Section 29.
A. The initial Base Rent during the Renewal Term for any space then
constituting a portion of the Premises shall be at a rate equal to the greater
of (i) the Base Rent (as escalated pursuant to Section 2A above) applicable to
the third Lease Year, and (ii) the then prevailing market rate for fully
creditworthy tenants for comparable space in the Building and other first class
office buildings in the vicinity of the Building as reasonably determined by
Landlord.
38.
Tenant's obligation to pay Operating Cost Share Rent and Tax Share Rent pursuant
to Section 2A of the Lease shall continue during the Renewal Term.
B. Such option to extend shall be exercised by Tenant delivering written
notice to Landlord not less than nine (9) full calendar months prior to the
expiration of the initial Term of this Lease. Thereafter, Landlord shall
calculate the prevailing market rate for the Premises, which calculation shall
reflect the market rate that would be payable per annum for a term commencing on
the first day of the Renewal Term, provided that such calculation shall be final
and shall not be recalculated at the actual commencement of the Renewal Term (if
any).
C. Tenant's right to exercise its option to extend this Lease pursuant to
this Section 29, is subject to the following conditions: (i) that on the date
that Tenant delivers its final binding written notice of its election to
exercise its option to extend, Tenant is not in default under any of the terms,
covenants or conditions of this Lease, after the expiration of any applicable
notice and cure periods, and (ii) that Tenant shall not have assigned this Lease
or sublet the Premises at any time during the period commencing with the date
that Tenant delivers its final binding written notice to Landlord of its
exercise of such option to extend and ending on the commencement date of the
Renewal Term, or at any time prior to such period, if such assignment or
sublease extends into such period.
D. If Tenant fails to give its initial non-binding written notice of
intent or its final binding written notice of intent to exercise its option to
extend when due as provided in this Section 29, Tenant will be deemed to have
waived such option to extend.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation
By: ____________________________________
Print Name _____________________________
Title __________________________________
TENANT:
MRJ INC., a __________________corporation
By: ___________________________________
Print Name ____________________________
Title _________________________________
39.
APPENDIX A
[PLAN APPEARS HERE]
Page 1 of 1
APPENDIX B
CLEANING SCHEDULE
Landlord shall furnish janitorial service for offices and common areas as
described below five nights per week unless otherwise specified and except
Holidays:
1. LOBBIES AND ENTRANCE AREAS
Directories shall be wiped clean nightly.
Public telephones shall be cleaned nightly.
Entrance door glass shall be cleaned nightly.
Cigarette urns shall be cleaned nightly.
Carpets, runners and mats shall be vacuumed nightly.
Terrazzo flooring shall be swept and mopped nightly.
Terrazzo flooring shall be buffed nightly.
Terrazzo flooring shall be recoated bi-weekly.
Terrazzo flooring shall be completely stripped and refinished bi-
monthly.
Terrazzo side panels shall be spot cleaned nightly.
Terrazzo side panels shall be completely washed, dried and polished
quarterly.
2. ELEVATORS--PUBLIC & FREIGHT
Elevator doors, tracks, metal work shall be dusted and wiped down
nightly.
Elevator control panels shall be washed and polished nightly.
Elevator ceiling vents and light fixtures shall be dusted weekly.
Elevator carpets shall be vacuumed and spot cleaned nightly.
Elevator carpets shall be shampooed monthly or as required.
3. WASHROOMS
Toilets and urinals shall be cleaned on all surfaces nightly.
Wash basins, shelves, dispensers and all other washroom fixtures shall
be cleaned nightly.
Mirrors shall be cleaned and polished nightly.
Chrome and other bright work including exposed plumbing, toilet seat
hinges, etc. shall be cleaned nightly.
Partitions and walls to be spot cleaned nightly.
Waste receptacles shall be emptied and cleaned nightly.
Washroom floors shall be swept and floor wet mopped nightly.
Washroom dispenser supplies shall be replenished nightly.
4. GENERAL DUSTING
Horizontal surfaces (cleared desk tops, furniture tops, file cabinets,
etc.) shall be dusted nightly.
Window xxxxx and frames, partition tops, coat racks, etc. will be
dusted weekly.
APPENDIX B
Page 1 of 1
High dusting shall be performed monthly and includes the following:
pictures and frames not reached in nightly cleaning; vertical
surfaces such as partitions and ceiling vents.
Venetian blinds shall be dusted semi-annually.
5. CARPET AREAS
All carpets shall be vacuumed nightly and vacuumed edge to edge once
per week.
Carpeting in traffic areas shall be thoroughly vacuumed nightly.
Carpeting to be spot cleaned as required.
Corridor carpeting to be bonnet cleaned monthly.
6. TRASH REMOVAL
Waste baskets and other waste receptacles shall be emptied nightly.
Waste material shall be removed to a designated area and placed in the
containers to be furnished by Landlord.
7. PARTITIONS GLASS AND INTERIOR ENTRANCE DOORS
Interior partition glass and doors shall be spot cleaned nightly.
Interior partition glass and door glass shall be washed monthly in all
public areas and quarterly in tenant areas.
Exterior window cleaning is not included.
8. OFFICE FURNITURE
Cleared desk tops, to be dusted nightly.
Telephones shall be dusted daily and sanitized weekly.
File cabinets, office furniture (tops, sides and legs) shall be
maintained in a dirt and dust free condition.
File cabinets and desk fronts shall be spot cleaned nightly.
9. RESILIENT AND HARD FLOORS
Only approved floor finishes which are non-staining and provide a high
degree of slip prevention shall be utilized.
Tenant non-carpeted areas shall be swept nightly and spot damp mopped.
Tenant resilient tile floors shall be damp mopped a minimum of once
per week and buffed or spray buffed as required.
Tenant high traffic areas shall be swept and mopped nightly and spray
buffed as required.
Tenant resilient tile floors and hard floors shall be thoroughly
stripped and refinished semi-annually.
Stairwells will be monitored daily, swept and damp mopped as required.
APPENDIX B
Page 2 of 2
10. MISCELLANEOUS
Drinking fountains shall be cleaned, sanitized and polished nightly.
Doors and switch plates shall be spot cleaned daily to remove finger
marks and smudges.
Wall surfaces that can safely be spot cleaned without damage to paint
shall be cleaned as required.
Premises shall be left locked, with only designated lights left on.
APPENDIX B
Page 3 of 3
APPENDIX C
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near
the glass of any window, door, partition or wall which may, in Landlord's
judgment, appear unsightly from outside of the Project.
2. The Project directory shall be available to Tenant solely to display
names and their location in the Project, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. Tenant shall lend its
full cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and shall move all supplies, furniture and equipment as soon
as received directly to the Premises and move all such items and waste, being
taken from the Premises (other than waste customarily removed by employees of
the Building) directly to the shipping platform at or about the time arranged
for removal therefrom. The halls, passages; exits, entrances, elevators,
stairways, balconies and roof are not for the use of the general public and
Landlord shall, in all cases, retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord, reasonably
exercised, shall be prejudicial to the safety, character, reputation and
interests of the Project. Neither Tenant nor any employee or invitee of Tenant
shall go upon the roof of the Project.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall not
be used for any purposes other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein, and to the
extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness
6. Tenant shall not install or operate any refrigerating, heating or air
conditioning apparatus or carry on any mechanical business without the prior
written consent of Landlord; use the Premises for housing, lodging or sleeping
purposes; or permit preparation or warming of food in the Premises (warming of
coffee and individual meals with employees and guests excepted). Tenant shall
not occupy or use the Premises or permit the Premises to be occupied or used for
any purpose, act or thing which is in violation of any public law, ordinance or
governmental regulation or which may be dangerous to persons or property.
7. Tenant shall not bring upon, use or keep in the Premises or the
Project any kerosene, gasoline or inflammable or combustible fluid or material,
or any other articles deemed hazardous to persons or property, or use any method
of heating or air conditioning other than that supplied by Landlord.
APPENDIX C
Page 1 of 1
8. Landlord shall have sole power to direct electricians to where and how
telephone and other wires are to be introduced. No boring or cutting for wires
is to be allowed without the consent of Landlord. The location of telephones,
call boxes and other office equipment affixed to the Premises shall be subject
to the approval of Landlord.
9. No additional locks shall be placed upon any doors, windows or
transoms in or to the Premises. Tenant shall not change existing locks or the
mechanism thereof. Upon termination of the lease, Tenant shall deliver to
Landlord all keys and passes for offices, rooms, parking lot and toilet rooms
which shall have been furnished Tenant. In the event of the loss of keys so
furnished, Tenant shall pay Landlord therefor. Tenant shall not make, or cause
to be made, any such keys and shall order all such keys solely from Landlord and
shall pay Landlord for any keys in addition to the two sets of keys originally
furnished by Landlord for each lock.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Project or carried up or down in the freight elevator, except
between such hours and in such freight elevator as shall be designated by
Landlord. Tenant shall not take or permit to be taken in or out of other
entrances of the Building or take or permit on other elevators, any item
normally taken in or out through the trucking concourse or service doors or in
or on freight elevators.
12. Tenant shall cause all doors to the Premises to be closed and securely
locked and shall turn off all utilities, lights and machines, before leaving the
Project at the end of the day.
13. Without the prior written consent of Landlord, Tenant shall not use
the name of the Project or any picture of the Project in connection with, or in
promoting or advertising the business of, Tenant, except Tenant may use the
address of the Project as the address of its business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Project's heating and air
conditioning, and shall refrain from attempting to adjust any controls, other
than room thermostats installed for Tenant's use. Tenant shall keep corridor
doors closed.
15. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage, which may arise from a cause other than Landlord's
negligence, which includes keeping doors locked and other means of entry to the
Premises closed and secured.
16. Peddlers, solicitors and beggars shall be reported to the office of
the Projector as Landlord otherwise requests.
17. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Project in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities.
APPENDIX C
Page 2 of 2
18. No bicycle or other vehicle and no animals or pets shall be allowed in
the Premises, halls, freight docks, or any other parts of the Building except
that blind persons may be accompanied by "seeing eye" dogs. Tenant shall not
make or permit any noise, vibration or odor to emanate from the Premises, or do
anything therein tending to create, or maintain, a nuisance, or do any act
tending to injure the reputation of the Building.
19. Tenant acknowledges that Building security problems may occur which
may require the employment of extreme security measures in the day-to-day
operation of the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and/or its agents, in
their sole discretion, require that persons entering or leaving the Project or
the Property identify themselves to watchmen or other employees designated by
Landlord, by registration, identification or otherwise. Uniformed guards will be
on duty at the Project 24 hours a day, 7 days a week.
(b) Tenant agrees that it and its employees will cooperate fully with
Project employees in the implementation of any and all security procedures.
(c) Such security measures shall be the sole responsibility of Landlord,
and Tenant shall have no liability for any action taken by Landlord in
connection therewith.
20. Tenant shall not do or permit the manufacture, sale, purchase, use or
gift of any fermented, intoxicating or alcoholic beverages without obtaining
written consent of Landlord.
21. Tenant shall not disturb the quiet enjoyment of any other tenant.
22. Tenant shall not provide any janitorial services or cleaning without
Landlord's written consent and then only subject to supervision of Landlord and
at Tenant's sole responsibility and by janitor or cleaning contractor or
employees at all times satisfactory to Landlord.
23. Landlord may retain a pass key to the Premises and be allowed
admittance thereto at all times to enable its representatives to examine the
Premises from time to time and to exhibit the same and Landlord may place and
keep on the windows and doors of the Premises at any time signs advertising the
Premises for rent.
24. No equipment, mechanical ventilators, awnings, special shades or other
forms of window covering shall be permitted either inside or outside the windows
of the Premises without the prior written consent of Landlord, and then only at
the expense and risk of Tenant, and they shall be of such shape, color,
material, quality, design and make as may be approved by Landlord.
25. Tenant shall not during the term of this Lease canvas or solicit other
tenants of the Building for any purpose.
APPENDIX C
Page 3 of 3
26. Tenant shall not install or operate any phonograph, musical or sound
producing instrument or device, radio receiver or transmitter, TV receiver or
transmitter, or similar device in the Building, nor install or operate any
antenna, aerial, wires or other equipment inside or outside the Building, nor
operate any electrical device from which may emanate electrical waves which may
interfere with or impair radio or television broadcasting or reception from or
in the Building or elsewhere, without in each instance the prior written
approval of Landlord. The use thereof, if permitted, shall be subject to control
by Landlord to the end that others shall not be disturbed.
27. Tenant shall promptly remove all rubbish and waste from the Premises.
28. Tenant shall not exhibit, sell or offer for sale, rent or exchange in
the Premises or at the Project any article, thing or service except those
ordinarily embraced within the use of the Premises specified in Section 6 of
this Lease, without the prior written consent of Landlord.
29. Tenant shall list all furniture, equipment and similar articles Tenant
desires to remove from the Premises or the Building and deliver a copy of such
list to Landlord and procure a removal permit from the Office of the Building
authorizing Building employees to permit such articles to be removed.
30. Tenant shall not overload any floors in the Premises or any public
corridors or elevators in the Building.
31. Tenant shall not do any painting in the Premises, or xxxx, paint, cut
or drill into, drive nails or screws into, or in any way deface any part of the
Premises or the Building, outside or inside, without the prior written consent
of Landlord.
32. Whenever Landlord's consent, approval or satisfaction is required
under these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance, such consent or approval may be
granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole judgment.
33. Tenant and its employees shall cooperate in all fire drills conducted
by Landlord in the Building.
34. Tenant shall have access to the Premises 24 hours a day.
APPENDIX C
Page 4 of 4
APPENDIX D
Intentionally Omitted.
APPENDIX D
Page 1 of 1
APPENDIX E
MORTGAGES CURRENTLY AFFECTING THE PROJECT
Mortgage, Assignment of Leases and Rents, and Security Agreement and
Fixture Filing dated October 30, 1986 by and between 000 Xxxxxxx Xxxxx, Ltd. and
American National Bank and Trust Company of Chicago not individually but solely
as Trustee under a certain Trust Agreement dated March 28, 1984 and known as
Trust No. 60679 (collectively, the "Mortgagor") and Teachers Insurance and
Annuity Association of America (the "Mortgagee").
APPENDIX E
Page 1 of 1
