EXHIBIT 10.16
XXX XXXXX XXXXXXXXX XXXXX
Xxxxxxx, Xxxxxxxx
OFFICE LEASE AGREEMENT
BETWEEN
TWO NORTH RIVERSIDE PLAZA JOINT VENTURE LIMITED PARTNERSHIP, an Illinois
limited partnership, sole beneficiary of LaSalle National Trust, N.A.,
successor trustee under Trust Agreement dated June 26, 1969 and known as
Trust No, 39712 ("LANDLORD") by its agent, EQUITY OFFICE PROPERTIES
MANAGEMENT CORP., a Delaware corporation
AND
iDINE REWARDS NETWORK INC., a Delaware corporation
("TENANT")
TABLE OF CONTENTS
I. Basic Lease Information.............................................. 1
II. Lease Grant.......................................................... 2
III. Adjustment of Commencement Date; Possession.......................... 2
IV. Rent................................................................. 3
V. Compliance with Laws; Use............................................ 7
VI. Security Deposit..................................................... 7
VII. Services to be Furnished by Landlord................................. 7
VIII. Leasehold Improvements............................................... 8
IX. Repairs and Alterations.............................................. 8
X. Use of Electrical Services by Tenant................................. 9
XI. Entry by Landlord.................................................... 10
XII. Assignment and Subletting............................................ 10
XIII. Liens................................................................ 11
XIV. Indemnity and Waiver of Claims....................................... 11
XV. Insurance............................................................ 12
XVI. Subrogation.......................................................... 12
XVII. Casualty Damage...................................................... 12
XVIII. Condemnation......................................................... 13
XIX. Events of Default.................................................... 13
XX. Remedies............................................................. 14
XXI. Limitation of Liability.............................................. 15
XXII. No Waiver............................................................ 15
XXIII. Quiet Enjoyment...................................................... 15
XXIV. Relocation........................................................... 15
XXV. Holding Over......................................................... 15
XXVI. Subordination to Mortgages; Estoppel Certificate..................... 16
XXVII. Attorneys' Fees...................................................... 16
XXVIII. Notice............................................................... 16
XXIX. Excepted Rights...................................................... 16
XXX. Surrender of Premises................................................ 17
XXXI. Demolition........................................................... 17
XXXII. Miscellaneous........................................................ 17
XXXIII. Entire Agreement..................................................... 18
i
OFFICE LEASE AGREEMENT
This Office Lease Agreement (the "Lease") is made and entered into as of May 5,
2003, by and between TWO NORTH RIVERSIDE PLAZA JOINT VENTURE LIMITED
PARTNERSHIP, an Illinois limited partnership, sole beneficiary of LaSalle
National Trust, N.A., successor trustee under Trust Agreement dated June 26,
1969 and known as Trust No. 39712 ("Landlord") by its agent, EQUITY OFFICE
PROPERTIES MANAGEMENT CORP., a Delaware corporation, and iDINE REWARDS NETWORK,
INC., a Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, and commonly known as Two North Riverside
Plaza.
B. "Rentable Square Footage of the Building" is deemed to be 512,944
square feet.
C. "Premises" shall mean the area shown on Exhibit A to this Lease. The
Premises are located on the 9th floor and known as suite number 950.
The "Rentable Square Footage of the Premises" is deemed to be 14,324
square feet. If the Premises include one or more floors in their
entirety, all corridors and restroom facilities located on such full
floor(s) shall be considered part of the Premises. Landlord and Tenant
stipulate and agree that the Rentable Square Footage of the Building
and the Rentable Square Footage of the Premises are correct and shall
not be remeasured. Notwithstanding anything to the contrary contained
in this Lease, commencing on the Commencement Date (as defined below),
Tenant shall have access to the entire Premises, however, initially
Tenant only requires approximately 10,000 rentable square feet of the
Premises (the "Initial Occupied Premises"). Commencing with the
Commencement Date, Tenant shall pay Base Rent on the Initial Occupied
Premises, but Additional Rent on all of the Premises. The Initial
Occupied Premises shall be increased over the Term (as defined below)
of the Lease, by increments of 1,000 or more rentable square feet (the
"Increased Occupied Premises") until the entire Premises is occupied
by Tenant. Notwithstanding anything in Section XI of the Lease to the
contrary, during the Term of the Lease, Tenant agrees that Landlord
shall have the right to enter the Premises from time to time to
determine the actual rentable square feet then being occupied by
Tenant.
D. "Base Rent" - Initial Occupied Premises:
Annual Rate Annual Monthly
Period Per Square Foot Base Rent Base Rent
------ --------------- ----------- ----------
09/01/03 - 08/31/04 $18.50 $185,000.04 $15,416.67
09/01/04 - 08/31/05 $19.00 $189,999.96 $15,833.33
09/01/05 - 08/31/06 $19.50 $195,000.00 $16,250.00
09/01/06 - 08/31/07 $20.00 $200,000.04 $16,666.67
09/01/07 - 08/31/08 $20.50 $204,999.96 $17,083.33
The Annual Base Rent and Monthly Base Rent shall be adjusted, from
time to time, to reflect the sum of the Initial Occupied Premises plus
the Increased Occupied Premises by the then Annual Rate Per Square
Foot.
E. "Tenant's Pro Rata Share": 2.7925%.
F. "Base Year" for Taxes: 2003; "Base Year" for Expenses: 2003.
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G. "Term": A period of 60 months and 0 days. The Term shall commence on
September 1, 2003 (the "Commencement Date") and, unless terminated
early in accordance with this Lease, end on August 31, 2008 (the
"Termination Date").
H. Tenant allowance(s): None.
I. "Security Deposit": None.
J. "Guarantor(s)": As the date hereof, there are no Guarantors.
K. "Broker(s)": Xxxxxx X. Xxxxxxx.
L. "Permitted Use": General office use.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to Tenant at
the Premises. Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
iDine Rewards Network Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, President and CEO
Phone #: 000-000-0000
Fax #: 000-000-0000
Landlord: With a copy to:
Two North Riverside Plaza Joint Equity Office Properties
Venture Limited Partnership Two North Riverside Plaza
c/o Equity Office Properties Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 00000
Suite 1430 Attention: Chicago Region Counsel
Xxxxxxx, Xxxxxxxx 00000
Attention: Building Manager
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address:
Equity Office Properties
DBA Two North Riverside Plaza
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
N. "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional Holidays
are commonly recognized by other office buildings in the area where
the Building is located.
O. "Landlord Work" means the work that Landlord is obligated to perform
in the Premises pursuant to a separate work letter agreement (the
"Work Letter"), if any, attached as Exhibit D. The occurrence of the
Commencement Date shall not be conditioned upon the performance of
work by Landlord.
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building shall mean 8:00 A.M. to 6:00
P.M. Mondays through Fridays, and 8:00 A.M. to 1:00 P.M. on Saturdays,
exclusive of Holidays.
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R. "Property" means the Building and the parcel(s) of land on which it is
located and, at Landlord's discretion, the Building garage and other
improvements serving the Building, if any, and the parcel(s) of land
on which they are located.
II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises from
Landlord, together with the right in common with others to use any portions of
the Property that are designated by Landlord for the common use of tenants and
others, such as sidewalks, unreserved parking areas, common corridors, elevator
foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. Adjustment of Commencement Date; Possession.
A. Intentionally Omitted.
B. Subject to Landlord's obligations under Section IX.B., the Premises
are accepted by Tenant in "as is" condition and configuration. By
taking possession of the Premises, Tenant agrees that the Premises are
in good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition of
the Premises or the Building. If Landlord is delayed delivering
possession of the Premises or any other space due to the holdover or
unlawful possession of such space by any party, Landlord shall use
reasonable efforts to obtain possession of the space. The Commencement
Date shall be postponed until the date Landlord delivers possession of
the Premises to Tenant free from occupancy by any party, and the
Termination Date, at the option of Landlord, may be postponed by an
equal number of days.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions of
this Lease and Tenant shall pay Rent (defined in Section IV.A.) to
Landlord for each day of possession before the Commencement Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent for
any days of possession before the Commencement Date during which
Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, equipment or other personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay Landlord,
without any setoff or deduction (but subject to abatement as provided
elsewhere in this Lease), the total amount of Base Rent and Additional
Rent due for the Term. "Additional Rent" means all sums (exclusive of
Base Rent) that Tenant is required to pay Landlord. Additional Rent
and Base Rent are sometimes collectively referred to as "Rent". Tenant
shall pay and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by Rent
under applicable Law. Base Rent and recurring monthly charges of
Additional Rent shall be due and payable in advance on the first day
of each calendar month without notice or demand, provided that the
installment of Base Rent for the first full calendar month of the Term
shall be payable upon the execution of this Lease by Tenant. All other
items of Rent shall be due and payable by Tenant on or before 30 days
after billing by Landlord. All payments of Rent shall be by good and
sufficient check or by other means (such as automatic debit or
electronic transfer) acceptable to Landlord. If Tenant fails to pay
any item or installment of Rent when due, Tenant shall pay Landlord an
administration fee equal to 3% of the past due Rent, provided that
Tenant shall be entitled to a grace period of 10 days for the first 2
late payments of Rent in a given calendar year. If the Term commences
on a day other than the first day of a calendar month or terminates on
a day other than the last day of a calendar month, the monthly Base
Rent and Tenant's Pro Rata Share of any Tax Excess (defined in Section
IV.B.) or Expense Excess (defined in Section IV.B.) for the month
shall be prorated based on the number of days in such calendar month.
Landlord's acceptance of less than the correct amount of Rent shall be
considered a payment on account of the earliest Rent due. No
endorsement or statement on a
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check or letter accompanying a check or payment shall be considered an
accord and satisfaction, and either party may accept the check or
payment without prejudice to that party's right to recover the balance
or pursue other available remedies. Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for the
Base Year (the "Expense Excess") and also the amount, if any, by which
Taxes (defined in Section IV.D.) for each calendar year during the
Term exceed Taxes for the Base Year (the "Tax Excess"). If Expenses
and/or Taxes in any calendar year decrease below the amount of
Expenses and/or Taxes for the Base Year, Tenant's Pro Rata Share of
Expenses and/or Taxes, as the case may be, for that calendar year
shall be $0. Landlord shall provide Tenant with a good faith estimate
of the Expense Excess and of the Tax Excess for each calendar year
during the Term. On or before the first day of each month, Tenant
shall pay to Landlord a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of the Expense Excess
and one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of
the Tax Excess. If Landlord determines that its good faith estimate of
the Expense Excess or of the Tax Excess was incorrect by a material
amount, Landlord may provide Tenant with a revised estimate. After its
receipt of the revised estimate, Tenant's monthly payments shall be
based upon the revised estimate. If Landlord does not provide Tenant
with an estimate of the Expense Excess or of the Tax Excess by January
1 of a calendar year, Tenant shall continue to pay monthly
installments based on the previous year's estimate(s) until Landlord
provides Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which Tenant
paid monthly installments based on the previous year's estimate(s).
Tenant shall pay Landlord the amount of any underpayment within 30
days after receipt of the new estimate. Any overpayment shall be
refunded to Tenant within 30 days or credited against the next due
future installments(s) of Additional Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual Expenses
and Expense Excess and the actual Taxes and Tax Excess for the prior
calendar year. If the estimated Expense Excess and/or estimated Tax
Excess for the prior calendar year is more than the actual Expense
Excess and/or actual Tax Excess, as the case may be, for the prior
calendar year, Landlord shall apply any overpayment by Tenant against
Additional Rent due or next becoming due, provided if the Term expires
before the determination of the overpayment, Landlord shall refund any
overpayment to Tenant after first deducting the amount of Rent due. If
the estimated Expense Excess and/or estimated Tax Excess for the prior
calendar year is less than the actual Expense Excess and/or actual Tax
Excess, as the case may be, for such prior year, Tenant shall pay
Landlord within 30 days after its receipt of the statement of Expenses
and/or Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses incurred in
each calendar year in connection with operating, maintaining,
repairing, and managing the Building and the Property, including, but
not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance, uniforms,
training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed the
cost that would have been incurred had Landlord entered into an
arms-length contract for such services with an unaffiliated
entity of comparable skill and experience.
Page 4
3. The cost of services, including amounts paid to service providers
and the rental and purchase cost of parts, supplies, tools and
equipment.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss, elevator, boiler and
other insurance customarily carried from time to time by owners
of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which Landlord
is reimbursed by tenants. "Electrical Costs" means: (a) charges
paid by Landlord for electricity; (b) costs incurred in
connection with an energy management program for the Property;
and (c) if and to the extent permitted by Law, a fee for the
services provided by Landlord in connection with the selection of
utility companies and the negotiation and administration of
contracts for electricity, provided that such fee shall not
exceed 50% of any savings obtained by Landlord. Electrical Costs
shall be adjusted as follows: (i) amounts received by Landlord as
reimbursement for above standard electrical consumption shall be
deducted from Electrical Costs; (ii) the cost of electricity
incurred to provide overtime HVAC to specific tenants (as
reasonably estimated by Landlord) shall be deducted from
Electrical Costs; and (iii) if Tenant is billed directly for the
cost of building standard electricity to the Premises as a
separate charge in addition to Base Rent, the cost of electricity
to individual tenant spaces in the Building shall be deducted
from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished from
replacement parts or components installed in the ordinary course
of business) made to the Property which are: (a) performed
primarily to reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b) required to
comply with any Laws that are enacted, or first interpreted to
apply to the Property, after the date of this Lease. The cost of
capital improvements shall be amortized by Landlord over the
lesser of the useful life of the capital improvement or 10 years.
The amortized cost of capital improvements may, at Landlord's
option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the cost
of the capital improvement. Notwithstanding the foregoing, the
portion of the annual amortized costs to be included in Expenses
in any calendar year with respect to a capital improvement which
is intended to reduce expenses or improve the operating
efficiency of the Property or Building shall equal the lesser of:
(a) such annual amortized costs; and (b) the projected annual
amortized reduction in expenses for that portion of the
amortization period] of the capital improvement which falls
within the Term (based on the total cost savings for such period,
as reasonably estimated by Landlord).
If Landlord incurs Expenses for the Property together with one or more
other buildings or properties, whether pursuant to a reciprocal
easement agreement with respect to adjacent properties, common area
agreement with respect to adjacent properties or otherwise, the shared
costs and expenses shall be equitably prorated and apportioned between
the Property and the other buildings or properties. Expenses shall not
include: the cost of capital improvements (except as set forth above);
depreciation; interest (except as provided above for the amortization
of capital improvements); principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work to
the extent Landlord is reimbursed by insurance or condemnation
proceeds; costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, including rental
abatements and construction allowances, granted to specific tenants;
costs incurred in connection with the sale, financing or refinancing
of the Building; fines, interest and penalties incurred due to the
late payment of Taxes (defined in Section IV.D) or Expenses;
organizational expenses associated with the creation and operation of
the entity which constitutes Landlord; or any penalties or damages
that Landlord pays to Tenant
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under this Lease or to other tenants in the Building under their
respective leases. If the Building is not at least 95% occupied during
any calendar year or if Landlord is not supplying services to at least
95% of the total Rentable Square Footage of the Building at any time
during a calendar year, Expenses shall, at Landlord's option, be
determined as if the Building had been 95% occupied and Landlord had
been supplying services to 95% of the Rentable Square Footage of the
Building during that calendar year. If Tenant pays for its Pro Rata
Share of Expenses based on increases over a "Base Year" and Expenses
for a calendar year are determined as provided in the prior sentence,
Expenses for the Base Year shall also be determined as if the Building
had been 95% occupied and Landlord had been supplying services to 95%
of the Rentable Square Footage of the Building. The extrapolation of
Expenses under this Section shall be performed by appropriately
adjusting the cost of those components of Expenses that are impacted
by changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and other
assessments on the Building and/or Property, including, but not
limited to, assessments for special improvement districts and building
improvement districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and assessments
and the Property's share of any real estate taxes and assessments
under any reciprocal easement agreement, common area agreement or
similar agreement as to the Property; (2) all personal property taxes
for property that is owned by Landlord and used in connection with the
operation, maintenance and repair of the Property; and (3) all costs
and fees incurred in connection with seeking reductions in any tax
liabilities described in (1) and (2), including, without limitation,
any costs incurred by Landlord for compliance, review and appeal of
tax liabilities. Without limitation, Taxes shall not include any
income, capital levy, franchise, capital stock, gift, estate or
inheritance tax or penalties or fines relating to the late payment or
non-payment of Taxes. If an assessment is payable in installments,
Taxes for the year shall include the amount of the installment and any
interest due and payable during that year. For all other real estate
taxes, Taxes for that year shall, at Landlord's election, include
either the amount accrued, assessed or otherwise imposed for the year
or the amount due and payable for that year, provided that Landlord's
election shall be applied consistently throughout the Term. If a
change in Taxes is obtained for any year of the Term during which
Tenant paid Tenant's Pro Rata Share of any Tax Excess, then Taxes for
that year will be retroactively adjusted and Landlord shall provide
Tenant with a credit, if any, based on the adjustment. Likewise, if a
change is obtained for Taxes for the Base Year, Taxes for the Base
Year shall be restated and the Tax Excess for all subsequent years
shall be recomputed. Tenant shall pay Landlord the amount of Tenant's
Pro Rata Share of any such increase in the Tax Excess within 30 days
after Tenant's receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
statement of Expenses, give Landlord written notice ("Review Notice")
that Tenant intends to review Landlord's records of the Expenses for
that calendar year. Within a reasonable time after receipt of the
Review Notice, Landlord shall make all pertinent records available for
inspection that are reasonably necessary for Tenant to conduct its
review. If any records are maintained at a location other than the
office of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and shipping
the records. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the audit.
Within 60 days after the records are made available to Tenant, Tenant
shall have the right to give Landlord written notice (an "Objection
Notice") stating in reasonable detail any objection to Landlord's
statement of Expenses for that year. If Tenant fails to give Landlord
an Objection Notice within the 60 day period or fails to provide
Landlord with a Review Notice within the 90 day period described
above, Tenant shall be deemed to have approved Landlord's statement of
Expenses and shall be barred from raising any claims regarding the
Expenses for that year. If Tenant provides Landlord with a timely
Objection Notice, Landlord and Tenant shall work together in good
faith to resolve any issues raised in Tenant's Objection Notice. If
Landlord and Tenant determine that Expenses for the calendar year are
less than reported, Landlord
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shall provide Tenant with a credit against the next installment of
Rent in the amount of the overpayment by Tenant. Likewise, if Landlord
and Tenant determine that Expenses for the calendar year are greater
than reported, Tenant shall pay Landlord the amount of any
underpayment within 30 days. However, notwithstanding the foregoing,
if Landlord and Tenant determine that Expenses for the Building for
the year in question were less than stated by more than 5%, Landlord,
within 30 days after its receipt of paid invoices therefor from
Tenant, shall reimburse Tenant for the reasonable amounts paid by
Tenant to third parties in connection with such review by Tenant. The
records obtained by Tenant shall be treated as confidential. In no
event shall Tenant be permitted to examine Landlord's records or to
dispute any statement of Expenses unless Tenant has paid and continues
to pay all Rent when due.
V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other use
whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall
materially comply with all Laws, including the Americans with Disabilities Act,
regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the Premises. Notwithstanding the foregoing,
Landlord, not Tenant, shall be responsible for complying with any law,
ordinance, order, rule or regulation of any governmental agency to the extent
that such requires any structural alterations, unless the need to make a
structural alteration results from Tenant's particular manner of use of the
Premises including, but not limited to, Tenant's use of any part of the Premises
for a use deemed to be a "Public Accommodation" as defined by the ADA. Tenant,
within 10 days after receipt, shall provide Landlord with copies of any notices
it receives regarding a violation or alleged violation of any Laws. Tenant shall
materially comply with the rules and regulations of the Building attached as
Exhibit B and such other reasonable rules and regulations adopted by Landlord
from time to time. Tenant shall also cause its agents, contractors,
subcontractors, employees, customers, and subtenants to comply with all rules
and regulations. Landlord shall not knowingly discriminate against Tenant in
Landlord's enforcement of the rules and regulations.
VI. Security Deposit.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the later to occur of: (1)
the determination of Tenant's Pro Rata Share of any Tax Excess and Expense
Excess for the final year of the Term; (2) the date Tenant surrenders possession
of the Premises to Landlord in accordance with this Lease; or (3) the
Termination Date. If Landlord transfers its interest in the Premises, Landlord
may assign the Security Deposit to the transferee and, following the assignment,
Landlord shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located; (2) Heat and air conditioning in season during
Normal Business Hours, at such temperatures and in such amounts as are
standard for comparable buildings or as required by governmental
authority. Tenant, upon such advance notice as is reasonably required
by Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined by
Landlord from time to time; (3) Maintenance and repair of the Property
as described in Section IX.B.; (4) Janitor service on Business Days.
If Tenant's use, floor covering or other improvements require special
services in excess of the
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standard services for the Building, Tenant shall pay the additional
cost attributable to the special services; (5) Elevator service; (6)
Electricity to the Premises for general office use, in accordance with
and subject to the terms and conditions in Article X; and (7) such
other services as Landlord reasonably determines are necessary or
appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or termination of,
services due to the application of Laws, the failure of any equipment,
the performance of repairs, improvements or alterations, or the
occurrence of any event or cause beyond the reasonable control of
Landlord (a "Service Failure") shall not render Landlord liable to
Tenant, constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to fulfill
any covenant or agreement. However, if the Premises, or a material
portion of the Premises, is made untenantable for a period in excess
of 3 consecutive Business Days as a result of the Service Failure,
then Tenant, as its sole remedy, shall be entitled to receive an
abatement of Rent payable hereunder during the period beginning on the
4th consecutive Business Day of the Service Failure and ending on the
day the service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of abatement
that Tenant is entitled to receive shall be prorated based upon the
percentage of the Premises rendered untenantable and not used by
Tenant. In no event, however, shall Landlord be liable to Tenant for
any loss or damage, including the theft of Tenant's Property (defined
in Article XV), arising out of or in connection with the failure of
any security services, personnel or equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold Improvements")
shall be owned by Landlord and shall remain upon the Premises without
compensation to Tenant. However, Landlord, by written notice to Tenant within 30
days prior to the Termination Date, may require Tenant to remove, at Tenant's
expense: (1) Cable (defined in Section IX.A) installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of the Building;
and (2) any Leasehold Improvements that are performed by or for the benefit of
Tenant and, in Landlord's reasonable judgment, are of a nature that would
require removal and repair costs that are materially in excess of the removal
and repair costs associated with standard office improvements (collectively
referred to as "Required Removables"). Without limitation, it is agreed that
Required Removables include internal stairways, raised floors, personal baths
and showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables. Tenant's possession of the Premises shall be subject to all of the
terms and conditions of this Lease, including the obligation to pay Rent on a
per diem basis at the rate in effect for the last month of the Term. Tenant
shall repair damage caused by the installation or removal of Required
Removables. If Tenant fails to remove any Required Removables or perform related
repairs in a timely manner, Landlord, at Tenant's expense, may remove and
dispose of the Required Removables and perform the required repairs. Tenant,
within 30 days after receipt of an invoice, shall reimburse Landlord for the
reasonable costs incurred by Landlord. Notwithstanding the foregoing, Tenant, at
the time it requests approval for a proposed Alteration (defined in Section
IX.C), may request in writing that Landlord advise Tenant whether the Alteration
or any portion of the Alteration will be designated as a Required Removable.
Within 10 days after receipt of Tenant's request, Landlord shall advise Tenant
in writing as to which portions of the Alteration, if any, will be considered to
be Required Removables.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
expense, promptly perform all maintenance and repairs to the Premises
that are not Landlord's express responsibility under this Lease, and
shall keep the Premises in good condition and repair, reasonable wear
and tear excepted. Tenant's repair obligations include, without
limitation, repairs to: (1) floor covering; (2) interior partitions;
(3) doors; (4) the interior side of demising walls; (5) electronic,
phone and data cabling and related equipment (collectively, "Cable")
that is installed by or for the exclusive benefit of Tenant and
located in the Premises or other
Page 8
portions of the Building; (6) supplemental air conditioning units,
private showers and kitchens, including hot water heaters, plumbing,
and similar facilities serving Tenant exclusively; and (7) Alterations
performed by contractors retained by Tenant, including related HVAC
balancing. All work shall be performed in accordance with the rules
and procedures described in Section IX.C. below. If Tenant fails to
make any repairs to the Premises for more than 15 days after notice
from Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an
amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life safety
systems serving the Building in general; (3) Common Areas; (4) the
roof of the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make repairs
(considering the nature and urgency of the repair) for which Landlord
is responsible.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the Premises or
other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of Landlord
in each instance, which consent shall not be unreasonably withheld or
delayed. However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a "Cosmetic
Alteration"): (1) is of a cosmetic nature such as painting,
wallpapering, hanging pictures and installing carpeting; (2) is not
visible from the exterior of the Premises or Building; (3) will not
affect the systems or structure of the Building; and (4) does not
require work to be performed inside the walls or above the ceiling of
the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all the other
provisions of this Section IX.C. Prior to starting work, Tenant shall
furnish Landlord with plans and specifications reasonably acceptable
to Landlord; names of contractors reasonably acceptable to Landlord
(provided that Landlord may designate specific contractors with
respect to Building systems); copies of contracts; necessary permits
and approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted to Landlord for its
approval. Alterations shall be constructed in a good and workmanlike
manner using materials of a quality that is at least equal to the
quality designated by Landlord as the minimum standard for the
Building. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord within
30 days after receipt of an invoice for sums paid by Landlord for
third party examination of Tenant's plans for non-Cosmetic
Alterations. In addition, within 30 days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any non-Cosmetic Alterations equal to
10% of that part of the cost of the non-Cosmetic Alteration between
$1.00 and $10,000.00, inclusive, and 3% of the cost of that part of
the non-Cosmetic Alterations which is exceeds $10,000.00.
Notwithstanding anything foregoing to the contrary, in lieu of the
fees set forth above, with respect to the first $2,000,000.00 spent by
Tenant for Alterations including, without limitation, the Tenant Work
described in Exhibit D, Tenant shall pay Landlord no fee for
Landlord's oversight and coordination of all Alterations (including
Cosmetic Alterations), but shall pay all direct, reasonable, out of
pocket fees incurred by Landlord in connection with third party
examination of Tenant's plans for non-Cosmetic Alterations and such
oversight and coordination (which sums will be paid within 30 days
after receipt of an invoice for sums paid by Landlord).] Upon
completion, Tenant shall furnish "as-built" plans (except for Cosmetic
Alterations), completion affidavits, full and final waivers of lien
and receipted bills covering all labor and materials. Tenant shall
assure that the Alterations comply with all insurance requirements and
Laws. Landlord's approval of an Alteration shall not
Page 9
be a representation by Landlord that the Alteration complies with
applicable Laws or will be adequate for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall be paid for by Tenant
by a separate charge payable by Tenant to Landlord within 30 days
after billing by Landlord. Electrical service to the Premises may be
furnished by one or more companies providing electrical generation,
transmission and distribution services, and the cost of electricity
may consist of several different components or separate charges for
such services, such as generation, distribution and stranded cost
charges. Landlord shall have the exclusive right to select any company
providing electrical service to the Premises, to aggregate the
electrical service for the Property and Premises with other buildings,
to purchase electricity through a broker and/or buyers group and to
change the providers and manner of purchasing electricity. The charges
to Tenant for electricity shall not exceed the rate that would be
charged Tenant if billed directly by the local utility for the same
services.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or overall
load, 5 xxxxx per square foot of the Premises, which Landlord deems to
be standard for the Building. If Tenant requests permission to consume
excess electrical service, Landlord may refuse to consent or may
condition consent upon conditions that Landlord reasonably elects
(including, without limitation, the installation of utility service
upgrades, meters, submeters, air handlers or cooling units), and the
additional usage (to the extent permitted by Law), installation and
maintenance costs shall be paid by Tenant. Landlord shall have the
right to separately meter electrical usage for the Premises and to
measure electrical usage by survey or other commonly accepted methods.
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally. If reasonably
necessary for the protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of the Premises to
perform repairs, alterations and additions. However, except in emergencies,
Landlord will not close the Premises if the work can reasonably be completed on
weekends and after Normal Business Hours. Entry by Landlord shall not constitute
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
Notwithstanding anything herein to the contrary, except in emergency situations
as determined by Landlord, Landlord shall exercise reasonable efforts to conduct
any entry into the Premises in such a manner as to minimize any disruption to
the operation of Tenant's business.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or encumber
any interest in this Lease or allow any third party to use any portion
of the Premises (collectively or individually, a "Transfer") without
the prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights under Section XII.B below. Without limitation, it
is agreed that Landlord's consent shall not be considered unreasonably
withheld if: (1) the proposed transferee's financial condition does
not meet the criteria Landlord uses to select Building tenants having
similar leasehold obligations; (2) the proposed transferee's business
is not suitable for the Building considering the business of the other
tenants and the Building's prestige, or would result in a violation of
another tenant's rights; (3) the proposed transferee is a governmental
agency or occupant of the Building; (4) Tenant is in default after the
expiration of the notice and cure periods in this Lease; or (5) any
portion of the Building or Premises would likely become subject to
additional or different Laws as a consequence of
Page 10
the proposed Transfer. Notwithstanding the above, Landlord will not
withhold its consent solely because the proposed subtenant or assignee
is an occupant of the Building if Landlord does not have space
available for lease in the Building that is comparable to the space
Tenant desires to sublet or assign. Landlord shall be deemed to have
comparable space if it has, or will have, space available on any floor
of the Building that is approximately the same size as the space
Tenant desires to sublet or assign within 6 months of the proposed
commencement of the proposed sublease or assignment. Any attempted
Transfer in violation of this Article shall, at Landlord's option, be
void. Consent by Landlord to one or more Transfer(s) shall not operate
as a waiver of Landlord's rights to approve any subsequent Transfers.
In no event shall any Transfer or Permitted Transfer release or
relieve Tenant from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease and
other contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within
30 days of its receipt of the required information and documentation,
either: (1) consent to the Transfer by the execution of a consent
agreement in a form reasonably designated by Landlord or reasonably
refuse to consent to the Transfer in writing; or (2) exercise its
right to terminate this Lease with respect to the portion of the
Premises that Tenant is proposing to assign or sublet. Any such
termination shall be effective on the proposed effective date of the
Transfer for which Tenant requested consent. Tenant shall pay Landlord
a review fee of $750.00 for Landlord's review of any Permitted
Transfer or requested Transfer, provided if Landlord's actual
reasonable costs and expenses (including reasonable attorney's fees)
exceed $750.00, Tenant shall reimburse Landlord for its actual
reasonable costs and expenses in lieu of a fixed review fee.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess of
the Rent payable to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for Landlord's
share of any excess within 30 days after Tenant's receipt of such
excess consideration. Tenant may deduct from the excess all reasonable
and customary expenses directly incurred by Tenant attributable to the
Transfer, including brokerage fees, legal fees and construction costs.
If Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against Rent in
the amount of any payments received (less Landlord's share of any
excess).
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority of
the voting shares/rights at any time changes for any reason (including
but not limited to a merger, consolidation or reorganization), such
change of ownership or control shall constitute a Transfer. The
foregoing shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange, or if
at least 80% of its voting stock is owned by another entity, the
voting stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a successor
to Tenant by purchase, merger, consolidation or reorganization without
the consent of Landlord, provided that all of the following conditions
are satisfied (a "Permitted Transfer"): (1) Tenant is not in default
under this Lease; (2) Tenant's successor shall own all or
substantially all of the assets of Tenant; (3) Tenant's successor
shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth as
of the day prior to the proposed purchase, merger, consolidation or
reorganization; (4) the Permitted Use does not allow the Premises to
be used for retail purposes; and (5) Tenant shall give Landlord
written notice at least 30 days prior to the effective date of the
proposed purchase, merger, consolidation or reorganization. Tenant's
notice to Landlord shall include information and documentation showing
that each of the above
Page 11
conditions has been satisfied. If requested by Landlord, Tenant's
successor shall sign a commercially reasonable form of assumption
agreement.
XIII. Liens.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant. If a lien is so
placed, Tenant shall, within 30 days of notice from Landlord of the filing of
the lien, fully discharge the lien by settling the claim which resulted in the
lien or by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in addition to
any other right or remedy of Landlord, Landlord may bond or insure over the lien
or otherwise discharge the lien. Tenant shall reimburse Landlord for any amount
paid by Landlord to bond or insure over the lien or discharge the lien,
including, without limitation, reasonable attorneys' fees (if and to the extent
permitted by Law) within 30 days after receipt of an invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful misconduct of
Landlord or any Landlord Related Parties (defined below), Tenant shall
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
Mortgagee(s) (defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by Law), which may
be imposed upon, incurred by or asserted against Landlord or any of
the Landlord Related Parties and arising out of or in connection with
any damage or injury occurring in the Premises or any acts or
omissions (including violations of Law) of Tenant, the Tenant Related
Parties (defined below) or any of Tenant's transferees, contractors or
licensees.
B. Except to the extent caused by the negligence or willful misconduct of
Tenant or any Tenant Related Parties (defined below), Landlord shall
indemnify, defend and hold Tenant, its trustees, members, principals,
beneficiaries, partners, officers, directors, employees and agents
("Tenant Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees (if and to the extent permitted by Law),
which may be imposed upon, incurred by or asserted against Tenant or
any of the Tenant Related Parties and arising out of or in connection
with the acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for, and
Tenant waives, all claims for loss or damage to Tenant's business or
loss, theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from: (1) wind
or weather; (2) the failure of any sprinkler, heating or
air-conditioning equipment, any electric wiring or any gas, water or
steam pipes; (3) the backing up of any sewer pipe or downspout; (4)
the bursting, leaking or running of any tank, water closet, drain or
other pipe; (5) water, snow or ice upon or coming through the roof,
skylight, stairs, doorways, windows, walks or any other place upon or
near the Building; (6) any act or omission of any party other than
Landlord or Landlord Related Parties; and (7) any causes not
reasonably within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below. Notwithstanding the
foregoing, except as provided in Article XVI to the contrary, Tenant
shall not be required to waive any claims against Landlord (other than
for loss or damage to Tenant's business) where such loss or damage is
due to the negligence or willful misconduct of Landlord or any
Landlord Related Parties. Nothing herein shall be construed as to
diminish the repair and maintenance obligations of Landlord contained
elsewhere in this Lease.
XV. Insurance.
Page 12
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII
(unless otherwise approved by Landlord, which approval shall not be unreasonably
withheld). All Commercial General Liability Insurance policies shall name Tenant
as a named insured and Landlord (or any successor), Equity Office Properties
Trust, a Maryland real estate investment trust, EOP Operating Limited
Partnership, a Delaware limited partnership, and their respective members,
principals, beneficiaries, partners, officers, directors, employees, and agents,
and other designees of Landlord as the interest of such designees shall appear,
as additional insureds. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the Premises
for any reason, and upon renewals at least 15 days prior to the expiration of
the insurance coverage. Landlord shall maintain so called All Risk property
insurance on the Building at replacement cost value, as reasonably estimated by
Landlord. Except as specifically provided to the contrary, the limits of either
party's' insurance shall not limit such party's liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
hereby waive and shall cause their respective insurance carriers to waive any
and all rights of recovery, claim, action or causes of action against the other
and their respective trustees, principals, beneficiaries, partners, officers,
directors, agents, and employees, for any loss or damage that may occur to
Landlord or Tenant or any party claiming by, through or under Landlord or
Tenant, as the case may be, with respect to Tenant's Property, the Building, the
Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing. During
any period of time that all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty, the
Rent shall xxxxx for the portion of the Premises that is untenantable
and not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially damaged
and there is less than 1 year of the Term remaining on the date of the
casualty; or (4) a material uninsured loss to the Building occurs.
Landlord may exercise its right to terminate this Lease by notifying
Tenant in writing within 90 days after the date of the casualty. In
addition to Landlord's right to terminate as provided herein, Tenant
shall have the right to terminate this Lease if: (a) a substantial
portion of the Premises has been damaged by fire or other casualty and
such damage cannot reasonably be repaired within 60 days after receipt
of the Completion Estimate (defined in XVII.B. below); (b) there is
less than 1 year of the Term remaining on the date of such casualty;
(c) the casualty was not caused by the negligence or willful
misconduct of Tenant or its agents, employees or contractors; and (d)
Tenant provides Landlord with written notice of its intent to
terminate within 30 days after the date of the fire or other casualty.
If neither Landlord nor Tenant elect to terminate this Lease, Landlord
shall commence and
Page 13
proceed with reasonable diligence to repair and restore the Building
and the Leasehold Improvements (excluding any Alterations that were
performed by Tenant in violation of this Lease). However, in no event
shall Landlord be required to spend more than the insurance proceeds
received by Landlord available for restoration. Landlord shall not be
liable for any loss or damage to Tenant's Property or to the business
of Tenant resulting in any way from the fire or other casualty or from
the repair and restoration of the damage. Landlord and Tenant hereby
waive the provisions of any Law relating to the matters addressed in
this Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in
this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount of
time required to substantially complete the repair and restoration of
the Premises and make the Premises tenantable again, using standard
working methods ("Completion Estimate"). If the Completion Estimate
indicates that the Premises cannot be made tenantable within 270 days
from the date the repair and restoration is started, then regardless
of anything in Section XVII.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice
to the other of such election within 30 days after receipt of the
Completion Estimate. Notwithstanding the foregoing, if Landlord does
not substantially complete the repair and restoration of the Premises
within 2 months after the expiration of the estimated period of time
set forth in the Completion Estimate, which period shall be extended
to the extent of any Reconstruction Delays, then Tenant may terminate
this Lease by written notice to Landlord within 15 days after the
expiration of such period, as the same may be extended. 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 of Force
Majeure.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part of
the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not cured
within 30 days after written notice to Tenant. However, if Tenant's
failure to comply cannot reasonably be cured within 30 days, Tenant
shall be allowed additional time (not
Page 14
to exceed 60 days) as is reasonably necessary to cure the failure so
long as: (1) Tenant commences to cure the failure within 30 days, and
(2) Tenant diligently pursues a course of action that will cure the
failure and bring Tenant back into compliance with the Lease. However,
if Tenant's failure to comply creates a hazardous condition, the
failure must be cured immediately upon notice to Tenant. In addition,
if Landlord provides Tenant with notice of Tenant's failure to comply
with any particular material term, provision or covenant of the Lease
on 3 occasions during any 12 month period, Tenant's subsequent
violation of such material term, provision or covenant shall, at
Landlord's option, be an incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in fraud
of creditors or makes an assignment for the benefit of creditors, or
admits in writing its inability to pay its debts when due.
D. The leasehold estate is taken by process or operation of Law.
E. Intentionally Omitted.
F. Intentionally Omitted.
XX. Remedies.
A. Upon any default, Landlord shall have the right without notice or
demand (except as provided in Article XIX) to pursue any of its rights
and remedies at Law or in equity, including any one or more of the
following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law and
without prejudice to any other right or remedy, enter upon and
take possession of the Premises and expel and remove Tenant,
Tenant's Property and any party occupying all or any part of the
Premises. Tenant shall pay Landlord on demand the amount of all
past due Rent and other losses and damages which Landlord may
suffer as a result of Tenant's default, whether by Landlord's
inability to relet the Premises on satisfactory terms or
otherwise, including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting
or the failure to relet the Premises. "Costs of Reletting" shall
include all costs and expenses incurred by Landlord in reletting
or attempting to relet the Premises, including, without
limitation, reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other concessions or
allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant, Tenant's
Property and any parties occupying all or any part of the
Premises. Landlord may (but shall not be obligated to) relet all
or any part of the Premises, without notice to Tenant, for a term
that may be greater or less than the balance of the Term and on
such conditions (which may include concessions, free rent and
alterations of the Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and
receive all rents and other income from the reletting. Tenant
shall pay Landlord on demand all past due Rent, all Costs of
Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the
Premises or for the failure to collect any Rent. The re-entry or
taking of possession of the Premises shall not be construed as an
election by Landlord to terminate this Lease unless a written
notice of termination is given to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a)
all Rent accrued through the date of termination of this Lease or
Tenant's right to possession, and (b) an amount equal to the
total Rent that Tenant would
Page 15
have been required to pay for the remainder of the Term
discounted to present value at the Prime Rate (defined in Section
XX.B. below) then in effect, minus the greater of then present
fair rental value of the Premises for the remainder of the Term,
similarly discounted, after deducting all anticipated Costs of
Reletting, or the actual Rent paid by a successor tenant after
deducting the Costs of Reletting, similarly discounted.
B. Unless expressly provided in this Lease, the repossession or
re-entering of all or any part of the Premises shall not relieve
Tenant of its liabilities and obligations under the Lease. No right or
remedy of Landlord shall be exclusive of any other right or remedy.
Each right and remedy shall be cumulative and in addition to any other
right and remedy now or subsequently available to Landlord at Law or
in equity. If Landlord declares Tenant to be in default, Landlord
shall be entitled to receive interest on any unpaid item of Rent at a
rate equal to the Prime Rate plus 4%. For purposes hereof, the "Prime
Rate" shall be the per annum interest rate publicly announced as its
prime or base rate by a federally insured bank selected by Landlord in
the state in which the Building is located. Forbearance by Landlord to
enforce one or more remedies shall not constitute a waiver of any
default.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises, subject
to the terms of this Lease, provided Tenant pays the Rent and fully performs all
of its covenants and agreements. This covenant and all other covenants of
Landlord shall be binding upon Landlord and its successors only during its or
their respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.
XXIV. Relocation. Intentionally Omitted.
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if Tenant
fails to surrender the Premises at the expiration or earlier termination of this
Lease, occupancy of the Premises after the termination or expiration shall be
that of a tenancy at sufferance. Tenant's occupancy of the Premises during the
holdover shall be subject to all the terms and provisions of this Lease and
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the greater of: (1) the sum of the
Base Rent and Additional Rent due for the period immediately preceding the
holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the Premises
by summary proceedings or otherwise. In addition to the payment of the amounts
provided above,
Page 16
if Landlord is unable to deliver possession of the Premises to a new tenant, or
to perform improvements for a new tenant, as a result of Tenant's holdover and
Tenant fails to vacate the Premises within 15 days after Landlord notifies
Tenant of Landlord's inability to deliver possession, or perform improvements,
Tenant shall be liable to Landlord for all damages, including, without
limitation, consequential damages, that Landlord suffers from the holdover.
XXVI. Subordination to Mortgages; Estoppel Certificate.
Subject to the terms hereof, Tenant accepts this Lease subject and
subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or other
lien(s) now or subsequently arising upon the Premises, the Building or the
Property, and to renewals, modifications, refinancings and extensions thereof
(collectively referred to as a "Mortgage"). The party having the benefit of a
Mortgage shall be referred to as a "Mortgagee". This clause shall be
self-operative only with respect to the existing Mortgagee. In lieu of having
the Mortgage be superior to this Lease, a Mortgagee shall have the right at any
time to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest in the Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Landlord and
Tenant shall each, within 10 Business Days after receipt of a written request
from the other, execute and deliver an estoppel certificate to those parties as
are reasonably requested by the other (including a Mortgagee or prospective
purchaser). The estoppel certificate shall include a statement certifying that
this Lease is unmodified (except as identified in the estoppel certificate) and
in full force and effect, describing the dates to which Rent and other charges
have been paid, representing that, to such party's actual knowledge, there is no
default (or stating the nature of the alleged default) and indicating other
matters with respect to the Lease that may reasonably be requested.
Notwithstanding anything foregoing to the contrary, as a condition precedent to
the future subordination of this Lease, Landlord will be required to obtain a
non-disturbance, subordination and attornment agreement in favor of Tenant from
any future Mortgagee on such Mortgagee's then current standard form of
agreement, provided such form contains substantially similar provisions as those
set forth in Exhibit F or such other commercially reasonable changes to such
future Mortgagee's form of non-disturbance, subordination and attornment
agreement provided that Tenant's rights and obligations under such form are not
materially different from those set forth in Exhibit F. Upon agreement between
Tenant and such future Mortgagee, Tenant will execute such non-disturbance,
subordination and attornment agreement and return the same to the future
Mortgagee for execution. If Tenant and any future Mortgagee are unable to agree
upon the terms and conditions of the non-disturbance, subordination and
attornment agreement, Tenant, upon request of such future Mortgagee, agrees to
enter into a non-disturbance, subordination and attornment agreement on the form
attached hereto as Exhibit F. Landlord's failure to obtain a non-disturbance,
subordination and attornment agreement for Tenant from any future Mortgagee
shall have no effect on the rights, obligations and liabilities of Landlord and
Tenant or be considered to be a default by Landlord hereunder, provided that if
such future Mortgagee is unwilling to enter into a non-disturbance,
subordination and attornment agreement with Tenant (either on a negotiated form
or the form attached hereto as Exhibit F), this Lease shall not be subordinated
to the Mortgage held by the future Mortgagee and the lien of such Mortgagee's
Mortgage shall be subject to this Lease. If, however, Tenant is unwilling to
enter into such non-disturbance, subordination and attornment agreement on the
form attached hereto as Exhibit F, such refusal shall be considered to be a
default hereunder by Tenant, subject to the notice and cure provisions of
Section XIX hereof, and Landlord shall have no further obligation to attempt to
obtain a non-disturbance, subordination and attornment from such future
Mortgagee.
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or to
enforce any covenant or condition of this Lease, or if either party intervenes
in any suit in which the other is a party to enforce or protect its interest or
rights, the prevailing party shall be entitled to all of its costs and expenses,
including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively referred to
as a "notice") shall or may be given to either party by the other, the notice
shall be in writing and delivered by hand or sent by registered or certified
mail with return receipt requested, or sent by overnight or same day courier
service at the party's respective Notice Address(es) set forth in Article I,
except that if Tenant has vacated the Premises (or if the Notice Address for
Tenant is other than the Premises, and Tenant has vacated such address) without
providing Landlord a new Notice
Page 17
Address, Landlord may serve notice in any manner described in this Article or in
any other manner permitted by Law. Each notice shall be deemed to have been
received or given on the earlier to occur of actual delivery or the date on
which delivery is refused, or, if Tenant has vacated the Premises or the other
Notice Address of Tenant without providing a new Notice Address, three (3) days
after notice is deposited in the U.S. mail or with a courier service in the
manner described above. Either party may, at any time, change its Notice Address
by giving the other party written notice of the new address in the manner
described in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent, provided, however, Tenant shall be entitled to an abatement
of Rent in accordance with Section VII.B. if the Building is closed and Tenant
is unable to use the Premises as a result of such closure, for a period of at
least 3 consecutive Business Days.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's right of
possession, Tenant shall remove Tenant's Property (defined in Article XV) from
the Premises, and quit and surrender the Premises to Landlord, broom clean, and
in good order, condition and repair, ordinary wear and tear excepted. Tenant
shall also be required to remove the Required Removables in accordance with
Article VIII. If Tenant fails to remove any of Tenant's Property within 2 days
after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's Property.
Tenant shall pay Landlord, upon demand, the expenses and storage charges
incurred for Tenant's Property. In addition, if Tenant fails to remove Tenant's
Property from the Premises or storage, as the case may be, within 30 days after
written notice, Landlord may deem all or any part of Tenant's Property to be
abandoned, and title to Tenant's Property shall be deemed to be immediately
vested in Landlord.
XXXI. Demolition.
Landlord shall have the right to terminate this Lease if Landlord proposes
or is required, for any reason, to remodel, remove, or demolish the Building or
any substantial portion thereof. Such cancellation shall be exercised by
Landlord by the service of not less than ninety (90) days' written notice of
such termination. Such notice shall set forth the date upon which the
termination will be effective. No money or other consideration shall be payable
by Landlord to Tenant for Landlord's exercise of this right, and the right is
hereby reserved to Landlord and all purchasers, successors, assigns,
transferees, and ground tenants of Landlord, as the case may be, and is in
addition to all other rights of Landlord. Tenant has read the foregoing and
understands that Landlord has a right to terminate this Lease as provided above.
XXXII. Miscellaneous.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the
state in which the Building is located and Landlord and Tenant hereby
irrevocably consent to the jurisdiction and proper venue of such
state. If any term or provision of this Lease shall to any extent be
invalid or unenforceable, the remainder of this Lease shall
Page 18
not be affected, and each provision of this Lease shall be valid and
enforced to the fullest extent permitted by Law. The headings and
titles to the Articles and Sections of this Lease are for convenience
only and shall have no effect on the interpretation of any part of the
Lease.
B. Tenant shall not record this Lease without Landlord's prior written
consent, however, upon Tenant's written request, Landlord will execute
a memorandum of Lease in form reasonably acceptable to Landlord and
substantially in the form attached hereto as Exhibit G.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action by
Landlord or Tenant, the period of time for the performance of such
action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or
materials, war, civil disturbances and other causes beyond the
reasonable control of the performing party ("Force Majeure"). However,
events of Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any period of
time for the written exercise of an option or right by either party.
E. Landlord shall have the right to transfer and assign, in whole or in
part, all of its rights and obligations under this Lease and in the
Building and/or Property referred to herein, and upon such transfer
Landlord shall be released from any further obligations hereunder
provided that, any successor pursuant to a voluntary, third-party
transfer (but not as part of an involuntary transfer resulting from a
foreclosure or deed in lieu thereof) shall have assumed Landlord's
obligations under this Lease either by contractual obligation,
assumption agreement or by operation of law, and Tenant agrees to look
solely to the successor in interest of Landlord for the performance of
such obligations. and further provided that Landlord and its
successors, as the case may be, shall remain liable after their
respective periods of ownership with respect to any sums due that
arose during such period of ownership.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties harmless
from all claims of any brokers, including Broker, claiming claiming to
have represented Tenant in connection with this Lease. Landlord agrees
to indemnify and hold Tenant and the Tenant Related Parties harmless
from all claims of any brokers claiming to have represented Landlord
in connection with this Lease.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of Tenant
is authorized to do so on behalf of Tenant; (2) this Lease is binding
upon Tenant; and (3) Tenant is duly organized and legally existing in
the state of its organization and is qualified to do business in the
state in which the Premises are located. If there is more than one
Tenant, or if Tenant is comprised of more than one party or entity,
the obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities. Notices, payments and
agreements given or made by, with or to any one person or entity shall
be deemed to have been given or made by, with and to all of them.
Landlord covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of
Landlord is authorized to do so on behalf of Landlord; (2) this Lease
is binding upon Landlord; and (3) Landlord is duly organized and
legally existing in the state of its organization and is qualified to
do business in the state in which the Premises are located.
H. Time is of the essence with respect to Tenant's exercise of any
expansion, renewal or extension rights granted to Tenant. This Lease
shall create only the relationship of landlord and tenant between the
parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this
Lease shall inure only to the benefit of and be binding only upon
Landlord and Tenant and their permitted successors and assigns.
Page 19
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued prior
to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior
sentence, it is agreed that Tenant's obligations under Sections IV.A,
IV.B., VIII, XIV, XX, XXV and XXX shall survive the expiration or
early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed by
such party.
K. All understandings and agreements previously made between the parties
are superseded by this Lease, and neither party is relying upon any
warranty, statement or representation not contained in this Lease.
This Lease may be modified only by a written agreement signed by
Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of Tenant
and determine Tenant's ability to fulfill its obligations under this
Lease. Landlord, however, shall not require Tenant to provide such
information unless Landlord is requested to produce the information in
connection with a proposed financing or sale of the Building. Upon
written request by Tenant, Landlord shall enter into a commercially
reasonable confidentiality agreement covering any confidential
information that is disclosed by Tenant.
Page 20
XXXIII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A (Outline and Location of Premises),
Exhibit B (Rules and Regulations), Exhibit C (Intentionally Omitted), Exhibit D
(Work Letter Agreement, if required), Exhibit E (Additional Provisions), Exhibit
F (Subordination Agreement; Acknowledgment Of Lease Assignment, Estoppel,
Attornment And Non-Disturbance Agreement), and Exhibit G (Memorandum of Lease).
Landlord and Tenant have executed this Lease as of the day and year first
above written.
WITNESS/ATTEST: LANDLORD: TWO NORTH RIVERSIDE PLAZA
JOINT VENTURE LIMITED
PARTNERSHIP, an Illinois
Illegible limited partnership, sole
------------------------------------- beneficiary of LaSalle
National Trust, N.A.,
Name (print): Illegible successor trustee under Trust
Name (print): Agreement dated June 26, 1969
----------------------- and known as Trust No. 39712
By: Equity Office Properties
Management Corp., a Delaware
corporation, as agent
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Assistant Vice President
WITNESS/ATTEST: TENANT: iDINE REWARDS NETWORK INC.,
a Delaware corporation
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx
Name (print): Xxxxx Xxxxxxxxx Title: COO & CFO
Name (print):
-----------------------
Page 21
EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease by and between TWO
NORTH RIVERSIDE PLAZA JOINT VENTURE LIMITED PARTNERSHIP, an Illinois limited
partnership, sole beneficiary of LaSalle National Trust, N.A., successor trustee
under Trust Agreement dated June 26, 1969 and known as Trust No. 39712
("Landlord") by its agent, EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a Delaware
corporation, and iDINE REWARDS NETWORK INC., a Delaware corporation ("Tenant")
for space in the Building located at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx.
[DRAWING OF PREMISES]
Page 22
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord. All
tenant identification and suite numbers at the entrance to the Premises
shall be installed by Landlord, at Tenant's cost and expense, using the
standard graphics for the Building. Except in connection with the hanging
of lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by the
Building maintenance personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of the
Building an alphabetical directory board or other directory device listing
tenants, and no other directory shall be permitted unless previously
consented to by Landlord in writing.
5. Tenant shall not place any lock(s) on any door in the Premises or Building
without Landlord's prior written consent and Landlord shall have the right
to retain at all times and to use keys to all locks within and into the
Premises. A reasonable number of keys to the locks on the entry doors in
the Premises shall be furnished by Landlord to Tenant at Tenant's cost, and
Tenant shall not make any duplicate keys. All keys shall be returned to
Landlord at the expiration or early termination of this Lease.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the use
of elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours designated by Landlord. Tenant shall obtain Landlord's
prior approval by providing a detailed listing of the activity. If approved
by Landlord, the activity shall be under the supervision of Landlord and
performed in the manner required by Landlord. Tenant shall assume all risk
for damage to articles moved and injury to any persons resulting from the
activity. If equipment, property, or personnel of Landlord or of any other
party is damaged or injured as a result of or in connection with the
activity, Tenant shall be solely liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location of
heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or removal
of property of Tenant shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
Page 23
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be used
or kept by Tenant in the Premises, Building or about the Property. Tenant
shall not, without Landlord's prior written consent, use, store, install,
spill, remove, release or dispose of, within or about the Premises or any
other portion of the Property, any asbestos-containing materials or any
solid, liquid or gaseous material now or subsequently considered toxic or
hazardous under the provisions of 42 U.S.C. Section 9601 et seq. or any
other applicable environmental Law which may now or later be in effect.
Tenant shall comply with all Laws pertaining to and governing the use of
these materials by Tenant, and shall remain solely liable for the costs of
abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor disruption
or dispute, or interfere with Landlord's or any other tenant's or
occupant's business or with the rights and privileges of any person
lawfully in the Building ("Labor Disruption"). Tenant shall take the
actions necessary to resolve the Labor Disruption, and shall have pickets
removed and, at the request of Landlord, immediately terminate any work in
the Premises that gave rise to the Labor Disruption, until Landlord gives
its written consent for the work to resume. Tenant shall have no claim for
damages against Landlord or any of the Landlord Related Parties, nor shall
the date of the commencement of the Term be extended as a result of the
above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord. Tenant shall not furnish
cooling or heating to the Premises, including, without limitation, the use
of electronic or gas heating devices, without Landlord's prior written
consent. Tenant shall not use more than its proportionate share of
telephone lines and other telecommunication facilities available to service
the Building.
16. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees.
17. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon written
notice from Landlord, Tenant shall refrain from and discontinue such
publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
Page 24
21. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking in the Common Areas, unless the Common Areas
have been declared a designated smoking area by Landlord, nor shall the
above parties allow smoke from the Premises to emanate into the Common
Areas or any other part of the Building. Landlord shall have the right to
designate the Building (including the Premises) as a non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure, to
the extent reasonably practicable, that window coverings are closed on
windows in the Premises while they are exposed to the direct rays of the
sun.
23. Deliveries to and from the Premises shall be made only at the times, in the
areas and through the entrances and exits designated by Landlord. Tenant
shall not make deliveries to or from the Premises in a manner that might
interfere with the use by any other tenant of its premises or of the Common
Areas, any pedestrian use, or any use which is inconsistent with good
business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after 5:30
P.M., and cleaning work may be done at any time when the offices are
vacant. Windows, doors and fixtures may be cleaned at any time. Tenant
shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
Page 25
EXHIBIT C
COMMENCEMENT LETTER
Intentionally Omitted.
Page 26
EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and between TWO
NORTH RIVERSIDE PLAZA JOINT VENTURE LIMITED PARTNERSHIP, an Illinois limited
partnership, sole beneficiary of LaSalle National Trust, N.A., successor trustee
under Trust Agreement dated June 26, 1969 and known as Trust No. 39712
("Landlord") by its agent, EQUITY OFFICE PROPERTIES MANAGEMENT CORP., a Delaware
corporation, and iDINE REWARDS NETWORK INC., a Delaware corporation ("Tenant")
for space in the Building located at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx.
As used in this Workletter, the "Premises" shall be deemed to mean the Premises,
as initially defined in the attached Lease.
1. Landlord, at its sole cost and expense (subject to the terms and provisions
of Section 2 below) shall paint and carpet the corridor to the Premises
using Building standard methods, materials and finishes. The improvements
to be performed are hereinafter referred to as the "Landlord Work".
Landlord shall enter into a direct contract for the Landlord Work with a
general contractor selected by Landlord. In addition, Landlord shall have
the right to select and/or approve of any subcontractors used in connection
with the Landlord Work.
2. All other work and upgrades, subject to Landlord's approval, shall be at
Tenant's sole cost and expense, plus any applicable state sales or use tax
thereon, payable upon demand as Additional Rent. Tenant shall be
responsible for any Tenant Delay in completion of the Premises resulting
from any such other work and upgrades requested or performed by Tenant.
3. Landlord's supervision or performance of any work for or on behalf of
Tenant shall not be deemed to be a representation by Landlord that such
work complies with applicable insurance requirements, building codes,
ordinances, laws or regulations or that the improvements constructed will
be adequate for Tenant's use.
4. Tenant acknowledges that the Landlord Work may be performed by Landlord in
the Premises during Normal Business Hours subsequent to the Commencement
Date. Landlord and Tenant agree to cooperate with each other in order to
enable the Landlord Work to be performed in a timely manner and with as
little inconvenience to the operation of Tenant's business as is reasonably
possible. Notwithstanding anything herein to the contrary, any delay in the
completion of the Landlord Work or inconvenience suffered by Tenant during
the performance of the Landlord Work shall not delay the Commencement Date
nor shall it subject Landlord to any liability for any loss or damage
resulting therefrom or entitle Tenant to any credit, abatement or
adjustment of Rent or other sums payable under the Lease.
5. This Exhibit shall not be deemed applicable to any additional space added
to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises or
any additions to the Premises in the event of a renewal or extension of the
original Term of the Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
Page 27
Exhibit F
SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT,
ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
RECORDING REQUESTED BY LASALLE NATIONAL TRUST, N.A.
AND WHEN RECORDED MAIL TO:
XXXXX FARGO BANK, NATIONAL ASSOCIATION
Attention: Xxxx Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
================================================================================
SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT,
ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT
(Lease To Mortgage)
THIS SUBORDINATION AGREEMENT; ACKNOWLEDGMENT OF LEASE ASSIGNMENT, ESTOPPEL,
ATTORNMENT AND NON-DISTURBANCE AGREEMENT ("Agreement") is made August , 2001
----
by and between TWO NORTH RIVERSIDE PLAZA JOINT VENTURE LIMITED PARTNERSHIP, an
Illinois limited partnership ("Owner"),
----------------------------------------
("Lessee"), and XXXXX FARGO BANK, NATIONAL
----------------------------
ASSOCIATION ("Lender").
RECITALS
A. Pursuant to the terms and provisions of a lease dated ,
--------------------
2003 ("Lease"), Owner, as "Lessor", granted to Lessee a leasehold estate in
and to a portion of the property described on Exhibit A attached hereto and
incorporated herein by this reference (which property, together with all
improvements now or hereafter located on the property, is defined as the
"Property").
B. Owner has executed a Mortgage, Security Agreement and Assignment of Rents
(as amended, "Mortgage"), securing, among other things, a Promissory Note
Secured by Mortgage (as amended, the "Note") in the principal sum of
), dated ,
------------------------------------------------ -----------------
in favor of Lender, which Note is payable with interest and upon the terms
and conditions described therein ("Loan").
C. Lender requires that the Mortgage be unconditionally and at all times
remain a lien on the Property, prior and superior to all the rights of
Lessee under the Lease and that the Lessee specifically and unconditionally
subordinate the Lease to the lien of the Mortgage.
D. Owner and Lessee have agreed to the subordination, attornment and other
agreements herein in favor of Lender.
NOW THEREFORE, for valuable consideration and to induce Lender to make the Loan,
Owner and Lessee hereby agree for the benefit of Lender as follows:
SUBORDINATION. Owner and Lessee hereby agree that:
Prior Lien. The Mortgage securing the Note in favor of Lender, and any
modifications, renewals or extensions thereof, shall unconditionally be and at
all times remain a lien on the Property prior and superior to the Lease; and
Page 28
Whole Agreement. This Agreement shall be the whole agreement and only agreement
with regard to the subordination of the Lease to the lien of the Mortgage and
shall supersede and cancel, but only insofar as would affect the priority
between the Mortgage and the Lease, any prior agreements as to such
subordination, including, without limitation, those provisions, if any,
contained in the Lease which provide for the subordination of the Lease to a
deed or deeds of trust or to a mortgage or mortgages.
AND FURTHER, Lessee individually declares, agrees and acknowledges for the
benefit of Lender, that:
Use of Proceeds. Lender, in making disbursements pursuant to the Note, the
Mortgage or any loan agreements with respect to the Property, is under no
obligation or duty to, nor has Lender represented that it will, see to the
application of such proceeds by the person or persons to whom Lender disburses
such proceeds, and any application or use of such proceeds for purposes other
than those provided for in such agreement or agreements shall not defeat this
agreement to subordinate in whole or in part;
Waiver, Relinquishment and Subordination. Lessee intentionally and
unconditionally waives, relinquishes and subordinates all of Lessee's right,
title and interest in and to the Property to the lien of the Mortgage and
understands that in reliance upon, and in consideration of, this waiver,
relinquishment and subordination, specific loans and advances are being and will
be made by Lender and, as part and parcel thereof, specific monetary and other
obligations are being and will be entered into which would not be made or
entered into but for said reliance upon this waiver, relinquishment and
subordination.
ASSIGNMENT. Lessee acknowledges and consents to the assignment of the Lease by
Lessor in favor of Lender.
ESTOPPEL. Lessee acknowledges and represents that:
Lease Effective. The Lease has been duly executed and delivered by Lessee and,
subject to the terms and conditions thereof, the Lease is in full force and
effect, the obligations of Lessee thereunder are valid and binding and there
have been no modifications or additions to the Lease, written or oral;
No Default. To the best of Lessee's knowledge, as of the date hereof: (i) there
exists no breach, default, or event or condition which, with the giving of
notice or the passage of time or both, would constitute a breach or default
under the Lease; and (ii) there are no existing claims, defenses or offsets
against rental due or to become due under the Lease;
Entire Agreement. The Lease constitutes the entire agreement between Lessor and
Lessee with respect to the Property and Lessee claims no rights with respect to
the Property other than as set forth in the Lease; and
No Prepaid Rent. No deposits or prepayments of rent have been made in connection
with the Lease, except as follows: (if none, state "None") None
ADDITIONAL AGREEMENTS. Lessee covenants and agrees that, during all such times
as Lender is the Beneficiary under the Mortgage:
Modification, Termination and Cancellation. Lessee will not consent to any
modification, termination or cancellation of the Lease (in whole or in part) or
material amendment to the Lease, without Lender's prior written consent and will
not make any payment to Lessor in consideration of any modification, termination
or cancellation of the Lease (in whole or in part) without Lender's prior
written consent;
Page 29
Notice of Default. Lessee will notify Lender in writing concurrently with any
notice given to Lessor of any default by Lessor under the Lease, and Lessee
agrees that Lender has the right (but not the obligation) to cure any breach or
default specified in such notice within the time periods set forth below and
Lessee will not declare a default of the Lease, as to Lender, if Lender cures
such default within fifteen (15) days from and after the expiration of the time
period provided in the Lease for the cure thereof by Lessor; provided, however,
that if such default cannot with diligence be cured by Lender within such
fifteen (15) day period, the commencement of action by Lender within such
fifteen (15) day period to remedy the same shall be deemed sufficient so long as
Lender pursues such cure with diligence;
No Advance Rents. Lessee will make no payments or prepayments of rent more than
one (1) month in advance of the time when the same become due under the Lease;
and
Assignment of Rents. Upon receipt by Lessee of written notice from Lender that
Lender has elected to terminate the license granted to Lessor to collect rents,
as provided in the Mortgage, and directing the payment of rents by Lessee to
Lender, Lessee shall comply with such direction to pay and shall not be required
to determine whether Lessor is in default under the Loan and/or the Mortgage.
ATTORNMENT. Lessee agrees for the benefit of Lender (including for this purpose
any transferee of Lender or any transferee of Lessor's title in and to the
Property by Lender's exercise of the remedy of sale by foreclosure under the
Mortgage) as follows:
Payment of Rent. Lessee shall pay to Lender all rental payments required to be
made by Lessee pursuant to the terms of the Lease for the duration of the term
of the Lease, provided that Lender shall be subject to any defenses or offsets,
if any, applicable to Lender's acts or omissions following transfer to Lender of
title to the Property;
Continuation of Performance. Lessee shall be bound to Lender in accordance with
all of the provisions of the Lease for the balance of the term thereof, and
Lessee hereby attorns to Lender as its landlord, such attornment to be effective
and self-operative without the execution of any further instrument immediately
upon Lender succeeding to Lessor's interest in the Lease and giving written
notice thereof to Lessee;
No Offset. Lender shall not be liable for, nor subject to, any offsets or
defenses which Lessee may have by reason of any act or omission of Lessor under
the Lease, nor for the return of any sums which Lessee may have paid to Lessor
under the Lease as and for security deposits, advance rentals or otherwise,
except to the extent that such sums are actually delivered by Lessor to Lender,
provided that Lender shall be subject to any defenses or offsets, if any,
applicable to Lender's acts or omissions following transfer to Lender of title
to the Property; and
Subsequent Transfer. If Lender, by succeeding to the interest of Lessor under
the Lease, should become obligated to perform the covenants of Lessor
thereunder, then, upon any further transfer of Lessor's interest by Lender, all
of such obligations shall terminate as to Lender.
NON-DISTURBANCE. In the event of a foreclosure under the Mortgage, Lender agrees
for itself and its successors and assigns that the leasehold interest of Lessee
under the Lease shall not be extinguished or terminated by reason of such
foreclosure, but rather the Lease shall continue in full force and effect and
Lender shall recognize and accept Lessee as tenant under the Lease subject to
the terms and provisions of the Lease except as modified by this Agreement;
provided, however, that Lessee and Lender agree that the following provisions of
the Lease (if any) shall not be binding on Lender: any option to purchase with
respect to the Property; any right of first refusal with respect to the purchase
of the Property; any provision regarding the use of insurance proceeds or
condemnation proceeds with respect to the Property which is inconsistent with
the terms of the Mortgage.
MISCELLANEOUS.
Heirs, Successors, Assigns and Transferees. The covenants herein shall be
binding upon, and inure to the benefit of, the heirs, successors and assigns of
the parties hereto; and
Notices. All notices or other communications required or permitted to be given
pursuant to the provisions hereof shall be deemed served upon delivery or, if
mailed, upon the first to occur of receipt or the expiration of three (3) days
after deposit in United States Postal Service, certified mail, postage prepaid
and addressed to the address of Lessee or Lender appearing below:
Page 30
"OWNER" "LENDER"
TWO NORTH RIVERSIDE PLAZA JOINT VENTURE XXXXX FARGO BANK, NATIONAL ASSOCIATION
LIMITED PARTNERSHIP Attention: Xxxx Xxxxxxxxx
Attention: Building Manager 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
c/o Equity Office Properties Xxxxxxx, Xxxxxxxx 00000
Two Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
EQUITY OFFICE PROPERTIES
Attention: Chicago Region Counsel
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000
"LESSEE"
provided, however, any party shall have the right to change its address for
notice hereunder by the giving of written notice thereof to the other party in
the manner set forth in this Agreement; and
Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
and be construed as one and the same instrument; and
Remedies Cumulative. All rights of Lender herein to collect rents on behalf of
Lessor under the Lease are cumulative and shall be in addition to any and all
other rights and remedies provided by law and by other agreements between Lender
and Lessor or others; and
Paragraph Headings. Paragraph headings in this Agreement are for convenience
only and are not to be construed as part of this Agreement or in any way
limiting or applying the provisions hereof.
INCORPORATION. Exhibit A is attached hereto and incorporated herein by this
reference.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"OWNER"
TWO NORTH RIVERSIDE PLAZA JOINT
VENTURE LIMITED PARTNERSHIP, an
Illinois limited partnership, sole
beneficiary of LaSalle National Trust,
N.A., successor trustee under Trust
Agreement dated June 26, 1969 and
known as Trust No. 39712
By: Equity Office Properties
Management Corp., a Delaware
corporation, as agent
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Page 31
"LENDER"
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By:
----------------------------------
Its:
---------------------------------
"LESSEE"
By:
----------------------------------
Its:
---------------------------------
Page 32
Exhibit A
DESCRIPTION OF PROPERTY
Attached
Page 33
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On , 2001, before me, the undersigned, a Notary Public in and
------------
for said State personally appeared known to me to be the
----------------------
of , as the agent of TWO NORTH
------------------- ----------------------
RIVERSIDE PLAZA JOINT VENTURE LIMITED PARTNERSHIP, a Delaware limited
partnership, and acknowledged to me that such individual executed the within
instrument on behalf of said corporation as agent of and on behalf of said
limited partnership.
WITNESS my hand and official seal.
---------------------------------------
Notary Public in and for said
County and State
[SEAL]
Page 34
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On , 2001, before me, the undersigned, a Notary Public
-------------------
in and for said State personally appeared known to me
--------------------------
to be the of XXXXX FARGO BANK, NATIONAL ASSOCIATION,
---------------------------
and acknowledged to me that such individual executed the within instrument on
behalf of WELL FARGO BANK, NATIONAL ASSOCIATION.
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said
County and State
[SEAL]
Page 35
STATE OF ILLINOIS )
) SS:
COUNTY OF XXXX )
On , 2001, before me, the undersigned, a Notary Public in
------------------
and for said State personally appeared known
----------------------------------
to me to be the of ,
---------------------- -------------------------------------
and acknowledged to me that such individual executed the within instrument on
behalf of .
-------------------------------------------------
WITNESS my hand and official seal.
----------------------------------------
Notary Public in and for said
County and State
[SEAL]
Page 36
EXHIBIT G
MEMORANDUM OF LEASE
DATE OF LEASE: , 200
--------------- -
LANDLORD:
ADDRESS:
TENANT:
ADDRESS:
LEASE AREA: Approximately square feet in the Building located
----------
at and described on the legal description
-----------------
attached hereto as Exhibit A.
TERM OF LEASE: A period of (___) years and (___) months
----- -----
commencing on , 20 and ending on ,
---------- -- ------------
, as such dates may be adjusted pursuant to the terms
------
of the Lease.
OPTION TO EXTEND: Lessor has granted to Lessee the option to extend the term of
the Lease for one additional term of (__) years.
----
This Memorandum to Lease is only a memorandum of certain terms of the Lease
and shall not serve to expand or vary the existing Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of
Lease as of this day of , 200 .
---- ------------- -
WITNESSES LANDLORD:
-------------------------------------
TENANT:
-------------------------------------
By:
------------------------------------- ------------------------------------
Name:
------------------------------------- ----------------------------------
Title:
---------------------------------
This document was prepared by,
and after recording, return to:
[NAME OF ATTORNEY]
--------------------------------
--------------------------------
--------------------------------
--------------------------------
1
STATE OF )
-----------------
) SS
COUNTY OF )
----------------
BE IT REMEMBERED, that on the day of , 20 , before me, a
---- ---------- --
Notary Public in and for said County personally appeared
-----------------------
, by , its
---------------------------- ----------------------- ----------------
President, the in the foregoing
-------------------------- ------------------
who acknowledged that the signing thereof was the duly authorized act and deed
of said corporation and his free and voluntary act and deed as said officer for
the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written.
-------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
STATE OF )
------------------
) SS
COUNTY OF )
-----------------
BE IT REMEMBERED, that on the day of , 20 , before me, a
---- ------------- --
Notary Public in and for said County, personally appeared
----------------------
, the in the foregoing
---------------------------- -----------------------
GUARANTY, who acknowledged that the signing thereof was free and
------------
voluntary act and deed for the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal on the day and year first above written.
-------------------------------------
Notary Public
My Commission Expires:
-------------------------------------
State of California )
County of )
----------------
On , before me, ,
-------------- --------- ----------------------------------
personally appeared
------------------------------------------------------------
personally known to me - OR - proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
2
EXHIBIT A
LEGAL DESCRIPTION
3
