EXHIBIT 10.119
LEASE AGREEMENT WITH ZURICH AMERICAN INSURANCE COMPANY
FOR THE WINDY POINT II BUILDING
WINDY POINT OF SCHAUMBURG II
OFFICE LEASE
[Build-to-Suit]
BETWEEN
WINDY POINT OF SCHAUMBURG LLC
as Landlord
AND
ZURICH AMERICAN INSURANCE COMPANY
as Tenant
Dated: May 6, 2000
TABLE OF CONTENTS
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1. DEMISE AND TERM. ..................................................... 1
A. Demise and Term ................................................. 1
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B. Determination of the Premises. .................................. 1
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2. RENT. ................................................................ 2
A. Definitions. .................................................... 2
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B. Components of Rent. ............................................. 5
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C. Payment of Rent. ................................................ 6
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D. Caps on Expenses and Taxes. ..................................... 7
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3. USE. ................................................................. 8
4. CONDITION OF PREMISES. ............................................... 8
A. Initial Condition ............................................... 8
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B. Americans With Disabilities Act ................................. 9
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5. BUILDING SERVICES. ................................................... 10
A. Basic Services. ................................................. 10
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B. Electricity. .................................................... 10
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C. Telephones. ..................................................... 11
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D. Additional Services. ............................................ 11
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E. Failure or Delay in Furnishing Services. ........................ 12
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6. RULES AND REGULATIONS. ............................................... 12
7. CERTAIN RIGHTS RESERVED TO LANDLORD. ................................. 12
8. MAINTENANCE AND REPAIRS. ............................................. 13
9. ALTERATIONS. ......................................................... 14
A. Requirements. ................................................... 14
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B. Liens. .......................................................... 15
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C. Union Labor. .................................................... 15
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10. INSURANCE. ........................................................... 15
A. Tenant's Insurance. ............................................. 15
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B. Landlord's Insurance. ........................................... 16
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C. Mutual Waiver of Subrogation. ................................... 16
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11. WAIVER AND INDEMNITY. ................................................ 17
A. Tenant's Waiver. ................................................ 17
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B. Tenant's Indemnity. ................................................. 17
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C. Landlord's Waiver. .................................................. 17
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D. Landlord's Indemnity. ............................................... 18
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12. FIRE AND CASUALTY. ........................................................ 18
13. CONDEMNATION. ............................................................. 19
14. ASSIGNMENT AND SUBLETTING. ................................................ 19
A. Landlord's Consent. ................................................. 19
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B. Standards for Consent. .............................................. 20
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C. Recapture. .......................................................... 21
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15. SURRENDER. ................................................................ 21
16. DEFAULTS AND REMEDIES. .................................................... 22
A. Tenant's Default. ................................................... 22
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B. Right of Re-Entry. .................................................. 22
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C. Reletting. .......................................................... 22
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D. Termination of Lease. ............................................... 23
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E. Other Remedies. ..................................................... 23
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F. Bankruptcy. ......................................................... 23
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G. Waiver of Trial by Jury. ............................................ 23
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H. Venue ............................................................... 23
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I. Default by Landlord ................................................. 23
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J. Tenant's Limited Right of Self-Help and Limited Right of Set-Off .... 24
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17. HOLDING OVER. ............................................................. 24
18. INTENTIONALLY DELETED. .................................................... 25
19. INTENTIONALLY DELETED. .................................................... 25
20. ESTOPPEL CERTIFICATES. .................................................... 25
21. SUBORDINATION. ............................................................ 25
22. QUIET ENJOYMENT. .......................................................... 26
23. BROKER. ................................................................... 26
24. NOTICES. .................................................................. 27
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25. MISCELLANEOUS....................................................... 27
A. Successors and Assigns....................................... 27
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B. Entire Agreement............................................. 28
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C. Time of Essence.............................................. 28
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D. Execution and Delivery....................................... 28
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E. Severability................................................. 28
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F. Governing Law................................................ 28
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G. Attorneys' Fees.............................................. 28
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X. Xxxxx in Possession; Contingencies........................... 28
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I. Joint and Several Liability.................................. 30
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J. Force Majeure................................................ 30
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K. Captions..................................................... 30
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L. No Waiver.................................................... 30
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M. No Recording................................................. 31
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N. Limitation of Liability...................................... 31
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O. Counterparts; Telecopied Signatures.......................... 31
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26. PARKING............................................................. 31
A. Parking Areas................................................ 31
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B. Initial Parking Deck......................................... 32
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C. Construction of Additional Parking Areas..................... 32
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D. Reserved Parking Spaces...................................... 33
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27. EXPANSION OPTION.................................................... 33
A................................................................... 33
Expansion Space and Expansion Date.................................. 33
B. Expansion Option............................................. 34
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C. Term......................................................... 34
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D. Base Rent.................................................... 34
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E. Adjustment Rent.............................................. 34
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F. No Rent Abatement............................................ 34
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G. Tenant Improvements.......................................... 35
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H. Application of Other Provisions.............................. 35
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I. Amendment.................................................... 35
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J. Termination.................................................. 35
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28. RIGHT OF FIRST REFUSAL.............................................. 35
A. ROFR Space................................................... 35
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B. Right of First Refusal....................................... 35
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C. Terms........................................................ 36
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D. Amendment.................................................... 38
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E. Termination.................................................. 38
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29. EXTENSION OPTIONS................................................... 38
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A. First Extension Option......................................... 38
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B. Second Extension Option........................................ 38
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C. Terms.......................................................... 39
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D. Amendment...................................................... 41
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E. Termination.................................................... 41
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30. CONTRACTION OPTION................................................... 41
A. Contraction Option............................................. 41
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B. Exercise of Contraction Option................................. 41
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C. Terms.......................................................... 42
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D. Amendment...................................................... 43
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E. Termination.................................................... 43
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31. TERMINATION OPTION................................................... 43
A. Termination Option............................................. 43
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B. Terms.......................................................... 44
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C. Termination.................................................... 45
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32. RIGHT OF SECOND OPPORTUNITY IN ADJACENT BUILDING..................... 45
X. XXXX Space..................................................... 45
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B. Right of Second Opportunity.................................... 45
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C. Terms.......................................................... 46
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D. Amendment or New Lease......................................... 47
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E. Termination.................................................... 47
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33. RIGHTS OF REFUSAL TO PURCHASE BUILDING............................... 48
34. SIGNAGE.............................................................. 48
35. ENVIRONMENTAL PROTECTION............................................. 48
A. Landlord's Environmental Protection............................ 49
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B. Tenant's Environmental Protection.............................. 49
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C. Hazardous Substances........................................... 50
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36. ROOFTOP COMMUNICATIONS EQUIPMENT..................................... 50
37. CAFETERIA............................................................ 50
38. STORAGE SPACE........................................................ 51
A. Storage Space.................................................. 51
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B. Storage Space Rent............................................. 51
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C. Use............................................................ 51
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EXHIBIT A - Determination of Base Rent ................................ A-1
EXHIBIT B - Rules and Regulations ..................................... B-1
EXHIBIT C - Work Letter Agreement ..................................... X-0
XXXXXXX X - Xxxxx Xxxxxxxxxx Agreement ................................ D-1
EXHIBIT E - HVAC Specifications ....................................... G-1
EXHIBIT F - Janitorial Specifications ................................. F-1
EXHIBIT G - Form of SNDA .............................................. G-1
EXHIBIT H - Site Plan Showing Current Parking ......................... H-1
EXHIBIT I - Example of Calculation of Parking Deck Rent ............... I-1
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OFFICE LEASE
[Build-to-Suit]
THIS LEASE is made as of May 6, 2000, between WINDY POINT OF SCHAUMBURG
LLC, a Delaware limited liability company, having an address at c/x Xxxxxxx
Realty Corp., 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Landlord"), and
ZURICH AMERICAN INSURANCE COMPANY, a New York corporation, having an address at
0000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: Zurich U.S. Real Estate
("Tenant"), for space in the 11-story office building to be built at 0000
XxXxxxxx Xxxxxxx and to be known as "Windy Point of Schaumburg II," located in
the Windy Point of Schaumburg complex (such building, including the land upon
which the building thereon is situated, being herein referred to as the
"Building"). The following schedule (the "Schedule") sets forth certain basic
terms of this Lease:
SCHEDULE
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1. Premises ... At least 250,000 rentable square feet in the Building, as more
particularly described in Section 1B.
2. Base Rent ..... To be determined as provided in Exhibit A attached hereto.
3. Tenant's Proportionate Share: ... To be determined as provided in Section
2A(iv)
4. Security Deposit:. ................................................... None
5. Commencement Date:. ..................................... September 1, 2001
6. Expiration Date:. ........................................ August 31, 2011
7. Brokers:. ................ Xxxxxxx Realty Corp. and Xxxxxx X. Xxxxxxx, Inc.
1. DEMISE AND TERM.
A. Demise and Term. Landlord leases to Tenant and Tenant leases from
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Landlord the Premises (the "Premises") described in Section 1B, subject to the
covenants and conditions set forth in this Lease (including the Work Letter
Agreement attached hereto as Exhibit C [the "Work Letter Agreement"]), for a
term (the "Term") commencing on the date (the "Commencement Date") which is the
earlier to occur of (a) the date described in Item 5 of the Schedule, or (b) the
date that Tenant takes occupancy of the Premises, and expiring on the date (the
"Expiration Date") described in Item 6 of the Schedule, unless terminated
earlier as otherwise provided in this Lease. The Commencement Date and the
Expiration Date are each subject to deferment as is provided in Section 25H
below. Tenant shall complete and furnish to Landlord, on or before occupancy of
the Premises, the Suite Acceptance Agreement attached hereto as Exhibit D (the
"Suite Acceptance Agreement"), which shall acknowledge the actual Commencement
Date and the Expiration Date.
B. Determination of the Premises. The Premises shall consist of at least
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250,000 rentable square feet, consisting of the floors designated by Tenant not
later than August 1, 2000. Only one floor within the initial Premises may be
less than an entire floor. The Premises may not consist of more than two
contiguous portions (i.e., there may not be more than one interruption or "gap"
in the contiguity of the Premises). By written notice to Landlord not later than
August 1, 2000, Tenant may elect to (i) increase the Premises by whole or
partial floors (so long as, after giving effect
to the increase, the Premises contains only one partial floor) up to the entire
rentable area within the Building, or (ii) decrease the Premises by one floor
(such floor to be designated by Tenant in its notice to Landlord and to be
either the highest or lowest floor that is part of the Premises). If pursuant to
the preceding sentences Tenant elects to lease a partial floor, such portion of
the Premises on the floor shall be a single, contiguous space and both the
portion of the Premises and the balance of the space on the floor shall have a
configuration that allows, in Landlord's reasonable judgment, (i) Landlord to
lease the spaces at the then prevailing market rate for the Building, (ii) full
and direct access to public corridors and other common areas of the Building and
(iii) full compliance with all applicable building codes. On any partial floor
occupied by Tenant, Landlord, at its expense, shall install a Building standard
multi-tenant elevator lobby and, if required, Building standard corridors.
Furthermore, by written notice to Landlord not later than December 1, 2000,
Tenant may elect to lease the entire rentable area within the Building. The
rentable area of the Premises shall be determined by Landlord's architect in
accordance with the standards set forth in Section 2A(v) prior to the delivery
of the Premises to Tenant. The Suite Acceptance Agreement shall verify the
rentable area of the Premises.
2. RENT.
A. Definitions. For purposes of this Lease, the following terms shall
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have the following meanings:
(i) "Expenses" shall mean all expenses, costs and
disbursements (other than Taxes) paid or incurred by Landlord in connection
with the ownership, management, maintenance, operation, replacement and
repair of the Building. Expenses shall include the Building's share of
expenses as part of the Windy Point of Schaumburg complex (the "Complex")
pursuant to the Declaration (as hereinafter defined). Expenses shall not
include: (a) costs incurred with respect to the installation of leasehold
improvements for tenants in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating vacant space for
tenants of the Building (including architectural, space planning and
engineering services); (b) costs of capital improvements (except for costs
of any capital improvement (1) made or installed [or service agreement or
lease entered into] for the purpose of reducing Expenses or improving the
operating efficiency of any system within the Building or (2) made or
installed pursuant to governmental requirement or insurance requirement not
in effect as of the Commencement Date, which costs shall be amortized by
Landlord on a straight-line basis over the useful life of the improvement
in accordance with generally accepted accounting principles consistently
applied [and provided that with respect to costs of the type described in
clause (1), the amortized amount included in Expenses in any year shall not
exceed the savings in Expenses that occur in such year as a result of the
capital improvement]); (c) costs and expenses (including attorneys' fees
and disbursements) incurred in connection with negotiations or disputes
with past, present or prospective tenants of the Building; (d) costs
incurred by Landlord for the repair of damage to the Building, to the
extent that Landlord is reimbursed by insurance proceeds (or would have
been reimbursed if Landlord had carried the insurance required pursuant to
Section 10B) (provided
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all costs that are not recovered under such insurance as a result of any
commercially reasonable deductible amount may be included in Expenses); (e)
expenses in connection with services or other benefits offered to other
tenants in the Building, but not to Tenant; (f) costs of services
(including management services) provided by Landlord affiliates to the
extent that such costs exceed the cost of such services rendered by
unaffiliated third parties on a competitive basis; (g) Landlord's general
corporate overhead and general administrative expenses; (h) advertising
expenses, including those incurred in the future leasing of the Building;
(i) acquisition or leasing costs of sculpture, paintings, or works of art;
(j) interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the Building
and legal fees and transaction costs incurred in obtaining such mortgages
or debt instruments; (k) fines or penalties, and interest accrued thereon,
incurred as a result of late payments by Landlord (provided Tenant has
promptly paid all Rent due hereunder); (l) that portion of the wages and
salaries, and payroll taxes and similar governmental charges with respect
thereto, of Building management employees who do not devote substantially
all of their time to management of the Building, which is in excess of a
pro rata portion thereof based upon the time spent by such personnel in the
management of the Building in relation to their total hours worked; (m) any
ground lease rental (except as the same relates to the payment of Expenses
or Taxes to the lessor); (n) depreciation, amortization and interest
payments, except as provided herein and except on materials, tools,
supplies and vendor-type equipment purchased by Landlord to enable Landlord
to supply services Landlord might otherwise contract for with a third party
where such depreciation, amortization and interest payments would otherwise
have been included in the charge for such third party's services, all as
determined in accordance with generally accepted accounting principles,
consistently applied, and when depreciation or amortization is permitted,
the item shall be amortized on a straight-line basis over its reasonably
anticipated useful life (and provided that if Landlord includes any such
depreciation of personal property in Expenses, Landlord may not also
include the costs of replacement of such personal property to the extent of
the depreciation taken by Landlord for such personal property); (o)
brokerage or leasing commissions; (p) charitable or political
contributions; (q) any bad debt loss, rent loss, or reserves for bad debt
or rent loss or reserves for replacement of personal property; (r) any
management fee in excess of five percent (5%) of the gross revenues for the
Building; (s) Landlord's entertainment expenses and travel expenses, except
for those travel expenses that are necessary, reasonable and incurred in
connection with Landlord's operation of the Building; (t) expenses for
which Landlord has received any reimbursement, to the extent of such
reimbursement, regardless of whether such reimbursement is from one source
or more than one source, including without limitation reimbursements from
Tenant or another tenant (such as reimbursement for repairs) or pursuant to
contractor's or other warranties or condemnation, but excluding matters
paid as additional rent or rent adjustment or other tax or expense
pass-through or escalation expressly provided in a tenant lease; (u) costs
(including, without limitation, permit, license and inspection fees)
incurred by Landlord in connection with the initial construction of the
Building or any construction that Landlord is obligated to perform pursuant
to the Work Letter Agreement, and the costs of correcting defects in such
initial construction; (v)
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attorneys' fees and disbursements and other expenses incurred in connection
with the legal formation or continued legal existence of Landlord or the
defense of Landlord's title to or interest in the Building; (w) costs of
installing, operating, maintaining and xxxxxxx any speciality facility,
such as an observatory, broadcasting facility, athletic or recreational
club, child or daycare facility or other facility operated with the intent
of producing a profit or as a marketing inducement (excluding the Cafeteria
[as hereinafter defined], the Generator [as hereinafter defined], parking
areas, automatic teller machines, the management office and other
facilities provided solely to aid tenants and their invitees or strictly
related to the operation of the Building for office uses); (x) costs of
leasing items, facilities or equipment that, if purchased, would be a
capital improvement (except to the extent it is a capital improvement whose
costs may be included in Expenses pursuant to clause (b) above); (y) costs
(whether classified as capital items or expenses under generally accepted
accounting principles) incurred by Landlord to comply with or correct any
violations of any governmental laws, rules or regulations (other than
environmental laws, rules or regulations) existing as of the Commencement
Date, including, without limitation, the ADA (as hereinafter defined),
unless such non-compliance is due to any act or omission of Tenant (e.g.,
in the design of the Premises); (z) costs incurred by Landlord in excess of
$10,000 in the aggregate, annually, in connection with (i) complying with
environmental laws, rules and regulations existing as of the Commencement
Date (unless such noncompliance is due to any act or omission of Tenant) or
(ii) the removal, abatement, containment or remediation of asbestos or
asbestos-containing-materials from the Building (unless located in the
Building due to any act or omission of Tenant); (aa) costs of any work or
service performed for any facility other than the Building, other than the
Building's share of certain expenses for the Complex as provided in the
Declaration; (bb) costs of the initial cleaning and rubbish removal from
the Building to be performed prior to substantial completion of the base
Building; (cc) costs of initial landscaping of the Building or the Complex;
(dd) impact fees or subsidies imposed or incurred in connection with
governmental or regulatory approval of the Building or construction of the
Building; or (ee) costs of utility tap-on fees for the base Building.
Expenses shall be determined on an accrual basis. Landlord shall not be
permitted to "double recover" any Expenses (i.e., recover more than 100% of
Expenses) from the tenants of the Building (except as provided in the
immediately following sentence). Expenses shall not include any expenses
paid by any tenant of the Building directly to third parties (unless such
tenant's rent has been reduced on account of the tenant's express
assumption of an obligation that would otherwise have been borne by
Landlord), or as to which Landlord is otherwise reimbursed by any third
party, another tenant (except through the payment of a share of Expenses
and Taxes under such tenant's lease), or by insurance proceeds.
(ii) "Rent" shall mean Base Rent, Adjustment Rent and any other sums
or charges due by Tenant hereunder.
(iii) "Taxes" shall mean all taxes, assessments and fees levied upon
the Building, the property of Landlord located therein or the rents
collected therefrom, by any governmental entity based upon the ownership,
leasing, renting or operation of the Building,
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including all reasonable costs and expenses of protesting any such taxes,
assessments or fees. Taxes shall not include any net income, capital stock,
succession, transfer, mortgage, excess profit, franchise, gift, estate or
inheritance taxes; provided, however, if at any time during the Term, a tax
or excise on income is levied or assessed by any governmental entity, in
lieu of or as a substitute for, in whole or in part, real estate taxes or
other ad valorem taxes, such tax shall constitute and be included in Taxes.
For the purposes of determining Taxes for any given year, the amount to be
included for such year shall be the amount due and payable in such year. At
the written request of tenants leasing 50% or more of the rentable area of
the Building, Landlord shall contest in accordance with applicable law any
real property tax assessment applicable to the Building (provided such
request is made at least 30 days prior to the deadline for making such
protest). All assessments which are not specifically charged to Tenant
because of actions by Tenant, which can be paid by Landlord in
installments, shall be paid by Landlord in the maximum number of
installments permitted by law and not included as Taxes except in the year
in which the assessment installment is due and payable (and any interest
accruing on such amounts shall be included in Taxes).
(iv) "Tenant's Proportionate Share" at any time during the Term shall
mean the percentage obtained by dividing the number of rentable square feet
in the Premises at such time by the number of rentable square feet in the
Building.
(v) "rentable" shall mean the area of the applicable space
determined in accordance with the Standard Method for measuring Floor Area
in Office Buildings, ANSI 765.1-1996, as promulgated by the Building Owners
and Managers Association (BOMA) International. Notwithstanding the
foregoing, the floor area of the Cafeteria (as hereinafter defined) shall
be considered part of the Building's common area rather than rentable area.
(vi) "Lease Year" shall mean each 12-month period during the Term
commencing on the Commencement Date or an anniversary of the Commencement
Date.
(vii) "Controllable Expenses" shall mean only those items of Expenses
where the cost or expense thereof shall be within the reasonable ability of
Landlord to control (specifically excluded from Controllable Expenses,
without limitation, are the costs and expenses of electricity, fuels,
insurance snow removal and the wages of union employees [and the costs and
expenses of independent contractors who employ union employees]).
B Components of Rent. Tenant agrees to pay the following amounts to
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Landlord at the office of the Building or at such other place in the United
States as Landlord designates:
(i) Base rent ("Base Rent") to be paid in monthly
installments in the amounts determined as set forth on Exhibit A, in
advance on or before the first day of each month of the Term without
demand.
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(ii) Adjustment rent ("Adjustment Rent") in an amount equal to
Tenant's Proportionate Share of (a) the Expenses for any calendar year and
(b) the Taxes for any calendar year. Prior to each calendar year, or as
soon thereafter as reasonably possible (but not later than May 1 of the
calendar year in question), Landlord shall estimate the amount of
Adjustment Rent due for such year, and Tenant shall pay Landlord
one-twelfth of such estimate on the first day of each month during such
year. Such estimate may be revised by Landlord whenever it obtains
information relevant to making such estimate more accurate (but not more
than once in any calendar year). After the end of each calendar year,
Landlord shall deliver to Tenant a report setting forth the actual Expenses
and Taxes for such calendar year and a statement of the amount of
Adjustment Rent that Tenant has paid and is payable for such year (Landlord
shall deliver such report for each calendar year by May 1 of the following
year). Within thirty days after receipt of such report, Tenant shall pay to
Landlord the amount of Adjustment Rent due for such calendar year minus any
payments of Adjustment Rent made by Tenant for such year. If Tenant's
estimated payments of Adjustment Rent exceed the amount due Landlord for
such calendar year, Landlord shall apply such excess as a credit against
Tenant's other obligations under this Lease or promptly refund such excess
to Tenant if the Term has already expired, provided Tenant is not then in
default hereunder, in either case without interest to Tenant.
C. Payment of Rent. The following provisions shall govern the payment of
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Rent: (i) if this Lease commences or ends on a day other than the first day or
last day of a calendar year, respectively, the Rent for the year in which this
Lease so begins or ends shall be prorated and the monthly installments shall be
adjusted accordingly; (ii) all Rent shall be paid to Landlord without offset or
deduction (unless otherwise expressly permitted under this Lease), and the
covenant to pay Rent shall be independent of every other covenant in this Lease;
(iii) if during all or any portion of any year at least 95% of the rentable area
of the Building is not rented and occupied, Landlord shall make an appropriate
adjustment of Expenses and/or Taxes for such year to determine the Expenses
and/or Taxes that would have been paid or incurred by Landlord had the rentable
area of the Building been 100% rented and occupied for the entire year and the
amount so determined shall be deemed to have been the Expenses and/or Taxes for
such year; (iv) any sum due from Tenant to Landlord which is not paid within
five business days after the date due shall bear interest from the date due
until the date paid at the annual rate equal to the "Prime" or "Base" rate then
most recently announced by Bank One (Chicago) plus 4% (subject to change as such
rate changes), but in no event higher than the maximum rate permitted by law
(the "Default Rate"); and, in addition, if the payment of Rent is delinquent two
times during a 12-month period, Tenant shall pay Landlord a late charge for any
Rent payment which is paid more than five business days after its due date equal
to 3% of such payment; (v) if changes are made to this Lease or the Building
changing the number of square feet contained in the Premises or in the Building,
Landlord shall make an appropriate adjustment to Tenant's Proportionate Share
(provided all rentable areas shall be determined in accordance with the
measurement standards noted in Section 2A(v)); (vi) Tenant (or its designated
agent) shall have the right, upon reasonable prior written notice to Landlord,
to inspect Landlord's books and records relative to Expenses and Taxes during
normal business hours at any time within 120 days following the furnishing to
Tenant of the annual statement of Adjustment Rent; and, unless Tenant shall xxxx
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written exception to any item in any such statement within such 120-day period,
such statement shall be considered as final and accepted by Tenant (except as
provided below in this clause (vi) with respect to retroactive adjustments).
Tenant must timely pay all Adjustment Rent billed by Landlord pending the
outcome of its inspection or any audit of Landlord's books and records. If
Tenant makes such timely written exception, an audit as to the proper amount of
Adjustment Rent for such period shall be performed by a reputable certified
public accounting firm selected by Tenant, but subject to Landlord's reasonable
approval. After the auditor has reached a preliminary determination, each party
shall have 30 days to review the auditor's preliminary findings and comment
thereon (and, if applicable, advocate a change in such determination).
Thereafter the auditor shall notify the parties of its final determination,
which determination shall be final and conclusive. If the results of such audit
reveal that Tenant has overpaid or underpaid Adjustment Rent for the applicable
year, Landlord shall pay to Tenant such overpayment or Tenant shall pay to
Landlord such underpayment, as applicable, within 30 days after the results of
such audit are reported to the parties. If the results of an audit for a
particular year reveal that retroactive adjustments of Taxes may be appropriate
for a prior year (i.e., if Landlord receives a refund for Taxes paid by Tenant
in a prior year), then the auditor may examine the particular component of Taxes
for the prior year to determine the appropriate adjustment. Tenant agrees to pay
the entire cost of such audit unless it is determined that Landlord's original
determination of the Adjustment Rent for the year in issue was in error by more
than 3%, in which case Landlord agrees to pay the cost of such audit; (vii) in
the event of the termination of this Lease prior to the determination of any
Adjustment Rent, Tenant's agreement to pay any such sums and Landlord's
obligation to refund any such sums (provided Tenant is not in default hereunder)
shall survive the termination of this Lease; (viii) no adjustment to the Rent by
virtue of the operation of the rent adjustment provisions in this Lease shall
result in the payment by Tenant in any year of less than the Base Rent shown on
the Schedule; (ix) Landlord may at any time change the fiscal year of the
Building (provided Landlord shall not do so more than twice during the Term or
with the intention of increasing amounts payable by the tenants of the
Building); (x) each amount owed to Landlord under this Lease for which the date
of payment is not expressly fixed shall be due on the same date as the Rent
listed on the statement showing such amount is due; and (xi) if Landlord fails
to give Tenant an estimate of Adjustment Rent prior to the beginning of any
calendar year, Tenant shall continue to pay Adjustment Rent at the rate for the
previous calendar year until Landlord delivers such estimate, at which time
Tenant shall pay retroactively the increased amount for all previous months of
such calendar year.
D. Caps on Expenses and Taxes. Notwithstanding any provision in this
--------------------------
Lease to the contrary, solely for purposes of calculating Adjustment Rent due
hereunder:
(i) Taxes per rentable square foot of the Premises for the
calendar year 2001 shall not exceed $1.63, and
(ii) Taxes per rentable square foot of the Premises for the
calendar year 2002 shall not exceed the sum of (x) $3.17 plus (y) if
the Taxes per rentable square foot of the Premises for the calendar
year 2001 were less than $1.63, the amount of such difference.
7
Commencing with the fourth Lease Year (or the third Lease Year if, as of the
commencement of the third Lease Year, Tenant has then leased all rentable areas
within the Building), solely for purposes of calculating Adjustment Rent due
hereunder, Controllable Expenses for any Lease Year shall not exceed an amount
equal to the product of the total actual Controllable Expenses for the preceding
Lease Year multiplied by 1.04. Such limitations on Taxes and Controllable
Expenses shall apply only to Taxes and Controllable Expenses, as the case may
be, and not to other items of Adjustment Rent and shall not limit or otherwise
affect Tenant's obligations regarding the payment of any component of Rent other
than the Taxes and Controllable Expenses component of Adjustment Rent.
3. USE. Tenant agrees that it shall occupy and use the Premises only as
non-governmental business offices and for no other purposes. Tenant shall, at
its sole cost and expense, comply with all federal, state and municipal laws,
ordinances, rules and regulations and all covenants, conditions and restrictions
of record applicable to Tenant's use or Tenant's occupancy of the Premises.
Subject to the provisions of this Lease, Tenant shall have access to the
Premises 24 hours a day, seven days a week. Tenant may operate an emergency
generator (the "Generator") within the first floor of the Premises to provide
back-up power to Tenant's computer room. Notwithstanding the foregoing, at
Tenant's election, Landlord shall locate the Generator at a mutually agreeable
location outside the Building, with appropriate fencing to preserve the
aesthetic appeal of the Complex, if approved by all governmental authorities
(Tenant acknowledges that Landlord has not represented or warranted that such
approval is likely). Tenant shall operate such Generator in compliance with all
applicable laws, codes, ordinances and statutes, as well as all manufacturers'
recommendations and insurance requirements. Landlord shall install the Generator
as part of the Base Building Work described in Paragraph 1 of the Work Letter
Agreement. Landlord and Tenant shall cooperate in good faith to determine the
design and specifications for the Generator. Tenant shall be responsible for all
costs of operating, maintaining and insuring the Generator. Landlord shall pay
the cost of purchasing and installing the Generator and the costs of improving
and equipping the Cafeteria (as hereinafter defined), provided such costs
relating to the Generator and the Cafeteria do not exceed, in the aggregate,
$380,000 (and if the costs exceed such amount, Tenant shall be responsible for
the excess [subject to payment from the Allowance]).
4. CONDITION OF PREMISES.
A. Initial Condition. Tenant's taking possession of the Premises shall
-----------------
be conclusive evidence that the Premises were in good order and satisfactory
condition when Tenant took possession, subject to (i) minor finish-out or
"punchlist" items and (ii) latent defects specified in a written notice given by
Tenant to Landlord during the first 12 months of the Term (or, with respect to
an item covered under a contractor's or manufacturer's warranty beyond the first
12 months of the Term, during the period covered by such warranty, not to exceed
the first 24 months of the Term [Tenant acknowledges that Landlord shall not be
obligated to seek extended warranties]) (failure of Tenant to timely notify
Landlord of any such latent defects shall be deemed a waiver and acceptance by
Tenant of said latent defects). No agreement of Landlord to alter, remodel,
decorate, clean or improve the Premises or the Building (or to provide Tenant
with any credit or allowance for the same), and no representation regarding the
condition of the Premises or the Building, have been
8
made by or on behalf of Landlord or relied upon by Tenant, except as stated in
this Lease and the Work Letter Agreement attached hereto as Exhibit C.
B. Americans With Disabilities Act. The parties acknowledge that the
-------------------------------
Americans With Disabilities Act of 1990 (42 U.S.C. (S) 12101 et seq.) and
regulations and guidelines promulgated thereunder, as amended and supplemented
from time to time (collectively referred to herein as the "ADA"), establish
requirements under Title III of the ADA ("Title III") pertaining to business
operations, accessibility and barrier removal. Tenant acknowledges and agrees
that to the extent that Landlord prepares, reviews or approves any of plans or
specifications relating to leasehold improvements in the Premises, such action
shall in no event be deemed any representation or warranty that the same comply
with any requirements of the ADA. Notwithstanding anything to the contrary in
this Lease, the parties hereby agree to allocate responsibility for Title III
compliance as follows: (a) Landlord shall be responsible, at its sole expense,
for causing the base building restrooms and elevator lobbies within the Premises
to comply with the requirements of the ADAAG in effect as of the Commencement
Date and any other requirements under the ADA in effect as of the Commencement
Date; (b) Landlord shall be responsible for any non-compliance by the Premises
with the requirements of the ADAAG in effect as of the Commencement Date and any
other requirements under the ADA in effect as of the Commencement Date, if (and
only if) the Construction Documents were in compliance and Landlord's
performance of the Work (as defined in the Work Letter Agreement) was not in
compliance; (c) Landlord shall perform, at its sole expense, any so-called Title
III "path of travel" requirements triggered by the Work (as described in the
Work Letter Agreement) and Landlord shall perform, at Tenant's expense, any
"path of travel" requirements triggered by Tenant's performance of any
construction activities or alterations in the Premises after the Commencement
Date; (d) Landlord shall be responsible for causing the base building restrooms
and elevator lobbies within the Premises and the common areas of the Building to
comply with the requirements of the ADAAG and the ADA as they may be changed or
modified after the Commencement Date, provided Landlord may include the expenses
of such compliance in Expenses (if and to the extent allowed pursuant to Section
2A(i)(b)); (e) Landlord shall be responsible for causing the structural elements
within the Premises to comply with the requirements of the ADAAG and the ADA as
they may be changed or modified after the date of substantial completion of the
Work for the initial Premises, to the extent such requirements apply generally
to business offices and not to Tenant's particular use, and Landlord may include
the expenses of such compliance in Expenses (if and to the extent allowed
pursuant to Section 2A(i)(b)); and (f) except as provided above, Tenant shall be
responsible for all Title III compliance and costs in connection with the
Premises, including structural work, if any, and including any leasehold
improvements or other work to be performed in the Premises under or in
connection with this Lease. Except as set forth above with respect to Landlord's
Title III obligations, Tenant shall be solely responsible for all other
requirements under the ADA relating to Tenant or any affiliates or persons or
entities related to Tenant, operations of Tenant or its affiliates, or the
Premises, including, without limitation, requirements under Title I of the ADA
pertaining to Tenant's employees.
9
5. BUILDING SERVICES.
A. Basic Services. Landlord shall furnish the following services: (i)
--------------
heating and air conditioning to provide a temperature condition required for
comfortable occupancy of the Premises under normal business operations, and
meeting the specifications attached hereto as Exhibit E (assuming customary
commercial business operations and densities of personnel and heat-generating
equipment not exceeding the assumed density and capacity set forth in Schedule 1
of the Work Letter Agreement), weekdays during the continuous 11-hour period
designated by Tenant (which period must include the period from 8:00 A.M. to
6:00 P.M.), and Saturdays from 8:00 A.M. to 1:00 P.M., holidays excepted; (ii)
water for drinking, and water for any private restrooms and office kitchen
requested by Tenant; (iii) men's and women's restrooms with tempered running
water at locations designated by Landlord and in common with other tenants of
the Building; (iv) daily janitor service in the Premises and common areas of the
Building, weekends and holidays excepted, including periodic outside window
washing of the perimeter windows in the Premises (the current specifications for
such janitor service are attached hereto as Exhibit F [and are subject to change
from time to time in Landlord's reasonable discretion, provided such
specifications are commensurate with those of Class A office buildings in
Schaumburg, Illinois]); (v) elevator service in common with Landlord and other
tenants of the Building, 24 hours a day, 7 days a week (including a "swing"
elevator for moving freight, provided the moving of freight within the Building
is subject to reasonable scheduling by Landlord); (vi) snow and ice removal from
the sidewalks at the entrances to the Building within a reasonable period after
it has stopped accumulating; (vii) vermin control, if necessary; and (viii) a
card reader system for access to the floors of the Building and after-hours
access to the Building entrances (not later than the Commencement Date Landlord
shall provide a reasonable number of access cards to Tenant for its employees
and the costs thereof shall be included in Expenses [additional or replacement
access cards will be provided at Tenant's expense]); at least four surveillance
cameras monitoring access points to the Building as well as cameras monitoring
any parking deck serving the Building; a security desk in the lobby of the
Building manned, at a minimum, during the hours of 7:00 A.M. to 11:00 P.M.,
weekends and holidays excepted. For purposes of this Xxxxxxx 0.X, "xxxxxxxx"
shall mean New Years Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving and Christmas, as well as, at Landlord's election, any other day
that the majority of Class A office buildings in Schaumburg, Illinois treat as a
public holiday.
B. Electricity. Electricity shall be distributed to the Premises by
-----------
the electric utility company serving the Building (as reasonably designated by
Landlord from time to time) and Landlord shall permit Landlord's wire and
conduits, to the extent available, suitable and safely capable, to be used for
such distribution. Tenant at its cost shall make all necessary arrangements with
the electric utility company for metering and paying for electric current
furnished to the Premises. All electricity used during the performance of
janitor service, or the making of any alterations or repairs in the Premises, or
the operation of any special air conditioning systems serving the Premises,
shall be paid for by Tenant.
10
C. Telephones. Tenant shall be responsible for arranging for its own
----------
telecommunications services at the Premises. All telegraph, telephone, and
electric connections which Tenant may desire shall be first approved by Landlord
in writing (which approval shall not be unreasonably withheld), before the same
are installed, and the location of all wires and the work in connection
therewith shall be performed by contractors approved by Landlord (which approval
shall not be unreasonably withheld, conditioned or delayed) and shall be subject
to the direction of Landlord. Tenant shall be responsible for and shall pay all
costs incurred in connection with the installation of telephone cables and
related wiring in the Premises, including, without limitation, any hook-up,
access and maintenance fees related to the installation of such wires and cables
in the Premises and the commencement of services therein, and the maintenance
thereafter of such wire and cables; and there shall be included in Expenses for
the Building all installation, hook-up or maintenance costs incurred by Landlord
in connection with telephone cables and related wiring in the Building which are
not allocable to any individual users of such service but are allocable to the
Building generally. If Tenant fails to maintain all telephone cables and related
wiring in the Premises, such failure adversely affects or interferes with the
operation or maintenance of any other telephone cables or related wiring in the
Building and such failure continues for more than 24 hours after written notice
from Landlord to Tenant at the Premises, Landlord or any vendor hired by
Landlord may enter into and upon the Premises forthwith and perform such
repairs, restorations or alterations as Landlord reasonably deems necessary in
order to eliminate any such interference (and Landlord may recover from Tenant
all of Landlord's reasonable costs in connection therewith). Upon expiration of
the Term hereof Tenant shall remove all telephone cables and related wiring
installed by or for Tenant which Landlord requests Tenant to remove (provided
Tenant shall not be required to remove cables and wiring contained within the
Premises). Tenant agrees that neither Landlord nor any of its agents or
employees shall be liable to Tenant, or any of Tenant's employees, agents,
customers or invitees or anyone claiming through, by or under Tenant, for any
damages, injuries, losses, expenses, claims or causes of action because of any
interruption, diminution, delay or discontinuance at any time for any reason in
the furnishing of any telecommunications service to the Premises or the
Building. The foregoing waiver shall not excuse Landlord from liability arising
from Landlord's negligence or wilful misconduct (subject to Section 10C).
D. Additional Services. Landlord shall not be obligated to furnish
-------------------
any services other than those stated above. If Landlord elects to furnish
services requested by Tenant in addition to those stated above (including
services at times other than those stated above), Tenant shall pay Landlord's
then-prevailing, reasonable charges for such services. If Tenant shall fail to
make any such payment, Landlord may, without notice to Tenant and in addition to
all other remedies available to Landlord, discontinue any additional services.
No discontinuance of any such additional service shall result in any liability
of Landlord to Tenant or be considered as an eviction or a disturbance of
Tenant's use of the Premises. In addition, if Tenant's concentration of
personnel or equipment adversely affects the temperature or humidity in the
Premises or the Building and such condition continues for more than 20 days
after written notice from Landlord, Landlord may install supplementary air
conditioning units in the Premises; and Tenant shall pay for the reasonable cost
of installation, operation and maintenance thereof. Landlord will allow Tenant
to use the Building's excess chilled water (i.e., chilled water not used for the
base Building air conditioning facilities), if
11
any, for the operation of package air conditioning units in the Premises. Such
package units shall be installed and maintained by Tenant at its sole expense.
Landlord, as part of the Work, will install a flow meter to measure Tenant's
consumption of chilled water in the operation of Tenant's separate air
conditioning units and Tenant shall pay for such chilled water, at Landlord's
actual cost (as reasonably determined by Landlord), within 30 days after being
billed therefor.
E. Failure or Delay in Furnishing Services. Tenant agrees that
---------------------------------------
Landlord shall not be liable for damages for failure or delay in furnishing any
service stated above if such failure or delay is caused, in whole or in part, by
any one or more of the events stated in Section 25J below, nor shall any such
failure or delay be considered to be an eviction or disturbance of Tenant's use
of the Premises, or relieve Tenant from its obligation to pay any Rent when due,
or from any other obligations of Tenant under this Lease. Notwithstanding the
foregoing, if as a result of a negligent act or omission of Landlord or any
employee of Landlord (as distinguished from an act or omission of Tenant or the
occurrence of an event of force majeure [as defined in Section 25J hereof] or
the occurrence of a fire or other casualty which is covered by Section 12
hereof), any service to the Premises as described above is not furnished to the
Premises and if as a result thereof the Premises, or a "material part" (as
defined below) of the Premises, is rendered untenantable or inaccessible for a
period of five business days in any ten-day period, and Tenant does not occupy
the Premises, or such material part thereof which is rendered untenantable or
inaccessible, during such period, then as Tenant's sole remedy for such failure
to furnish such service, Base Rent and Adjustment Rent payable for such portion
of the Premises which Tenant does not so occupy shall xxxxx for the period
commencing as of the beginning of such period and expiring on the date such
service is restored or Tenant is able to resume occupancy of the Premises or
such material part thereof, as the case may be. (As used herein, the phrase
"material part" shall mean an amount in excess of 5% of the rentable area of the
Premises.)
6. RULES AND REGULATIONS. Tenant shall observe and comply and shall
cause its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the rules and regulations listed on Exhibit B attached
hereto and with such reasonable modifications and additions thereto as Landlord
may make from time to time. Landlord shall not be liable for failure of any
person to obey such rules and regulations. Landlord shall use reasonable efforts
to enforce such rules and regulations against other tenants, provided the
failure or inability of Landlord to enforce any such rules and regulations shall
not constitute a waiver thereof or relieve Tenant from compliance therewith.
Landlord shall not unreasonably discriminate against Tenant in the enforcement
of the rules and regulations.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights, each of which Landlord may exercise without notice to Tenant
(except as otherwise provided) and without liability to Tenant, and the exercise
of any such rights shall not be deemed to constitute an eviction or disturbance
of Tenant's use or possession of the Premises and shall not give rise to any
claim for set-off or abatement of rent or any other claim: (a) subject to
Section 34, upon not less than 120 days' prior written notice, to change the
name or street address of the Building or the suite number of any part of the
Premises; (b) subject to Section 34, to install, affix and maintain
12
any and all signs on the exterior or interior of the Building; (c) to make
repairs, decorations, alterations, additions, or improvements, whether
structural or otherwise, in and about the Building, and for such purposes, upon
not less than 24 hours' written notice to Tenant (excluding emergencies, when no
such notice shall be required), to enter upon the Premises, temporarily close
doors, corridors and other areas in the Building and interrupt or temporarily
suspend services or use of common areas, provided, however, Landlord shall use
reasonable efforts to schedule such work for Tenant's convenience and if such
repairs, decorations, alterations, additions or improvements are for the sole
benefit of a party other than Tenant, and such work will adversely impact
Tenant's operations within the Premises, at the request of Tenant, Landlord
shall conduct such repairs, decorations, alterations, additions or improvements
at hours other than normal business hours with the cost associated with such
after-hours work borne by Landlord or the party benefitting from such work; (d)
to retain at all times, and to use in appropriate instances, upon not less than
24 hours' oral or telephonic notice to Tenant at the Premises (excluding
emergencies, when no such notice shall be required), keys to all doors within
and into the Premises; (e) to grant to any person or to reserve unto itself the
exclusive right to conduct any business or render any service in the Building
(other than the financial services offered by the companies of the Zurich
Financial Services Group [the foregoing should not be construed to be the grant
of an exclusive right in favor of Tenant to render such services in the
Building]); (f) to show or inspect the Premises at reasonable times (but, with
respect to prospective tenants, only during the last year of the Term [taking
into account Tenant's exercise of the Contraction Option or the Termination
Option (as hereinafter defined)] or when the Premises are vacated or abandoned);
(g) to install, use and maintain in and through the Premises (behind walls, over
ceilings or under floors), pipes, conduits, wires and ducts serving the
Building, provided that such installation, use and maintenance does not
unreasonably interfere with Tenant's use or enjoyment of the Premises; and (h)
to take any other reasonable action in connection with the operation,
maintenance or preservation of the Building.
8. MAINTENANCE AND REPAIRS. Landlord shall maintain in good order and
repair the structural elements, roof, exterior walls and windows and public
common areas of the Building, and the base Building plumbing, heating,
ventilating and air conditioning systems. Subject to Tenant's obligations
pursuant to this Section 8, Landlord shall also perform any maintenance or make
any repairs to the Building as Landlord may reasonably deem necessary for the
safety, operation or preservation of the Building, or as Landlord may be
required or requested to do by any governmental authority or by the order or
decree of any court or by any other proper authority. The costs and expenses of
Landlord's maintenance and repairs shall be included in Expenses, except to the
extent prohibited pursuant to Section 2A(i). Tenant, at its expense, shall
maintain and keep the Premises (excluding the structural components) in good
order and repair at all times during the Term. In addition, subject to Section
10C, Tenant shall reimburse Landlord for the cost of any repairs to the Building
necessitated by the acts or omissions of Tenant, its subtenants, assignees,
invitees, employees, contractors and agents.
13
9. ALTERATIONS.
A. Requirements. Tenant shall not make any replacement, alteration,
------------
improvement or addition to or removal from the Premises (collectively an
"alteration") without the prior written consent of Landlord. Notwithstanding the
foregoing, no consent shall be necessary for a Cosmetic Alteration. A "Cosmetic
Alteration" means any decorative or cosmetic alteration that (i) together with
all other related alterations performed by Tenant does not cost more than
$250,000, in the aggregate, (ii) does not require the issuance of a building
permit and (iii) does not adversely affect the structural elements of the
Building or the base Building mechanical, electrical or plumbing systems, the
architectural aesthetics of the Building, the common areas of the Building or
the use by other tenants in the Building of their demised premises (provided
that even if Landlord's consent is not necessary for such a Cosmetic Alteration,
Tenant shall notify Landlord in advance prior to performing the Cosmetic
Alteration). In the event Tenant proposes to make any alteration, Tenant shall,
prior to commencing such alteration, submit to Landlord for prior written
approval: (i) detailed plans and specifications (other than a Cosmetic
Alteration); (ii) sworn statements (of the type customarily delivered by tenants
in Illinois with respect to leasehold improvement work performed by tenants),
including the names, addresses and, with respect to alterations costing more
than $25,000, in the aggregate, copies of contracts for all contractors; (iii)
all necessary permits evidencing compliance with all applicable governmental
rules, regulations and requirements (other than a Cosmetic Alteration); (iv)
certificates of insurance in form and amounts required by Landlord, adding
Landlord and any other parties reasonably designated by Landlord with an
interest in the Building (such as the Building Manager and any mortgagees) as
additional insureds; and (v) all other documents and information as Landlord may
reasonably request in connection with such alteration. Tenant agrees to pay
Landlord's reasonable and customary out-of-pocket costs and expenses incurred in
connection with review of all such items and Landlord's standard hourly charges
for supervision of the alteration (excluding alterations not requiring
Landlord's consent as provided above). Neither approval of the plans and
specifications nor supervision of the alteration by Landlord shall constitute a
representation or warranty by Landlord as to the accuracy, adequacy, sufficiency
or propriety of such plans and specifications or the quality of workmanship or
the compliance of such alteration with applicable law. Tenant shall pay the
entire cost of the alteration and, if requested by Landlord and if the cost of
the alteration might exceed $250,000, shall deposit with Landlord prior to the
commencement of the alteration, security for the payment and completion of the
alteration in form and amount required by Landlord (provided such security shall
not be required if Zurich American Insurance Company or any Affiliate [as
hereinafter defined] is the Tenant). Each alteration shall be performed in a
good and workmanlike manner, in accordance with the plans and specifications
approved by Landlord, and shall meet or exceed the standards for construction
and quality of materials established by Landlord for the Building. In addition,
each alteration shall be performed in compliance with all applicable
governmental and insurance company laws, regulations and requirements. Each
alteration shall be performed in harmony with Landlord's employees, contractors
and other tenants. Each alteration, whether temporary or permanent in character,
made by Landlord or Tenant in or upon the Premises (excepting only Tenant's
furniture, equipment and trade fixtures) shall become Landlord's property and
shall remain upon the Premises at the expiration or termination of this Lease
without compensation to Tenant; provided, however, that Landlord shall have the
right
14
to require Tenant to remove such alteration at Tenant's sole cost and expense in
accordance with the provisions of Section 15 of this Lease. Notwithstanding
anything contained in this Section 9A to the contrary, if Landlord gives its
consent or approval, pursuant to the provisions of this Section 9A, to allow
Tenant to make any alterations in the Premises, Landlord agrees to notify Tenant
in writing at the time of the giving of such consent or approval whether
Landlord will reserve the right to require Tenant to remove such alterations at
the termination or expiration of this Lease (notwithstanding the foregoing,
Tenant shall be obligated to remove raised computer flooring and supplemental
HVAC equipment, even if Landlord fails to notify Tenant of such obligation at
the time Landlord consents to such an alteration). Tenant shall be required to
close any floor openings created for Tenant, excluding floor openings for
internal stairways. The provisions of this Section 9A do not apply to the "Work"
to be performed by Landlord in accordance with Exhibit C.
B. Liens. Upon completion of any alteration, Tenant shall promptly
-----
furnish Landlord with sworn owner's and contractor's statements and full and
final waivers of lien covering all labor and materials included in such
alteration. Tenant shall not permit any mechanic's lien to be filed against the
Building, or any part thereof, arising out of any alteration performed, or
alleged to have been performed, by or on behalf of Tenant. If any such lien is
filed, Tenant shall within twenty days thereafter have such lien released of
record or deliver to Landlord a bond in form, amount, and issued by a surety
satisfactory to Landlord, indemnifying Landlord against all costs and
liabilities resulting from such lien and the foreclosure or attempted
foreclosure thereof. If Tenant fails to have such lien so released or to deliver
such bond to Landlord, Landlord, without investigating the validity of such
lien, may pay or discharge the same; and Tenant shall reimburse Landlord upon
demand for the amount so paid by Landlord, including Landlord's expenses and
reasonable attorneys' fees.
C. Union Labor. Tenant hereby agrees that it will employ, and will
-----------
cause its subtenants and assignees to employ, only contractors and
subcontractors subject to collective bargaining agreements with unions
affiliated with the AFL-CIO Building Trades Department (or any successor
organization) to perform alterations at the Premises.
10. INSURANCE.
A. Tenant's Insurance. Tenant, at its expense, shall maintain at all
------------------
times during the Term the following insurance policies: (a) fire insurance,
including extended coverage, vandalism, malicious mischief, sprinkler leakage,
water damage and all risk coverage and demolition and debris removal, insuring
the full replacement cost of all improvements, alterations or additions to the
Premises made at Tenant's expense, and all other property owned or used by
Tenant and located in the Premises; (b) commercial general liability insurance,
including blanket contractual liability insurance, with respect to the Building
and the Premises, with limits to be reasonably set by Landlord from time to time
(not in excess of the amounts then generally required by landlords of Class A
office buildings in Schaumburg, Illinois) but in any event not less than
$3,000,000 each occurrence combined single limit for bodily injury, sickness or
death or for damage to or destruction of property, including loss of use
thereof; (c) workers' compensation and occupational disease insurance with
Illinois statutory benefits and employers liability insurance with limits of not
less than $3,000,000
15
each accident, each disease and aggregate for disease; and (d) insurance against
such other risks and in such other amounts (not in excess of the amounts then
generally required by landlords of Class A office buildings in Schaumburg,
Illinois) as Landlord may from time to time reasonably require. The form of all
such policies and deductibles thereunder shall be subject to Landlord's prior
approval (which shall not be unreasonably withheld, conditioned or delayed). All
such policies shall be issued by insurers reasonably acceptable to Landlord (at
a minimum rated not less than A-VIII in Best's Insurance Guide) and licensed to
do business in Illinois. In addition, the commercial general liability policy
shall add Landlord, its property manager, any mortgage lender (currently The
Travelers Insurance Company), their respective successors and assigns, and any
other parties reasonably designated by Landlord with an interest in the Building
as additional insureds. All policies shall require at least thirty (30) days'
prior written notice to Landlord of termination or material reduction in
coverage and shall be primary and not contributory. Tenant shall at least ten
(10) days prior to the Commencement Date, and within ten (10) days prior to the
expiration of each such policy, deliver to Landlord certificates evidencing the
foregoing insurance or renewal thereof, as the case may be.
B. Landlord's Insurance. Landlord shall at all times during the Term
--------------------
carry a policy of insurance which insures the Building, including the Premises
(and including the improvements paid for with Landlord's Contribution [as
defined in the Work Letter Agreement]), against loss or damage by fire or other
casualty (namely, the perils against which insurance is afforded by a fire
insurance policy with "special cause of loss coverage) in an amount not less
than 90% of the replacement cost of the Building (excluding foundations);
provided, however, that Landlord shall not be responsible for, and shall not be
obligated to insure against, any loss of or damage to any personal property of
Tenant, or which Tenant may have in the Building or the Premises or any trade
fixtures installed by or paid for by Tenant on the Premises or any additional
improvements which Tenant may construct on the Premises. If any alterations or
improvements made by Tenant pursuant to Section 9 hereof result in an increase
of the premiums charged during the Term on the casualty insurance carried by
Landlord on the Building, then the cost of such increase in insurance premiums
shall be borne by Tenant, which shall reimburse Landlord for the same as
additional rent after being billed therefor. Landlord shall also carry
commercial general liability insurance with respect to the Building in amounts
and with coverages as is reasonably prudent (or may self-insure against the
liabilities covered by such insurance). Such policy shall be excess and
non-contributory of Tenant's liability policies. All insurance policies carried
by Landlord shall be issued by insurers rated, at a minimum, not less than A-
VIII in Best's Insurance Guide. The cost of all insurance maintained by Landlord
shall be included in Expenses.
C. Mutual Waiver of Subrogation. Landlord and Tenant each agree that
----------------------------
neither Landlord nor Tenant (nor their respective successors or assigns) will
have any claim against the other for any loss, damage or injury to property
which is covered by insurance carried by either party (or which would have been
covered if the respective party had carried the insurance required by this
Lease), notwithstanding the negligence of either party in causing the loss. Each
party agrees to obtain an agreement from its insurer permitting the foregoing
waiver if the policy does not expressly permit a waiver of subrogation.
16
11. WAIVER AND INDEMNITY.
A. Tenant's Waiver. Tenant releases Landlord, its property manager
---------------
and their respective agents and employees from, and waives all claims for,
damage or injury to person or property and loss of business sustained by Tenant
and resulting from the Building or the Premises or any part thereof or any
equipment therein becoming in disrepair, or resulting from any accident in or
about the Building or the Complex. This paragraph shall apply particularly, but
not exclusively, to flooding, damage caused by Building equipment and apparatus,
water, snow, frost, steam, excessive heat or cold, broken glass, sewage, gas,
odors, excessive noise or vibration or the bursting or leaking of pipes,
plumbing fixtures or sprinkler devices. Without limiting the generality of the
foregoing, Tenant waives all claims and rights of recovery against Landlord, its
property manager and their respective agents and employees for any loss or
damage to any property of Tenant, which loss or damage is insured against, or
required to be insured against, by Tenant pursuant to Section 10 above, whether
or not such loss or damage is due to the fault or negligence of Landlord, its
property manager or their respective agents or employees, and regardless of the
amount of insurance proceeds collected or collectible under any insurance
policies in effect. The foregoing release and waivers do not apply to claims
caused by Landlord's wilful misconduct.
B. Tenant's Indemnity. Tenant agrees to indemnify, defend and hold
------------------
harmless Landlord, its property manager and their respective agents and
employees, from and against any and all claims, demands, actions, liabilities,
damages, costs and expenses (including reasonable attorneys' fees), for injuries
to any third parties and damage to or theft or misappropriation or loss of
property of third parties occurring in or about the Building and arising from
any breach or default on the part of Tenant in the performance of any covenant
or agreement on the part of Tenant to be performed under this Lease or due to
any other act or omission of Tenant, its subtenants, assignees, invitees,
employees, contractors and agents. Without limiting the foregoing, Tenant shall
indemnify, defend and hold Landlord harmless from any claims, liabilities,
damages, costs and expenses arising out of the use or storage of hazardous or
toxic materials in the Building by Tenant. If any such proceeding is filed
against Landlord or any such indemnified party, Tenant agrees to defend Landlord
or such party in such proceeding at Tenant's sole cost, if requested by
Landlord. Notwithstanding anything contained in this Section 11B to the
contrary, Tenant shall not be required to indemnify Landlord, its property
manager or their respective agents and employees from or in respect of any claim
or matter which results from the negligence or wilful misconduct of Landlord,
its property manager or their respective agents and employees, except to the
extent that such claim or matter is insured against, or required to be insured
against, by Tenant pursuant to Section 10 of this Lease (regardless of the
amount of insurance proceeds collected or collectible under any insurance
policies in effect).
C. Landlord's Waiver. Landlord releases Tenant and waives all claims
-----------------
and rights of recovery against Tenant and its agents and employees for any
damage or injury to person or property or loss of business sustained by
Landlord, which damage, injury or loss is insured against, or required to be
insured against, by Landlord pursuant to Section 10 above, whether or not such
loss or damage is due to the fault or negligence of Tenant or its agents or
employees, and regardless of
17
the amount of insurance proceeds collected or collectible under any insurance
policies in effect. The foregoing release and waiver do not apply to a claim
caused by Tenant's wilful misconduct.
D. Landlord's Indemnity. Landlord agrees to indemnify, defend and
--------------------
hold harmless Tenant and its agents and employees, from and against any and all
claims, demands, actions, liabilities, damages, costs and expenses (including
reasonable attorneys' fees), for injuries to any third parties and damage to or
theft or misappropriation or loss of property of third parties occurring in or
about the Building and arising from any breach or default on the part of
Landlord in the performance of any covenant or agreement on the part of Landlord
to be performed under this Lease or due to any other act or omission of Landlord
or its employees, contractors and agents. Without limiting the foregoing,
Landlord shall indemnify, defend and hold Tenant harmless from any claims,
liabilities, damages, costs and expenses arising out of the use or storage of
hazardous or toxic materials in the Building by Landlord. If any such proceeding
is filed against Tenant or any such indemnified party, Landlord agrees to defend
Tenant or such party in such proceeding at Landlord's sole cost, if requested by
Tenant. Notwithstanding anything contained in this Section 11D to the contrary,
Landlord shall not be required to indemnify Tenant or its agents and employees
from or in respect of any claim or matter which results from the negligence or
wilful misconduct of Tenant or its agents and employees, except to the extent
that such claim or matter is insured against, or required to be insured against,
by Landlord pursuant to Section 10 of this Lease (regardless of the amount of
insurance proceeds collected or collectible under any insurance policies in
effect).
12. FIRE AND CASUALTY. Upon a fire or other casualty affecting the
Building, Landlord, with commercially reasonable diligence and promptness, shall
restore the Building. Notwithstanding the foregoing, if (i) all or a substantial
part of the Premises or the Building is rendered untenantable by reason of fire
or other casualty or (ii) a fire or casualty occurs during the last 12 months of
the Term (taking into account any Extension Option [as hereinafter defined] that
has been exercised prior to date of the fire or casualty), Landlord may, at its
option, either restore the Premises and the Building, or terminate this Lease
effective as of the date of such fire or other casualty. Landlord agrees to give
Tenant written notice within 60 days after the occurrence of any such fire or
other casualty designating whether Landlord elects to so restore or terminate
this Lease. If Landlord elects to terminate this Lease, Rent shall be paid
through and apportioned as of the date of such fire or other casualty. If
Landlord elects to restore, Landlord's obligation to restore the Premises shall
be limited to restoring those improvements in the Premises existing as of the
date of such fire or other casualty which were made at Landlord's expense and
shall exclude any furniture, equipment, fixtures, additions, alterations or
improvements in or to the Premises which were made at Tenant's expense. Provided
Landlord has carried the property insurance required to be carried by Landlord
pursuant to Section 10B, Landlord shall not be obligated to restore the Premises
if Landlord does not receive insurance proceeds in an amount sufficient to pay
all of the costs of such restoration (in which case if Landlord elects not to
restore, this Lease shall terminate as of the date of the fire or casualty). If
Landlord elects to restore, Rent shall xxxxx for that part of the Premises which
is untenantable on a per diem basis from the date of such fire or other casualty
until Landlord has substantially completed its repair and restoration work and
obtained a certificate of occupancy relating to its work (if required), provided
that Tenant does not occupy such part of the Premises
18
during said period. Notwithstanding anything contained in this Section 12 to the
contrary, within 60 days after the date of any fire or other casualty which
renders all or a substantial part of the Premises or the Building untenantable,
Landlord shall provide to Tenant in writing Landlord's good faith estimate of
the time required by Landlord to restore the Premises. If Landlord's good faith
estimate of the time required to restore the Premises exceeds 270 days from the
date of such fire or casualty, then Tenant shall have the right, exercisable by
written notice to Landlord within 15 days after delivery of Landlord's good
faith estimate, to terminate this Lease as of the date of such fire or other
casualty. Notwithstanding the foregoing, Tenant shall have no right to terminate
this Lease if the fire or other casualty was caused, in whole or in part, by the
negligence or intentional misconduct of Tenant or Tenant's agents, employees,
contractors, invitees, subtenants or assigns.
13. CONDEMNATION. If the Premises or the Building is rendered
untenantable by reason of a condemnation (or by a deed given in lieu thereof),
then either party may terminate this Lease by giving written notice of
termination to the other party within 30 days after such condemnation, in which
event this Lease shall terminate effective as of the date which is the day
immediately preceding the date of such condemnation. If this Lease so
terminates, Rent shall be paid through and apportioned as of such termination
date. If such condemnation does not render the Premises or the Building
untenantable, this Lease shall continue in effect and Landlord shall promptly
restore the portion not condemned to the condition existing prior to the
condemnation. In such event, however, Landlord shall not be required to expend
an amount in excess of the proceeds received by Landlord from the condemning
authority (in which case if Landlord elects not to restore, this Lease shall
terminate as of the date of the condemnation). Landlord reserves all rights to
compensation for any condemnation. Tenant hereby assigns to Landlord any right
Tenant may have to such compensation, and Tenant shall make no claim against
Landlord or the condemning authority for compensation for termination of
Tenant's leasehold interest under this Lease or interference with Tenant's
business, provided, however, Tenant may pursue a separate claim against the
condemning authority for Tenant's moving costs and the book value of any
leasehold improvements to the Premises paid for by Tenant so long as such claim
will not adversely affect or diminish any award or compensation otherwise
recoverable by Landlord.
14. ASSIGNMENT AND SUBLETTING.
A. Landlord's Consent. Tenant shall not, without the prior written
------------------
consent of Landlord (which consent, with respect to a proposed assignment or
subletting, shall not be unreasonably withheld or conditioned as provided in
Section 14B): (i) assign, convey, mortgage or otherwise transfer this Lease or
any interest hereunder, or sublease the Premises, or any part thereof, whether
voluntarily or by operation of law; or (ii) permit the use of the Premises by
any person other than Tenant and its employees. Any such transfer, sublease or
use described in the preceding sentence (a "Transfer") occurring without the
prior written consent of Landlord shall be void and of no effect. Landlord's
consent to any Transfer shall not constitute a waiver of Landlord's right to
withhold its consent to any future Transfer. Landlord's consent to any Transfer
or acceptance of rent from any party other than Tenant shall not release Tenant
from any covenant or obligation under this Lease. Landlord may require as a
condition to its consent to any assignment of this Lease that the assignee
19
execute an instrument in which such assignee assumes the obligations of Tenant
hereunder. In no case may Tenant assign this Lease to more than one person or
entity (provided the foregoing limitation shall not limit an assignment to a
single partnership or joint venture). For the purposes of this paragraph, the
transfer (whether direct or indirect) of all or a majority of the capital stock
in a corporate Tenant (other than the shares of the capital stock of a corporate
Tenant whose stock is publicly traded or the sale of stock in an "initial public
offering") or the merger, consolidation or reorganization of such Tenant and the
transfer of all or any general partnership interest in any partnership Tenant
shall be considered a Transfer if, after the conclusion of such transaction,
Tenant has a net worth of less than $100 million. If Tenant is a general or
limited partnership (or is comprised of two or more persons or entities), the
change or conversion of Tenant to (i) a limited liability company, (ii) a
limited liability partnership or (iii) any other entity which possesses the
characteristics of limited liability shall be prohibited unless the prior
written consent of Landlord is obtained, which consent may be withheld in
Landlord's sole discretion. Any such change or conversion without Landlord's
consent shall not release the individuals or entities comprising Tenant from
personal liability hereunder. Notwithstanding anything contained in this Section
14A to the contrary, provided Tenant is not then in Default under this Lease,
Tenant shall have the right to assign this Lease or sublease the Premises, or
any part thereof, to an "Affiliate" (as defined below) without the prior written
consent of Landlord, but only upon prior written notice to Landlord and subject
to all of the other provisions of this Lease, specifically including, without
limitation, the continuation of liability of Tenant under this Lease. Upon an
assignment of this Lease to an Affiliate, the Affiliate shall assume the
obligations of the tenant under this Lease from and after the effective date of
such assignment pursuant to a written assumption agreement executed and
delivered to Landlord promptly after the effective date of such assignment.
"Affiliate" shall mean any corporation or other entity controlling, controlled
by or under the common control with Tenant or the surviving entity formed as a
result of a merger or consolidation with Tenant. The word "control," as used
herein, shall mean the power to direct or cause the direction of the management
and policies of the controlled entity (i) through ownership of more than 50% of
the voting securities in such controlled entity or (ii) by virtue of voting
trusts or other contractual arrangements. Nothing contained in this Section 14A
shall permit an assignment of this Lease or the subleasing of the Premises to
any Affiliate that is disreputable, non-creditworthy or otherwise not in keeping
with the nature or class of tenants in a Class A office building. Landlord
hereby acknowledges that, as of the date of Landlord's execution of this Lease,
Zurich Xxxxxx Life Insurance Company is an Affiliate of Tenant that is also, for
purposes of this Section 14A, reputable, creditworthy and in keeping with the
nature and class of tenants in a Class A office building.
B. Standards for Consent. If Tenant desires the consent of Landlord to
---------------------
a Transfer, Tenant shall submit to Landlord, at least 20 days prior to the
proposed effective date of the Transfer, a written notice which includes such
information as Landlord may reasonably require about the proposed Transfer and
the transferee. If Landlord does not exercise its recapture right pursuant to
Section 14C, Landlord shall not unreasonably withhold its consent to any
assignment or sublease. Landlord shall not be deemed to have unreasonably
withheld its consent if, in the judgment of Landlord: (i) the transferee is of a
character or engaged in a business which is not in keeping with the standards or
criteria used by Landlord in leasing the Building; (ii) the financial condition
of the
20
transferee is such that it is reasonably likely that it will not be able to
perform its obligations in connection with this Lease; (iii) the purpose for
which the transferee intends to use the Premises or portion thereof or the
identity of the transferee is in violation of the terms of this Lease or the
lease of any other tenant in the Building; (iv) the transferee is a tenant of or
negotiating for space in the Building and Landlord has comparable space in the
Building available to lease to such party; or (v) any other basis that Landlord
reasonably deems appropriate. If Landlord consents to any Transfer (other than a
Transfer to an Affiliate), Tenant shall pay to Landlord one-half of all rent and
other consideration received by Tenant in excess of the Rent paid by Tenant
hereunder for the portion of the Premises so transferred (after deducting
therefrom the amount of all reasonable brokerage commissions, advertising
expenses, rent abatements, space planning fees, legal fees, cash allowances and
tenant improvement costs actually paid or incurred by Tenant in connection with
such Transfer). Such rent shall be paid as and when received by Tenant. In
addition, Tenant shall pay to Landlord any reasonable attorneys' fees and
reasonable and customary expenses incurred by Landlord in connection with any
proposed Transfer, whether or not Landlord consents to such Transfer (such legal
fees shall not exceed $1,000 for a typical transaction using customary forms).
If Landlord wrongfully withholds its consent to any Transfer, Tenant's sole and
exclusive remedy therefor shall be to seek specific performance of Landlord's
obligation to consent to such Transfer.
C. Recapture. Landlord shall have the right to terminate this Lease as
---------
to that portion of the Premises covered by an assignment (other than an
assignment to an Affiliate). Landlord may exercise such right to terminate by
giving notice to Tenant at any time within 20 days after the date on which
Tenant has furnished to Landlord all of the items required under Section 14B
above. If Landlord exercises such right to terminate, Landlord shall be entitled
to recover possession of the entire Premises on the later of (i) the effective
date of the proposed assignment, or (ii) 60 days after the date of Landlord's
notice of termination. In the event Landlord exercises such right to terminate,
Landlord shall have the right to enter into a lease with the proposed assignee
without incurring any liability to Tenant on account thereof. To avoid Landlord
having the right to recapture after Tenant has exerted time and expense
marketing the Premises, Tenant may notify Landlord in advance of Tenant's desire
to assign this Lease. Such notice shall specify the desired effective date
(which shall not be less than 60 days after the delivery of Tenant's notice).
Landlord shall have the right to terminate this Lease as to the entire Premises
on the terms set forth above in this Section 14C by giving notice to Tenant
within 20 days after receipt of Tenant's notice. If Tenant so notifies Landlord
in advance of a desired assignment and Landlord declines to exercise its
recapture right, Landlord may not terminate this Lease on account of any
proposed assignment by Tenant within the 180 day period after the giving of
Tenant's initial notice. The foregoing shall not limit or impair Tenant's
obligation to obtain Landlord' consent to any such assignment.
15. SURRENDER. Upon termination of the Term or Tenant's right to
possession of the Premises, Tenant shall return the Premises to Landlord in good
order and condition, ordinary wear and damage by fire or other casualty
excepted. If Landlord requires Tenant to remove any alterations pursuant to
Section 9, then such removal shall be done in a good and workmanlike manner; and
upon such removal Tenant shall restore the Premises to its condition prior to
the installation of such alterations. With respect to the initial "Work"
described in Exhibit C, Tenant shall only be required to remove raised computer
flooring, supplemental HVAC equipment, cables and wiring [excluding
21
cables and wiring within the Premises] and items specified by Landlord in
writing when it approves the Construction Documents. Tenant shall be required to
close any floor openings created for Tenant, excluding floor openings for
internal stairways. Tenant may not remove the generator described in Section 3,
which shall remain Landlord's property. If Tenant does not remove such
alterations after request to do so by Landlord, Landlord may remove the same and
restore the Premises; and Tenant shall pay the cost of such removal and
restoration to Landlord upon demand. Tenant shall also remove its furniture,
equipment, trade fixtures and all other items of personal property from the
Premises prior to the termination of the Term or Tenant's right to possession of
the Premises. If Tenant does not remove such items, Tenant shall be conclusively
presumed to have conveyed the same to Landlord without further payment or credit
by Landlord to Tenant; or at Landlord's sole option such items shall be deemed
abandoned, in which event Landlord may cause such items to be removed and
disposed of at Tenant's expense, without notice to Tenant and without obligation
to compensate Tenant.
16. DEFAULTS AND REMEDIES.
A. Tenant's Default. The occurrence of any of the following shall
----------------
constitute a default (a "Default") by Tenant under this Lease: (i) Tenant fails
to pay any Rent when due (and, only with respect to the first two of such
defaults within any 12-month period, such default shall continue for five
business days after written notice to Tenant); (ii) Tenant fails to perform any
other provision of this Lease and such failure is not cured within 30 days (or
immediately if the failure involves a hazardous condition) after written notice
from Landlord; (iii) the leasehold interest of Tenant is levied upon or attached
under process of law; (iv) Tenant or any guarantor of this Lease dies or
dissolves; or (v) any voluntary or involuntary proceedings are filed by or
against Tenant or any guarantor of this Lease under any bankruptcy, insolvency
or similar laws and, in the case of any involuntary proceedings, are not
dismissed within 30 days after filing.
B. Right of Re-Entry. Upon the occurrence of a Default, Landlord may
-----------------
elect to terminate this Lease, or, without terminating this Lease, terminate
Tenant's right to possession of the Premises. Upon any such termination, Tenant
shall immediately surrender and vacate the Premises and deliver possession
thereof to Landlord. Tenant grants to Landlord the right to lawfully enter and
repossess the Premises and to lawfully expel Tenant and any others who may be
occupying the Premises and to lawfully remove any and all property therefrom,
without being deemed in any manner guilty of trespass and without relinquishing
Landlord's rights to Rent or any other right given to Landlord hereunder or by
operation of law.
C. Reletting. If Landlord terminates Tenant's right to possession of
---------
the Premises without terminating this Lease, Landlord may relet the Premises or
any part thereof. In such case, Landlord shall use reasonable efforts to relet
the Premises on such terms as Landlord shall reasonably deem appropriate;
provided, however, Landlord may first lease Landlord's other available space and
shall not be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. Tenant shall reimburse
Landlord for the reasonable costs and expenses of reletting the Premises
including, but not limited to, all brokerage, advertising, legal, alteration,
redecorating, repair and other reasonable and customary expenses incurred to
secure a new tenant
22
for the Premises. In addition, if the consideration collected by Landlord upon
any such reletting, after payment of the expenses of reletting the Premises
which have not been reimbursed by Tenant, is insufficient to pay monthly the
full amount of the Rent, Tenant shall pay to Landlord the amount of each monthly
deficiency as it becomes due. If such consideration is greater than the amount
necessary to pay the full amount of the Rent, the full amount of such excess
shall be retained by Landlord and shall in no event be payable to Tenant.
D. Termination of Lease. If Landlord terminates this Lease, Landlord
--------------------
may recover from Tenant and Tenant shall pay to Landlord, on demand, as and for
final damages, an accelerated lump sum amount equal to the amount by which the
aggregate amount of Rent owing from the date of such termination through the
Expiration Date plus the reasonably estimated expenses of reletting the
Premises, exceeds the fair rental value of the Premises for the same period
(after deducting from such fair rental value the reasonably estimated time
needed to relet the Premises and the amount of concessions which would normally
be given to a new tenant), both discounted to present value at the rate of 7%
per annum.
E. Other Remedies. Landlord may but shall not be obligated to perform
--------------
any obligation of Tenant under this Lease; and, if Landlord so elects, all costs
and expenses paid by Landlord in performing such obligation, together with
interest at the Default Rate, shall be reimbursed by Tenant to Landlord on
demand. Any and all remedies set forth in this Lease: (i) shall be in addition
to any and all other remedies Landlord may have at law or in equity, (ii) shall
be cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
F. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee
----------
shall not have the right to assume or assign this Lease unless the trustee
complies with all requirements of the United States Bankruptcy Code; and
Landlord expressly reserves all of its rights, claims, and remedies thereunder.
G. Waiver of Trial by Jury. Landlord and Tenant waive trial by jury
-----------------------
in the event of any action, proceeding or counterclaim brought by either
Landlord or Tenant against the other in connection with this Lease.
H. Venue. If either Landlord or Tenant desires to bring an action
-----
against the other in connection with this Lease, such action shall be brought in
the federal or state courts located in Chicago, Illinois. Landlord and Tenant
consent to the jurisdiction of such courts and waive any right to have such
action transferred from such courts on the grounds of improper venue or
inconvenient forum.
I. Default by Landlord. If Landlord shall fail to observe or perform
-------------------
any of the covenants or provisions of this Lease to be observed or performed by
Landlord, and such failure shall continue for a period of 30 days after written
notice thereof from Tenant to Landlord, then Landlord shall be in default of
this Lease; provided, however, if the nature of Landlord's failure is such that
more than
23
30 days are reasonably required for its cure, then Landlord shall not be deemed
to be in default if Landlord shall diligently commence such cure within said
30-day period and thereafter diligently prosecute such cure to completion.
Except as otherwise expressly stated to the contrary in this Lease, in the event
of a default of this Lease by Landlord that continues beyond the foregoing
notice and cure period, Tenant shall have the right to pursue any of its
remedies which may be available at law or in equity.
J. Tenant's Limited Right of Self-Help and Limited Right of Set-Off.
----------------------------------------------------------------
(1) If Landlord fails to make any repair to the Premises or to
the major systems serving the Premises that Landlord is required to
make pursuant to the provisions of this Lease, and such failure
continues for a period of 15 days after Landlord receives written
notice thereof from Tenant (it being understood and agreed that such
15-day period may be extended if it is not reasonably possible for
Landlord to complete such repair within such 15-day period and Landlord
commences and diligently pursues the performance of such repair within
such 15-day period and completes the same within a reasonable period of
time) and, as a result of such failure, any portion of the Premises
which (i) consists of at least 10,000 rentable square feet or (ii)
provides material services necessary for the operation of Tenant's
business, is rendered untenantable, then at any time after the end of
such 15-day period (as the same may be extended as provided above) and
prior to the time that Landlord commences the repair work to cure such
failure, Tenant shall be entitled to make such repair that Landlord has
failed to make. Tenant shall undertake to make such repair that
Landlord has failed to make in the most cost-efficient manner
practicable.
(2) If Tenant exercises its right to make any such repair, and
Tenant is not otherwise in breach or default under this Lease, then
Landlord shall reimburse Tenant for the actual, reasonable, necessary
cost of such repair within 30 days after Landlord receives a written
request for such reimbursement accompanied by invoices, paid receipts
and full and final waivers of lien evidencing the lien-free performance
of such work at the cost specified in such invoices.
(3) If Tenant exercises its right to make any such repair as
provided above and Landlord fails to reimburse Tenant for the actual,
reasonable, necessary costs of such repair within the 30-day period
described above, and Tenant is not otherwise in breach or default
under this Lease, then Tenant shall have the right to deduct from Base
Rent thereafter first becoming due under this Lease the amount which
Tenant is entitled to receive as reimbursement (not to exceed in any
month an amount determined by Landlord). The exercise of such right of
set-off by Tenant shall be communicated in writing to Landlord and its
mortgagee(s) and/or ground lessor(s) not later than five days after
the exercise of such right.
17. HOLDING OVER. If Tenant retains possession of the Premises after
the expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall pay Rent during such holding over at 150% of the rate in
effect immediately preceding such holding over
24
computed on a monthly basis for each month or partial month that Tenant remains
in possession. If such holding over exceeds 60 days, Tenant shall also pay,
indemnify and defend Landlord from and against all claims and damages,
consequential as well as direct, sustained by reason of Tenant's holding over.
The provisions of this Section do not waive Landlord's right of re-entry or
right to regain possession by actions at law or in equity or any other rights
hereunder, and any receipt of payment by Landlord shall not be deemed a consent
by Landlord to Tenant's remaining in possession or be construed as creating or
renewing any lease or right of tenancy between Landlord and Tenant.
18. INTENTIONALLY DELETED.
19. INTENTIONALLY DELETED.
20. ESTOPPEL CERTIFICATES. Tenant agrees that, from time to time upon
not less than 15 days' prior written request by Landlord, Tenant shall execute
and deliver to Landlord a written certificate certifying: (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications, a
description of such modifications and that this Lease as modified is in full
force and effect); (ii) the dates to which Rent has been paid; (iii) that Tenant
is in possession of the Premises, if that is the case; (iv) that Landlord is not
in default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); (vi) that
the Premises have been completed in accordance with the terms and provisions of
this Lease or the Work Letter and Tenant has accepted the Premises and the
condition thereof and of all improvements thereto and has no claims against
Landlord or any other party with respect thereto (if such is the case); and
(vii) such additional matters as may be reasonably requested by Landlord, it
being agreed that such certificate may be relied upon by any prospective
purchaser, mortgagee or other person having or acquiring an interest in the
Building. If Tenant fails to execute and deliver any such certificate within 15
days after request and such failure continues for five days after written
notice, such failure shall, at Landlord's option, constitute a Default hereunder
(without the necessity for Landlord to deliver any additional notice as
otherwise provided in Section 16A).
21. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (a) any present or future ground, underlying or
operating lease of the Building, and all amendments, renewals and modifications
to any such lease, and (b) the lien of any present or future mortgage or deed of
trust encumbering fee title to the Building and/or the leasehold estate under
any such lease. If any such mortgage or deed of trust be foreclosed, or if any
such lease be terminated, upon request of the mortgagee, beneficiary or lessor,
as the case may be, Tenant will attorn to the purchaser at the foreclosure sale
or to the lessor under such lease, as the case may be. The foregoing provisions
are declared to be self-operative and no further instruments shall be reasonably
required to effect such subordination and/or attornment; provided, however, that
Tenant agrees upon request by any such mortgagee, beneficiary, lessor or
purchaser at foreclosure, as the case may be, to execute such subordination
and/or attornment instruments as may be reasonably required by such person to
confirm such subordination and/or attornment on the form customarily used by
such party (provided such form does not increase Tenant's obligations or
adversely affect Tenant's rights hereunder).
25
Notwithstanding the foregoing to the contrary, any such mortgagee, beneficiary
or lessor may elect to give the rights and interests of Tenant under this Lease
(excluding rights in and to insurance proceeds and condemnation awards) priority
over the lien of its mortgage or deed of trust or the estate of its lease, as
the case may be. In the event of such election and upon the mortgagee,
beneficiary or lessor notifying Tenant of such election, the rights and
interests of Tenant shall be deemed superior to and to have priority over the
lien of said mortgage or deed of trust or the estate of such lease, as the case
may be, whether this Lease is dated prior to or subsequent to the date of such
mortgage, deed of trust or lease. In such event, Tenant shall execute and
deliver whatever instruments may be reasonably required by such mortgagee,
beneficiary or lessor to confirm such superiority on the form customarily used
by such party (provided such form does not increase Tenant's obligations or
adversely affect Tenant's rights hereunder). If Tenant fails to execute any
instrument required to be executed by Tenant under this Section 21 within 10
days after request and such failure continues for five days after written
notice, such failure shall, at Landlord's option, constitute a Default hereunder
(without the necessity for Landlord to deliver any additional notice as
otherwise provided in Section 16A). Notwithstanding anything in this Section 21
to the contrary, Landlord shall procure a non-disturbance agreement from any
present holder of a ground, underlying or operating lease or mortgage or deed of
trust on the form attached hereto as Exhibit G. Furthermore, Tenant's agreement
under this Section to subordinate this Lease to the interest of any holder of a
ground, underlying or operating lease or mortgage or deed of trust executed or
delivered after the execution and delivery of this Lease is subject to and
conditioned on Landlord causing such party to deliver to Tenant a
non-disturbance and attornment agreement on such party's customary form.
22. QUIET ENJOYMENT. As long as no Default exists, Tenant shall
peacefully and quietly have and enjoy the Premises for the Term, free from
interference by Landlord, subject, however, to the provisions of this Lease. The
loss or reduction of Tenant's light, air or view will not be deemed a
disturbance of Tenant's occupancy of the Premises nor will it affect Tenant's
obligations under this Lease or create any liability of Landlord to Tenant.
23. BROKER. Tenant represents to Landlord that Tenant has dealt only
with the brokers set forth in Item 7 of the Schedule (collectively, the
"Brokers") in connection with this Lease and that, insofar as Tenant knows, no
other broker negotiated this Lease or is entitled to any commission in
connection herewith. Tenant agrees to indemnify, defend and hold Landlord, its
property manager and their respective employees harmless from and against all
claims, demands, actions, liabilities, damages, costs and expenses (including
reasonable attorneys' fees) arising from either (i) a claim for a fee or
commission made by any broker, other than the Brokers, claiming to have acted by
or on behalf of Tenant in connection with this Lease, or (ii) a claim of, or
right to, lien under the statutes of Illinois relating to real estate broker
liens with respect to any such broker retained by Tenant. Landlord agrees to pay
the Brokers a commission in accordance with the separate agreement between
Landlord and the Brokers. Landlord represents to Tenant that Landlord has dealt
only with the Brokers in connection with this Lease and that, insofar as
Landlord knows, no other broker negotiated this Lease or is entitled to any
commission in connection herewith. Landlord agrees to indemnify, defend and hold
Tenant harmless from and against all claims, demands, actions, liabilities,
damages, costs and expenses (including, reasonable attorneys' fees) arising from
a claim
26
for a fee or commission made by any broker, other than the Brokers, claiming to
have acted by or on behalf of Landlord in connection with this Lease.
24. NOTICES. All notices and demands to be given by one party to the
other party under this Lease shall be given in writing (except as otherwise
expressly provided herein), mailed or delivered to Landlord or Tenant, as the
case may be, at the following addresses:
If to Landlord: Windy Point of Schaumburg LLC
c/x Xxxxxxx Realty Corp.
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President
with copies to: Citigroup Investments
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President
and
Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chtd.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
If to Tenant: Zurich American Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Zurich U.S. Real Estate
or at such other address(es) as either party may hereafter designate. Notices
shall be delivered by hand or by United States certified or registered mail,
postage prepaid, return receipt requested, or by a nationally recognized
overnight air courier service. Notices shall be considered to have been given
upon the earlier to occur of actual receipt, three business days after posting
in the United States mail or the first business day after delivery to the
courier service.
25. MISCELLANEOUS.
A. Successors and Assigns. Subject to Section 14 of this Lease, each
----------------------
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors and
permitted assigns; and all references herein to Landlord and Tenant shall be
deemed to include all such parties.
27
B. Entire Agreement. This Lease, and the riders and exhibits, if any,
----------------
attached hereto which are hereby made a part of this Lease, represent the
complete agreement between Landlord and Tenant; and Landlord has made no
representations or warranties except as expressly set forth in this Lease. No
modification or amendment of or waiver under this Lease shall be binding upon
Landlord or Tenant unless in writing signed by Landlord and Tenant.
C. Time of Essence. Time is of the essence of this Lease and each and
---------------
all of its provisions, including all exhibits.
D. Execution and Delivery. Submission of this instrument for
----------------------
examination or signature by Tenant does not constitute a reservation of space or
an option for lease, and it is not effective until execution and delivery by
both Landlord and Tenant.
E. Severability. The invalidity or unenforceability of any provision
------------
of this Lease shall not affect or impair any other provisions.
F. Governing Law. This Lease shall be governed by and construed in
--------------
accordance with the laws of the State in which the Premises are located.
G. Attorneys' Fees. The nonprevailing party shall pay the prevailing
---------------
party all costs and expenses, including reasonable attorneys' fees, incurred by
such prevailing party in successfully enforcing the nonprevailing party's
obligations or successfully defending the prevailing party's rights under this
Lease against the nonprevailing party. Each party hereto shall pay the costs and
expenses, including reasonable attorneys' fees, incurred by the other party as a
result of any litigation in which such first party causes such second party,
without such second party's fault to become involved as a result of this Lease.
X. Xxxxx in Possession; Contingencies. If Landlord fails to commence
----------------------------------
or complete the construction of the Building or the Work within the schedules
set forth herein or is otherwise delayed in delivery of possession of the
Premises, notwithstanding anything in this Lease or the Work Letter Agreement to
the contrary, the following provisions shall govern:
(i) If (a) Landlord has not commenced the excavation of the
site of the Building in preparation for the construction of the
Building, (b) Landlord has not obtained a foundation permit from the
Village of Schaumburg for the construction of the foundation of the
Building or (c) Landlord has not obtained a loan commitment for the
mortgage financing of the costs of the construction of the Building or
otherwise made arrangements for the payment of the costs of the
construction of the Building (such as the agreement of the one or more
of the members of Landlord to fund such construction [provided the
foregoing shall not be deemed to be an agreement, covenant,
representation or warranty that one or more of the members of Landlord
will fund such construction]), by October 1, 2000, for any reason other
than (a) Tenant Delays or (b) due to force majeure (not exceeding 20
days of force majeure, in the aggregate), then by written notice given
not later than October 10, 2000,
28
Tenant may elect to terminate this Lease, in which case neither party
shall have any further obligations or liabilities under this Lease.
(ii) If the base Building is not sufficiently completed to
allow "material stocking" (as hereinafter described) by August 1, 2001,
for any reason other than (a) Tenant Delays or (b) due to force majeure
(not exceeding 20 days of force majeure, in the aggregate), then by
written notice given not later than August 10, 2001, Tenant may elect
to terminate this Lease, in which case neither party shall have any
further obligations or liabilities under this Lease. The base Building
shall be considered sufficiently completed to allow material stocking
when (a) exterior wall systems and glazing are substantially completed,
except at material hoist and man hoist bays, and (b) floors are broom
clean and in a condition to allow for tenant construction materials,
such as drywall, studs, VAV boxes, light fixtures, to be stored and
ready for installation.
(iii) If Landlord is unable to deliver possession of the
Premises to Tenant by the date stated in Item 5 of the Schedule with
the Work substantially completed, the date stated in Item 5 of the
Schedule shall be deferred until Landlord can deliver possession to
Tenant with the Work substantially completed and the date stated in
item 6 of the Schedule shall be deferred for an equal number of days.
Notwithstanding the foregoing, the foregoing dates shall not be
deferred if delivery of possession of the Premises with the Work
substantially completed is delayed by a Tenant Delay (as defined in the
Work Letter Agreement).
(iv) If Landlord has not delivered possession of the Premises
to Tenant with the Work substantially completed by the date stated in
Item 5 of the Schedule for any reason other than (a) Tenant Delays or
(b) due to force majeure (as described in Section 25J) (not exceeding
20 days of force majeure, in the aggregate), Tenant shall be entitled
to abatement of Base Rent and Adjustment Rent first coming due under
this Lease in an amount equal to the product of (i) the daily amount of
Base Rent and Adjustment Rent in effect during the first month of the
Term for the Premises multiplied by (ii) the number of days in the
period commencing on the date stated in Item 5 of the Schedule and
expiring on the date immediately preceding the date Landlord delivers
possession of the Premises to Tenant with the Work substantially
completed (excluding Tenant Delays and delays due to force majeure [not
exceeding 20 days of force majeure, in the aggregate]).
(v) If Landlord has not delivered possession of the Premises
to Tenant with the Work substantially completed by November 1, 2001,
for any reason other than (a) Tenant Delays or (b) due to force majeure
(as described in Section 25J) (not exceeding 20 days of force majeure,
in the aggregate), Tenant shall be entitled to abatement of Base Rent
and Adjustment Rent first coming due under this Lease in an amount
equal to the product of (i) twice the daily amount of Base Rent and
Adjustment Rent in effect during the first month of the Term for the
Premises multiplied by (ii) the number of days in the period commencing
on November 1, 2001, and expiring on the date immediately preceding the
date Landlord delivers possession of the Premises to Tenant with the
Work substantially completed
29
(excluding Tenant Delays and delays due to force majeure [not exceeding
20 days of force majeure, in the aggregate]).
The foregoing termination rights, deferral of the Term and abatement rights
shall be Tenant's sole and exclusive remedies upon a failure or delay in the
construction of the Building or the Work or delivery of possession.
If Landlord has been unable to satisfy itself that it will obtain all
approvals, permits, easements or other property rights (such as the right to
park automobiles on the right of way owned by Northern Illinois Gas Company
depicted on Exhibit H) necessary for Landlord to be able to deliver possession
of the Premises to Tenant by the date stated in Item 5 of the Schedule in
compliance with all of the requirements of this Lease, for any reason other than
Landlord's failure to obtain mortgage financing or another source of funds to
finance the construction of the Building, then Landlord shall provide Tenant
with written notice not later than July 1, 2000 (which notice shall specify the
approvals, permits, easements or property rights that Landlord has been unable
to obtain). During the period between the delivery of Landlord's notice and
August 15, 2000, Tenant may, in cooperation with Landlord, seek to obtain in
Landlord's name the specified approvals, easements, permits or property rights
(provided that Tenant acknowledges and agrees that Landlord shall not be
obligated to incur greater costs or expenses, to grant greater concessions,
rights or encumbrances or to otherwise provide greater or different
consideration, than Landlord initially intended to incur, grant or provide in
obtaining such specified approvals, permits, easements or property rights). If,
despite Tenant's assistance, by August 15, 2000, Landlord has not obtained the
specified approvals, permits, easements or property rights to satisfy itself
that it will be able to deliver possession of the Premises to Tenant by the date
stated in Item 5 of the Schedule in compliance with all of the requirements of
this Lease, then Landlord shall have the right to terminate this Lease by
written notice given not later than August 25, 2000, in which case neither party
shall have any further obligations or liabilities under this Lease.
I. Joint and Several Liability. If Tenant is comprised of more than
---------------------------
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
J. Force Majeure. Landlord shall not be in default hereunder and
-------------
Tenant shall not be excused from performing any of its obligations hereunder if
Landlord is prevented from performing any of its obligations hereunder due to
any accident, breakage, strike, shortage of materials (unless such materials can
be obtained from other suppliers at a reasonable and competitive price, under
reasonable and customary terms and within a reasonable and customary period of
time), acts of God or other causes beyond Landlord's reasonable control. The
foregoing shall not extend the time periods set forth in Section 25H except as
expressly set forth therein.
K. Captions. The headings and titles in this Lease are for
--------
convenience only and shall have no effect upon the construction or
interpretation of this Lease.
L. No Waiver. No receipt of money by Landlord from Tenant after
---------
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment
30
for possession of the Premises shall renew, reinstate, continue or extend the
Term or affect any such notice or suit. No waiver of any default of Landlord or
Tenant shall be implied from any omission by Tenant or Landlord to take any
action on account of such default if such default persists or be repeated, and
no express waiver shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent therein stated.
M. No Recording. Tenant shall not record this Lease or a memorandum
------------
of this Lease in any official records.
N. Limitation of Liability. Any liability of Landlord under this
-----------------------
Lease shall be limited solely to its equity interest in the Building, and in no
event shall any personal liability be asserted against Landlord in connection
with this Lease nor shall any recourse be had to any other property or assets of
Landlord. The obligations of Tenant under this Lease do not constitute personal
obligations of the individual officers and employees of Tenant.
O. Counterparts; Telecopied Signatures. This Lease may be executed
-----------------------------------
in counterparts which, when taken together, shall be deemed to be a single
instrument. Signatures of the parties may be delivered by telecopier and such
delivery shall have the same effect as if originally executed documents were
exchanged in person.
26. PARKING.
A. Parking Areas. Attached hereto as Exhibit H is a site plan
-------------
showing the planned parking areas serving the Complex. For so long as this Lease
is in full force and effect and Tenant is not in Default hereunder, Tenant may
use the available non-reserved parking spaces in such parking lots serving the
Complex free of charge, on a first come, first-served basis with the other
tenants and occupants of the Complex and their guests and invitees. Tenant's use
of all parking spaces is subject to all applicable codes, ordinances, laws,
regulations and statutes and reasonable rules and regulations promulgated from
time to time by Landlord, as well as the terms set forth in the recorded
Declaration of Covenants, Conditions, Restrictions, Reciprocal Rights and
Easements encompassing the Complex (as amended from time to time, the
"Declaration"). Furthermore, if any governmental authority, agency or department
requires the use of any parking areas serving the Complex, Tenant shall no
longer have the right to use such areas and Landlord shall have no liability to
Tenant (nor shall Rent xxxxx or be reduced) on account of such reduction in
available parking areas (provided Landlord shall, within a reasonable period
after such areas are no longer available, cause the parking areas serving the
Complex to have a number of parking spaces equal to at least 90% of the parking
spaces depicted on Exhibit H). Landlord may designate certain parking areas as
"reserved" and Tenant shall not allow its employees or invitees to use such
reserved spaces (provided that Landlord shall not designate more than five
additional reserved parking spaces for other specific tenants in the parking
lots adjacent to the Phase I Building [i.e., in addition to the parking spaces
that are already designated as "reserved"] or more than ten reserved parking
spaces for other specific tenants in the parking lots or parking deck, if any,
adjacent to the Building [to be increased to 20 reserved parking spaces at any
time the Premises consists of less than 225,000 rentable square feet]). Tenant
shall cooperate with Landlord in any reasonable system Landlord may establish or
participate
31
in to monitor parking in the Complex, including, without limitation, a system
requiring parkers to display special decals or passes. Tenant further
acknowledges that the owners of parking areas serving the Complex may
reconfigure, relocate or restripe the parking areas and that, from time to time,
parking areas may be closed for construction activities or maintenance or
repairs. Landlord shall promptly complete all construction activities,
maintenance and repairs undertaken by Landlord upon parking areas owned by
Landlord.
B. Initial Parking Deck. In addition to the base Building work
--------------------
described in the Work Letter Agreement, Landlord shall construct a parking deck
serving the Building with at least 250 spaces for Tenant's exclusive use. The
"Tenant's Special Parking Spaces" shall mean the 250 parking spaces in such
parking deck reserved for Tenant's exclusive use. If the parking deck
constructed by Landlord contains more than 250 spaces, the excess spaces shall
not be deemed to be Tenant's Special Parking Spaces.
C. Construction of Additional Parking Areas. Landlord agrees that if
----------------------------------------
Tenant notifies Landlord in writing prior to the first anniversary of the
Commencement Date that Tenant desires additional parking spaces (and the number
thereof), then Landlord shall design an addition to the existing parking deck to
make exclusively available to Tenant the approximate number of spaces desired by
Tenant (also taking into account any spaces lost due to the addition). It shall
be a condition of Landlord's obligation to construct such addition to the
existing parking deck that Landlord is able to obtain all required approvals and
permits from the Village of Schaumburg. The design of the addition to the
existing parking deck shall be determined by Landlord in its sole discretion and
shall take into consideration the requirements and recommendations of the
Village of Schaumburg. Within 60 days after Tenant has notified Landlord of
Tenant's desire for additional parking spaces, and provided the Village of
Schaumburg has approved Landlord's design, Landlord shall notify Tenant of
Landlord's reasonable estimate of the costs of constructing the addition to the
existing parking deck . Tenant shall approve or disapprove such estimate in
writing within 30 days after receipt of Landlord's notice. If Tenant disapproves
such estimate (or fails to approve such estimate in writing within the 30-day
period), Landlord shall not be obligated to build the addition to the existing
parking deck (and Tenant shall reimburse Landlord for the actual, reasonable,
out-of-pocket costs and fees incurred by Landlord to third parties in designing
such addition to the existing parking deck and seeking approvals and permits
from the Village of Schaumburg [provided such costs and fees shall not exceed
$10,000 unless Landlord has obtained Tenant's prior written consent to
Landlord's incurrence of such excess costs and fees]). If Tenant approves the
cost estimate within the 30-day period, Landlord shall, with reasonable
diligence, construct the addition to the existing parking deck. Tenant shall be
responsible for the costs of such addition to the existing parking deck by the
payment of the Parking Deck Rent described below. The costs of such addition
shall be deemed to include, without limitation, all hard costs, soft costs,
architectural, engineering and consulting fees and charges, permit and
inspection fees, finance charges and fees (such as points, commitment fees and
lender's legal fees) and, during the period commencing on the date funds are
first disbursed for the construction of the addition and expiring on the date
the Parking Deck Rent commences (as provided below), interest that has accrued
during such period under any construction loan that funds a portion of the costs
and, with respect to funds paid during such period by Landlord rather than a
lender, interest on such funds at a rate equal to the actual interest rate
charged Landlord
32
by a construction lender who has disbursed any funds in connection with the
construction of the addition. "Parking Deck Rent" shall be rent payable monthly,
at the same time and in the same manner as Base Rent, commencing on the first
day of the month following the date Landlord makes the spaces in the addition to
the existing parking deck available to Tenant for parking (regardless of whether
Base Rent is then payable). The amount of the Parking Deck Rent shall be
calculated after each disbursement of funds by Landlord in connection with the
construction of the addition to the existing parking deck, using a "debt
constant" of 10.5% for each disbursement as of the date of the disbursement
(provided that if a disbursement is after the Commencement Date and thus the
amortization of the costs is over less than 10 years, then the debt constant
shall be increased to a percentage determined by using the same imputed interest
rate as if the amortization were over 10 years). An example of the calculation
of the amount of the Parking Deck Rent is attached hereto as Exhibit I. The
parking spaces made available to Tenant due to the construction of the addition
to the existing parking deck are also considered "Tenant's Special Parking
Spaces." Landlord and Tenant shall enter into amendments to this Lease to
reflect (i) the construction of the addition to the existing parking deck,
promptly after Tenant approves Landlord's cost estimate, and (ii) the final
amount of the Parking Deck Rent, promptly after such amount is known. If Tenant
approves a cost estimate and thus directs Landlord to construct an addition to
the existing parking deck, Landlord may, in its sole discretion, construct an
addition containing more parking spaces than the number desired by Tenant. If
Landlord constructs additional spaces, then (x) the marginal cost of such
additional spaces shall be borne exclusively by Landlord and (y) such additional
spaces shall not be included in Tenant's Special Parking Spaces.
D. Reserved Parking Spaces. Landlord shall furnish to Tenant a number
-----------------------
of reserved parking spaces equal to the number of Tenant's Special Parking
Spaces for so long as this Lease is in full force and effect and Tenant is not
in Default under this Lease. The locations of the reserved parking spaces shall
be designated by Landlord and shall be subject to change from time to time
(provided all of Tenant's Special Parking Spaces shall be in the parking deck).
Landlord shall xxxx Tenant's reserved parking spaces in a reasonable manner to
indicate to third parties that such spaces are reserved for use by Tenant and
Landlord shall use reasonable and customary efforts to prevent unauthorized use
of Tenant's reserved parking spaces, but Landlord shall have no responsibility
for or liability in the event of any unauthorized use of said reserved parking
spaces.
27. EXPANSION OPTION.
A. Expansion Space and Expansion Date. For purposes of this Section
----------------------------------
27, the "Expansion Space" shall mean a whole floor of the Building designated by
Landlord contiguous to the Premises. Landlord shall notify Tenant ("Landlord's
Expansion Notice") of the location of the Expansion Space and the date it will
be available for Tenant to lease (the "Expansion Date"), which Expansion Date
must be within the 15-month period commencing on the fifth anniversary of the
Commencement Date, at least 12 months prior to the Expansion Date. If Tenant has
leased so much of the Building that a whole floor does not remain unleased by
Tenant, this Section 27 shall be null and void.
33
B. Expansion Option. Tenant shall have the option (the "Expansion
----------------
Option") to lease all (but not less than all) of the Expansion Space effective
as of the Expansion Date, upon the following terms and conditions:
(i) Tenant gives Landlord a written notice of Tenant's
election to exercise the Expansion Option, which notice is given not
later than nine months prior to the Expansion Date;
(ii) Tenant gives Landlord, concurrently with Tenant's
exercise of the Expansion Option, current financial statements of
Tenant (which may be consolidated so long as Landlord can reasonably
derive specific financial information about Tenant) evidencing to
Landlord's reasonable satisfaction a net worth in excess of $100
Million Dollars; and
(iii) This Lease is in full force and effect and Tenant is not
in Default under this Lease, either on the date Tenant exercises the
Expansion Option or on the Expansion Date.
C. Term. If Tenant timely and properly exercises the Expansion
----
Option, the lease term for the Expansion Space shall commence effective as of
the Expansion Date and shall be coterminous with the Term for the initial
Premises. In no event shall Landlord be liable to Tenant if Landlord is unable
to deliver possession of the Expansion Space on the specified date for causes
outside Landlord's reasonable control. If Landlord is unable to deliver
possession of the Expansion Space to Tenant by the specified Expansion Date,
then the Expansion Date shall be deferred until Landlord can deliver possession
of the Expansion Space to Tenant (excluding Tenant Delays). If Tenant does not
timely or properly exercise the Expansion Option, Landlord may at any time
thereafter lease the Expansion Space to any third party on such terms and
conditions as are acceptable to Landlord, without any further rights of Tenant
to lease such space (subject to the Right of First Refusal [as hereinafter
defined]).
D. Base Rent. If Tenant exercises the Expansion Option, effective as
---------
of the Expansion Date, Tenant shall pay Base Rent for the Expansion Space in
accordance with this Lease. The annual rate of Base Rent for the Expansion Space
shall equal the product of the number of rentable square feet in the Expansion
Space multiplied by the annual rate of Base Rent per square foot of rentable
area payable from time to time under this Lease for the initial Premises as
determined pursuant to Exhibit A.
E. Adjustment Rent. If Tenant exercises the Expansion Option, Tenant
---------------
shall pay Adjustment Rent for the Expansion Space in accordance with Section 2.
Effective as of the Expansion Date, Tenant's Proportionate Share shall be
increased by an amount equal to the quotient of (x) the total rentable area of
the Expansion Space divided by (y) the rentable area of the Building.
F. No Rent Abatement. There shall be no abatement of Base Rent or
-----------------
Adjustment Rent for the Expansion Space.
34
G. Tenant Improvements. If Tenant exercises the Expansion Option,
-------------------
Landlord shall provide Tenant with a tenant improvement allowance in the amount
equal to the product of:
(i) $40.00 per rentable square foot of the Expansion Space
multiplied by
(ii) the quotient of (x) the number of full calendar months
remaining in the scheduled Term as of the Expansion Date divided by (y)
120.
Notwithstanding the foregoing, if the Expansion Space has previously been
improved for another tenant or occupant, the tenant improvement allowance for
the Expansion Space shall instead be equal to $15.00 per rentable square foot of
the Expansion Space. Any such tenant improvement allowance shall be used only
for improvements to the Expansion Space and the balance of the Premises
(provided up to $10.00 per rentable square foot of the Expansion Space may be
used as a credit against Rent coming due) and Landlord and Tenant agree to
execute a Work Letter Agreement with respect to such improvements in a form
substantially similar to the form attached hereto as Exhibit C. Tenant agrees
that for the Expansion Space, it must deliver Construction Documents in a form
approved by Landlord (which approval shall not be unreasonably withheld) for the
improvements desired by Tenant in such Expansion Space at least four months in
advance of the Expansion Date. Any delay in delivery of the Construction
Documents shall constitute a Tenant Delay.
H. Application of Other Provisions. Except as set forth in this
-------------------------------
Section 27, all of the terms and provisions of this Lease shall apply with
respect to the lease by Landlord to Tenant of the Expansion Space.
I. Amendment. If Tenant exercises the Expansion Option, Landlord and
---------
Tenant shall execute and deliver an amendment to this Lease reflecting the lease
by Landlord to Tenant of the Expansion Space on the terms herein provided, which
amendment shall be executed and delivered within 30 days after Tenant exercises
the Expansion Option.
J. Termination. The Expansion Option shall automatically terminate and
-----------
become null and void upon the earlier to occur of (1) the expiration or
termination of this Lease, (2) the termination of Tenant's right to possession
of all of the Premises, (3) the assignment of this Lease by Tenant (other than
to an Affiliate), (4) the sublease by Tenant (other than to an Affiliate) of all
or more than 40% of the rentable area of the Premises, in the aggregate with all
other space then sublet (other than to an Affiliate), (5) the failure by Tenant
to timely and properly exercise the Expansion Option, or (6) Tenant's exercise
of the Contraction Option.
28. RIGHT OF FIRST REFUSAL.
A. ROFR Space. For purposes of this Lease, the "ROFR Space" shall mean
----------
all rentable areas in the Building not leased by Tenant.
B. Right of First Refusal. With respect to any lease which Landlord
----------------------
hereafter intends to enter into with a third-party tenant for all or any portion
of the ROFR Space and which has a lease
35
term commencing at any time prior to the date that is two years prior to the
Expiration Date (taking into account exercised Extension Options [as hereinafter
defined]) (but excluding any new or renewal lease with any then existing tenant
of all or any portion of the ROFR Space, whether pursuant to an option or right
in such tenant's lease or pursuant to new negotiations between Landlord and such
tenant, and excluding any lease expansion with any then existing tenant of any
portion of the ROFR space pursuant to an option or right then existing in such
tenant's lease), Landlord shall give Tenant written notice of such intent
("Landlord's ROFR Notice") prior to Landlord entering into such lease.
Landlord's Notice shall specify (i) the location and rentable area of the
portion of the ROFR Space which Landlord intends to lease (which is henceforth
referred to as the "Actual ROFR Space"), (ii) the commencement date and
expiration date of the lease term for the Actual ROFR Space, (iii) the rate of
rent and other economic terms for the Actual ROFR Space, (iv) how much time
Landlord anticipates will be required to improve the Actual ROFR Space and (v)
all options and other material business terms of the proposed lease. Tenant
shall thereupon have a right (a "Right of First Refusal") to lease all, but not
less than all, of the Actual ROFR Space, subject to the following terms and
conditions:
(1) Tenant gives Landlord a written notice of its election to
exercise the Right of First Refusal within seven business days after
Landlord gives Tenant Landlord's ROFR Notice;
(2) Tenant gives Landlord, concurrently with Tenant's exercise
of the Right of First Refusal, current financial statements of Tenant
(which may be consolidated so long as Landlord can reasonably derive
specific financial information about Tenant) evidencing to Landlord's
reasonable satisfaction a net worth in excess of $100 million; and
(3) Tenant is not in Default under this Lease, either on the
date Tenant exercises the Right of First Refusal or on the proposed
commencement date of the lease term for the Actual ROFR Space, and this
Lease is in full force and effect both on the date Tenant exercises the
Right of First Refusal and on the proposed commencement date of the
lease term for the Actual ROFR Space.
If Tenant does not timely or properly exercise a Right of First Refusal,
Landlord may at any time thereafter lease the Actual ROFR Space to the
third-party tenant, without any further rights of Tenant to lease such space
unless and until (x) six months has elapsed and Landlord has not entered into a
lease with such third-party tenant or (y) such third-party tenant has vacated
the Actual ROFR Space and it is available for leasing.
C. Terms. If Tenant exercises a Right of First Refusal, the
-----
following terms and provisions shall apply:
(1) Landlord shall lease the Actual ROFR Space to Tenant for a
lease term commencing on the availability date specified in Landlord's
ROFR Notice and expiring on the Expiration Date of the Term (or, if
different, at Tenant's option, on the expiration date specified in
Landlord's ROFR Notice). In no event shall Landlord be liable to Tenant
if
36
Landlord is unable to deliver possession of the Actual ROFR Space on
the availability date specified in Landlord's ROFR Notice for causes
outside Landlord's reasonable control (including, without limitation,
the failure of any existing tenant in such Actual ROFR Space to timely
vacate its premises [provided Landlord shall use commercially
reasonable, customary efforts to cause such tenant to vacate its
premises]). If Landlord is unable to deliver possession of the Actual
ROFR Space to Tenant by the specified availability date, then the
commencement date of the lease term of the Actual ROFR Space shall be
deferred until Landlord can deliver possession of the Actual ROFR
Space to Tenant (excluding Tenant Delays).
(2) The annual rate of Base Rent for the Actual ROFR Space
shall be equal to the amount stated in Landlord's ROFR Notice. Tenant
shall pay Adjustment Rent for the Actual ROFR Space in accordance with
the terms of Landlord's ROFR Notice.
(3) Tenant shall not be entitled to any rental abatement for
an Actual ROFR Space except as provided in Landlord's ROFR Notice (to
be prorated as provided in clause (4) below, if applicable).
(4) Tenant shall accept each Actual ROFR Space in an "as-is",
"where-is" physical condition, without any agreement, representation,
credit or allowance from Landlord with respect to the improvement or
condition thereof, except that Landlord shall provide Tenant with a
tenant improvement allowance (and other economic concessions) equal to
the amount stated in Landlord's ROFR Notice, provided that if the
expiration date stated in Landlord's ROFR Notice is different than the
Expiration Date, and Tenant has elected that the lease term of the
Actual ROFR Space will expire on the Expiration Date, then such tenant
improvement allowance (and other economic concessions) stated in
Landlord's ROFR Notice will be prorated to reflect such difference
(e.g., if the lease term stated in Landlord's ROFR Notice is longer
than Tenant's scheduled lease term of the Actual ROFR Space, the tenant
improvement allowance stated in Landlord's ROFR Notice shall be
decreased proportionately based upon the number of months in the lease
term stated in Landlord's ROFR Notice and the number of months in the
scheduled lease term). Any such tenant improvement allowance shall be
used only for improvements to the Actual ROFR Space and the balance of
the Premises (provided up to $10.00 per rentable square foot of the
Actual ROFR Space may be used as a credit against Rent coming due) and
Landlord and Tenant agree to execute a Work Letter Agreement with
respect to such improvements in a form similar to the form attached
hereto as Exhibit C.
(5) Tenant's lease of the Actual ROFR Space shall be upon the
terms set forth in Landlord's ROFR Notice, except as otherwise provided
herein.
(6) All of the terms and provisions of this Lease shall apply
with respect to the lease of an Actual ROFR Space, except as the same
may be inconsistent with the provisions of this Section 28.
37
D. Amendment. If Tenant exercises a Right of First Refusal, Landlord
---------
and Tenant shall execute and deliver an amendment to this Lease reflecting the
lease of the Actual ROFR Space by Landlord to Tenant on the terms herein
provided, which amendment shall be executed within 30 days after Tenant
exercises the Right of First Refusal.
E. Termination. Each Right of First Refusal shall automatically
-----------
terminate and become null and void upon the earlier to occur of (1) the
expiration or termination of this Lease, (2) the termination by Landlord of
Tenant's right to possession of all of the Premises, (3) the assignment of this
Lease by Tenant (other than to an Affiliate), (4) the sublease by Tenant (other
than to an Affiliate) of all or more than 40% of the rentable area of the
Premises, in the aggregate with all other space then sublet (other than to an
Affiliate), (5) the failure of Tenant to timely or properly exercise the Right
of First Refusal, or (6) Tenant's exercise of the Contraction Option.
29. EXTENSION OPTIONS.
A. First Extension Option. Tenant shall have an option (the "First
----------------------
Extension Option") to renew the Term with respect to all (but not less than all)
of the Premises demised under or pursuant to this Lease as of the expiration
date of the initial Term, for one additional term (the "First Extension Term")
of five years, upon the following terms and conditions:
(1) Tenant gives Landlord written notice of Tenant's election
to exercise the First Extension Option not later than 12 months prior
to the expiration date of the initial Term;
(2) Tenant gives Landlord, concurrently with Tenant's exercise
of the First Extension Option, current financial statements of Tenant
(which may be consolidated so long as Landlord can reasonably derive
specific financial information about Tenant) evidencing to Landlord's
reasonable satisfaction a net worth in excess of $500 Million Dollars;
and
(3) Tenant is not in Default under this Lease, either on the date
Tenant exercises the First Extension Option or on the expiration date
of the initial Term, and this Lease is in full force and effect on the
date on which Tenant exercises the First Extension Option and on the
proposed commencement date of the First Extension Term.
B. Second Extension Option. Tenant shall have an option (the "Second
-----------------------
Extension Option") to renew the Term with respect to all (but not less
than all) of the Premises demised under or pursuant to this Lease as of
the expiration date of the First Extension Term, for one additional
term (the "Second Extension Term") of five years, upon the following
terms and conditions:
(1) Tenant gives Landlord written notice of Tenant's election
to exercise the Second Extension Option not later than 12 months prior
to the expiration date of the First Extension Term;
(2) Tenant gives Landlord, concurrently with Tenant's exercise
of the Second Extension Option, current financial statements of Tenant
(which may be consolidated so long
38
as Landlord can reasonably derive specific financial information about
Tenant) evidencing to Landlord's reasonable satisfaction a net worth in
excess of $500 Million Dollars; and
(3) Tenant is not in Default under this Lease, either on the
date Tenant exercises the Second Extension Option or on the expiration
date of the First Extension Term, and this Lease is in full force and
effect on the date on which Tenant exercises the Second Extension
Option and on the proposed commencement date of the Second Extension
Term.
C. Terms. If Tenant timely and properly exercises the First Extension
-----
Option or the Second Extension Option (each an "Extension Option"):
(1) The Rent payable for the First Extension Term or the
Second Extension Term (each, an "Extension Term"), as applicable, shall
be equal to the "market rate of rent" that will be in effect at the
commencement of the Extension Term. "Market rate of rent" shall mean
95% of the total rate of rent, including component parts of such rate
of rent such as base rent, fixed and/or indexed rental adjustments and
all rental adjustments for Taxes and Expenses for the Building, taking
into account Landlord contributions, if any, to Taxes and Expenses for
the Building, and tenant concessions, if any, such as rent abatements
and tenant improvement allowances, which landlords of comparable office
buildings in Schaumburg, Illinois are offering to third party tenants
for office space comparable to the Premises (taking into account the
lengths of the terms and the sizes and levels of improvement of the
spaces demised under such leases to third party tenants). The Base Rent
payable during the Extension Term shall be subject to adjustment during
the Extension Term as provided in the market rate of rent. There shall
be no abatement of Base Rent or Adjustment Rent for the Premises during
the Extension Term, except as may be specifically included in the
market rate of rent or unless Landlord and Tenant otherwise agree.
Upon Tenant's exercise of an Extension Option, Landlord shall
provide Tenant with written notice of Landlord's determination of the
"market rate of rent." Such notice shall be given not later than the
last to occur of (i) 30 days after Tenant exercises the Extension
Option or (ii) 12 months prior to the Commencement Date of the
Extension Term. Tenant shall have 20 days ("Tenant's Review Period")
after receipt of Landlord's notice of the proposed "market rate of
rent" within which to accept such proposed "market rate of rent" or to
object thereto in writing. If Tenant so objects, Landlord and Tenant
shall attempt to agree upon such "market rate of rent" using their best
good faith efforts. If Landlord and Tenant fail to reach agreement by
the date that is 20 days following the expiration of Tenant's Review
Period (the "Outside Agreement Date"), then each party's good faith
determination of "market rate of rent" for the Extension Term shall be
submitted by sealed bid to arbitration in accordance with the following
procedure:
(i) Not later than 20 days following the Outside Agreement Date,
Landlord and Tenant shall each appoint one independent arbitrator who
shall by profession be a real estate appraiser (with the professional
designation of M.A.I. or, if M.A.I. ceases to exist, a comparable
designation from an equivalent professional appraiser organization) or
office
39
leasing broker who shall have been active over the 10-year period
ending on the date of such appointment in appraising or leasing of
commercial properties in the Chicago metropolitan area. The two
arbitrators so appointed shall within 10 days of the date of the
appointment of the last appointed arbitrator agree upon and appoint a
third arbitrator who shall be qualified under the same criteria set
forth hereinabove for qualification of the initial two arbitrators. If
the two arbitrators fail to agree upon and appoint a third arbitrator,
both arbitrators shall be dismissed and Landlord and Tenant each shall
promptly select and appoint one new arbitrator each possessing the
qualifications above.
(ii) The determination of the arbitrators shall be limited
solely to the issue of whether Landlord's or Tenant's submitted "market
rate of rent" for the Extension Term is the closest to the "market rate
of rent" as determined by the arbitrators, taking into account all
relevant elements, including, without limitation, the elements listed
above. The three arbitrators shall within 30 days of the appointment of
the third arbitrator reach a decision as to whether the parties shall
use Landlord's or Tenant's submitted "market rate of rent" and shall
notify Landlord and Tenant thereof in writing.
(iii) The decision of the majority of the three arbitrators
shall be binding upon Landlord and Tenant and judgment upon such
decision may be entered into by any court having jurisdiction over
Landlord and Tenant.
(iv) The cost of arbitration shall be paid by Landlord if
Tenant's submitted "market rate of rent" is selected and by Tenant if
Landlord's submitted "market rate of rent" is selected.
(v) Notwithstanding the foregoing, if either Landlord or
Tenant fails to appoint an arbitrator within 30 days after the Outside
Agreement Date as provided above and such failure to appoint an
arbitrator is not cured within 10 days after receipt by such failing
party of written demand to do so by the other party (which other party
shall have appointed its arbitrator prior to sending such written
demand), then the arbitrator appointed by the party sending such
demand, acting alone, shall reach a decision on the applicable "market
rate of rent," notify Landlord and Tenant in writing thereof, and such
arbitrator's decision shall be binding on Landlord and Tenant.
(vi) If for any reason whatsoever the applicable "market rate
of rent" has not been determined by the commencement of the Extension
Term, the average of (a) the "market rate of rent" (and terms of
payment) as proposed by Landlord and (b) the "market rate of rent"
(and terms of payment) as proposed by Tenant, shall be utilized as the
rate of rent until such time as the final "market rate of rent" has
been conclusively determined (at which time, (x) if Landlord's
submitted "market rate of rent" is selected, Tenant shall promptly pay
Landlord the excess amount due, if any, for the period during which
the "average" market rate of base rent was utilized or (y) if Tenant's
submitted "market rate of rent" is selected, Landlord shall credit
against rent next coming due the excess amount paid by Tenant, if any,
for the period during which the "average" market rate of rent was
utilized).
40
(2) Tenant shall have no further options to extend the Term of
this Lease beyond the expiration date of the Second Extension Term.
(3) Landlord shall not be obligated to perform any leasehold
improvement work in the Premises or give Tenant any allowance for any
such work or any other purposes during or for an Extension Term, except
as to any allowance which may be specifically included in the
determination of the market rate of rent.
(4) Except for the rate of Rent and except as otherwise
provided herein, all of the terms and provisions of this Lease shall
remain the same and in full force and effect during each Extension
Term.
D. Amendment. If Tenant exercises an Extension Option, Landlord and
---------
Tenant shall execute and deliver an amendment to this Lease reflecting the lease
of the Premises by Landlord to Tenant for the Extension Term on the terms
provided above, which amendment shall be executed and delivered promptly after
Tenant exercises the Extension Option.
E. Termination. Each Extension Option shall automatically terminate
-----------
and become null and void upon the earlier to occur of (1) the expiration or
termination of this Lease, (2) the termination of Tenant's right to possession
of all of the Premises, (3) the assignment of this Lease by Tenant (other than
to an Affiliate), (4) the sublease by Tenant (other than to an Affiliate) of all
or more than 40% of the rentable area of the Premises, in the aggregate with all
other space then sublet (other than to an Affiliate), or (5) the failure of
Tenant to timely or properly exercise the Extension Option.
30. CONTRACTION OPTION.
A. Contraction Option. Tenant shall have one option (the "Contraction
------------------
Option") to terminate this Lease with respect to one contiguous portion of the
Premises (the "Contraction Space") to be designated by Tenant (not to exceed (i)
25% of the rentable area of the Premises, if the Premises is greater than
250,000 rentable square feet or (ii) 20% of the rentable area of the Premises,
if the Premises is equal to or less than 250,000 rentable square feet) (not
including any XXXX Space [as hereinafter defined]), but which portion must be in
increments of whole floors (except for the highest or lowest floor, if the
portion of the Premises on such floor does not consist of the whole floor) and
must start with either the highest or lowest whole floors then leased by Tenant.
If Tenant exercises the Contraction Option, this Lease shall terminate, pro
---
tanto, with respect to the Contraction Space effective as of the last day of the
-----
fifth Lease Year (the "Contraction Date").
B. Exercise of Contraction Option. The Contraction Option is granted
------------------------------
subject to satisfaction of the following terms and conditions:
(i) Tenant gives Landlord a written notice of Tenant's
election to exercise the Contraction Option, which notice shall (a)
designate the actual Contraction Space and (b) be given not later than
one year prior to the Contraction Date;
41
(ii) Tenant is not in Default under this Lease either on the
date Tenant exercises the Contraction Option or on the Contraction
Date;
(iii) Tenant pays to Landlord a cash lease termination fee
(the "Contraction Fee") in an amount equal to the sum of:
(I) three multiplied by the monthly Base Rent and
Adjustment Rent otherwise scheduled to be due and payable for
the Contraction Space during the month in which the fifth
anniversary of the Commencement Date occurs, plus
(II) the unamortized amount as of the Contraction Date of
the sum of the following costs relating to the Contraction
Space:
(1) all brokerage commissions paid or incurred by
Landlord, plus
(2) all rent abatements, cash allowances and other
economic concessions (not including the costs of
constructing the base Building or the costs of the
Generator or the Cafeteria) provided by Landlord to
Tenant, plus
(3) the costs of all tenant improvement work (and
all architectural fees associated therewith) paid or
incurred by Landlord,
which costs shall be amortized, with interest at 9.5% per annum,
on a straight-line basis over the initial Term of this Lease. If
the Contraction Space is part of a larger space that was leased
at the same time, then the "costs relating to the Contraction
Space" shall mean the pro rata share of such total costs based
upon the ratio that the rentable area of the Contraction Space
bears to the rentable area of the total larger space.
One-half of the Contraction Fee shall be due and payable not later than
three months prior to the Contraction Date and the balance of the
Contraction Fee shall be due and payable on or before the Contraction
Date.
C. Terms. If Tenant exercises the Contraction Option:
-----
(i) This Lease shall terminate pro tanto with respect to the
---------
Contraction Space effective as of the Contraction Date and Rent for the
Contraction Space shall be paid through and apportioned as of the
Contraction Date;
(ii) Tenant shall surrender and vacate the Contraction Space
and deliver possession thereof to Landlord on or before the Contraction
Date in the condition required under Section 15;
42
(iii) Neither Landlord nor Tenant shall have any rights, estates,
liabilities or obligations under this Lease with respect to the
Contraction Space for the period first accruing after the Contraction
Date, except those which, pursuant to this Lease, are expressly
intended to survive the expiration or termination of this Lease; and
(iv) This Lease shall continue in full force and effect with
respect to the entire remaining portion of the Premises (other than the
Contraction Space) for the balance of the Term. Effective as of the day
immediately following the Contraction Date, the Base Rent and
Adjustment Rent payable under this Lease shall be reduced by the amount
of Base Rent and Adjustment Rent which would otherwise have been
payable under this Lease for the Contraction Space (Parking Deck Rent
attributable to the construction or addition to the parking deck, as
described in Section 26C, and additional rent attributable to the
Additional Allowance described in the Work Letter Agreement shall not
be reduced on account of Tenant's exercise of the Contraction Option).
D. Amendment. If Tenant exercises the Contraction Option, Landlord
---------
and Tenant shall enter into an amendment to this Lease reflecting the
termination of this Lease, pro tanto, with respect to the Contraction Space,
upon the terms set forth herein, which amendment shall be executed and delivered
promptly after Tenant exercises the Contraction Option.
E. Termination. The Contraction Option shall automatically terminate
-----------
and become null and void upon the earlier to occur of (1) the termination of
Tenant's right to possession of all of the Premises, (2) the assignment of this
Lease by Tenant (other than to an Affiliate), (3) the failure of Tenant to
timely or properly exercise the Contraction Option, or (4) if, within two years
of the Contraction Date, Tenant has exercised a Right of First Refusal or the
Right of Second Opportunity (as hereinafter defined).
31. TERMINATION OPTION.
A. Termination Option. Tenant shall have an option (the "Termination
------------------
Option") to terminate this Lease with respect to the entire Premises effective
as of the last day of the seventh Lease Year (the "Termination Date"). The
Termination Option is granted subject to the following terms and conditions:
(1) Tenant gives Landlord written notice of Tenant's
election to exercise the Termination Option not later than 18
months prior to the Termination Date;
(2) Tenant is not in Default under this Lease, either on
the date that Tenant exercises the Termination Option on the
Termination Date; and
(3) Tenant pays to Landlord a cash lease termination fee
(the "Termination Fee") in an amount equal to the sum of:
43
(i) the product of $28.75 multiplied by the
rentable area of the initial Premises, plus
(ii) the unamortized amount as of the Termination
Date of the sum of the following costs relating to all
space leased by Tenant other than the initial Premises
(e.g., the Expansion Space, the ROFR Space and the XXXX
Space):
(a) all brokerage commissions paid or
incurred by Landlord, plus
(b) all rent abatements, cash allowances
and other economic concessions (not including the
costs of constructing the base Building or the
costs of the Generator or the Cafeteria) provided
by Landlord to Tenant, plus
(c) the costs of all tenant improvement
work (and all architectural fees associated
therewith) paid or incurred by Landlord,
which costs shall be amortized, with interest at 9.5%
per annum, on a straight-line basis over the initial
lease term of such space, plus
(iii) the unamortized amount as of the
Termination Date of all costs to be borne by Tenant
as Parking Deck Rent pursuant to Section 26C relating
to the construction of the parking deck or the addition
to an existing parking deck, which costs shall be
amortized, with interest at 9.5% per annum, on a
straight-line basis over the period commencing on the
date such costs are disbursed and expiring on the
scheduled Expiration Date (absent the exercise of the
Termination Option), plus
(iv) the entire unpaid principal balance of
the Additional Allowance and all accrued and unpaid
interest thereon.
One-half of the Termination Fee shall be due and payable not
later than three months prior to the Termination Date and the
balance of the Termination Fee shall be payable on or before
the Termination Date.
B. Terms. If Tenant timely and properly exercises the Termination
-----
Option: (1) all Rent payable under this Lease for the portion of the Premises so
terminated shall be paid through and apportioned as of the Termination Date (in
addition to payment of the Termination Fee), (2) neither party shall have any
rights, estates, liabilities or obligations under this Lease for the period
accruing after the Termination Date, except those which, by the provisions of
this Lease, are intended to survive the expiration or termination of the Term of
this Lease, and (3) Landlord and Tenant shall
44
promptly enter into a written agreement reflecting the termination of this Lease
upon the terms provided for herein.
C. Termination. The Termination Option shall automatically terminate and
-----------
become null and void upon the earlier to occur of (1) the
termination of Tenant's right to possession of all of the Premises or (2) the
failure of Tenant to timely or properly exercise the Termination Option.
32. RIGHT OF SECOND OPPORTUNITY IN ADJACENT BUILDING.
X. XXXX Space. For purposes of this Lease, the "XXXX Space" shall mean
----------
the entire sixth floor and seventh floor of the building located at 0000
XxXxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx (the "Phase I Building"). The rights set
forth in this Section 32 shall be null and void if at any time (and at all times
thereafter) the record owner of the Building is different than the record owner
of the Phase I Building. Tenant acknowledges that there may be a change in such
record ownership at any time.
B. Right of Second Opportunity. Subject to any rights in favor of any
---------------------------
tenant in the Phase I Building (or its successors or assigns), and excluding any
lease to Ariba, Inc. or any affiliate thereof, with respect to the first lease
which Landlord hereafter intends to enter into with a third-party tenant for
either (i) all or any portion of the XXXX Space, or (ii) all or any portion of
the XXXX Space plus any other space in the Phase I Building (for purposes
hereof, any such other space shall be deemed to be part of the XXXX Space), and
which has a lease term commencing at any time prior to the date that is two
years prior to the Expiration Date (taking into account exercised Extension
Options [as hereinafter defined]) (but excluding any new or renewal lease with
any then existing tenant of all or any portion of the XXXX Space, whether
pursuant to an option or right in such tenant's lease or pursuant to new
negotiations between Landlord and such tenant, and excluding any lease expansion
with any then existing tenant of any portion of the XXXX space pursuant to an
option or right then existing in such tenant's lease), Landlord shall give
Tenant written notice of such intent ("Landlord's XXXX Notice") prior to
Landlord entering into such lease. Landlord's XXXX Notice shall specify (i) the
location and rentable area of the portion of the XXXX Space which Landlord
desires to lease (which is henceforth referred to as the "Actual XXXX Space"),
(ii) the proposed commencement date of the lease term for the Actual XXXX Space,
(iii) the annual rate of base rent per square foot of rentable area which
Landlord desires to charge for the Actual XXXX Space, (iv) the amount of all
rent adjustments which Landlord desires to charge for the Actual XXXX Space,
including, without limitation, fixed and/or indexed rent adjustments and rent
adjustments for Expenses and Taxes for the Phase I Building, and (v) the tenant
concessions (e.g., rent abatements and tenant improvement allowances), if any,
which Landlord would be willing to provide to lease the Actual XXXX Space. Items
(iii) through (v) in the preceding sentence shall be quoted by Landlord in
Landlord's Notice for a hypothetical lease having a lease term which would
expire on the Expiration Date of the Term. Tenant shall thereupon have the right
(a "Right of Second Opportunity") to lease all, but not less than all, of the
Actual XXXX Space, subject to the following terms and conditions:
45
(1) Tenant gives Landlord a written notice of its election to exercise
the Right of Second Opportunity within five business days after Landlord
gives Tenant Landlord's XXXX Notice;
(2) Tenant gives Landlord, concurrently with Tenant's exercise of the
Right of Second Opportunity, current financial statements of Tenant (which
may be consolidated so long as Landlord can reasonably derive specific
financial information about Tenant) evidencing to Landlord's reasonable
satisfaction a net worth in excess of $100 Million Dollars;
(3) Tenant is not in Default under this Lease, either on the date Tenant
exercises the Right of First Opportunity or on the proposed commencement
date of the lease term for the Actual XXXX Space, and this Lease is in full
force and effect both on the date Tenant exercises the Right of First
Opportunity and on the proposed commencement date of the lease term for the
Actual XXXX Space; and
(4) No tenant in the Phase I Building has exercised its right or option
upon the Actual XXXX Space.
If Tenant does not timely or properly exercise the Right of Second Opportunity,
Landlord may at any time thereafter lease the Actual XXXX Space to any
third-party tenant on such terms and provisions as Landlord may elect (provided
the economic terms of such lease to such third-party tenant shall not be less
than 95% of the economic terms offered to Tenant) , without any further rights
of Tenant to lease such space.
C. Terms. If Tenant exercises the Right of Second Opportunity, the
-----
following terms and provisions shall apply:
(1) Landlord shall lease the Actual XXXX Space to Tenant for a lease
term commencing on the availability date specified in Landlord's XXXX
Notice and expiring on the Expiration Date of the Term. In no event shall
Landlord be liable to Tenant if Landlord is unable to deliver possession of
the Actual XXXX Space on the availability date specified in Landlord's XXXX
Notice for causes outside Landlord's reasonable control (including, without
limitation, the failure of any existing tenant in such Actual XXXX Space to
timely vacate its premises [provided Landlord shall use commercially
reasonable, customary efforts to cause such tenant to vacate its
premises]). If Landlord is unable to deliver possession of the Actual XXXX
Space to Tenant by the specified availability date, then the commencement
date of the lease term of the Actual XXXX Space shall be deferred until
Landlord can deliver possession of the Actual XXXX Space to Tenant.
(2) The Base Rent and Rent Adjustment payable for the Actual XXXX Space
shall be as set forth in Landlord's XXXX Notice.
46
(3) Tenant shall not be entitled to any rental abatement for the Actual
XXXX Space, except as otherwise set forth in Landlord's XXXX Notice (to be
prorated as provided in clause (4) below, if applicable).
(4) Tenant shall accept the Actual XXXX Space in an "as-is", "where-is"
condition, without any agreement, representation, credit or allowance from
Landlord with respect to the improvement or condition thereof, except that
Landlord shall provide Tenant with a tenant improvement allowance (and
other economic concessions) equal to the amount stated in Landlord's XXXX
Notice, provided that if the expiration date stated in Landlord's XXXX
Notice is different than the Expiration Date, then such tenant improvement
allowance (and other economic concessions) stated in Landlord's XXXX Notice
will be prorated to reflect such difference (e.g., if the lease term stated
in Landlord's XXXX Notice is longer than Tenant's scheduled lease term of
the Actual XXXX Space, the tenant improvement allowance stated in
Landlord's XXXX Notice shall be decreased proportionately based upon the
number of months in the lease term stated in Landlord's XXXX Notice and the
number of months in the scheduled lease term). Any such tenant improvement
allowance shall be used only for improvements to the Actual XXXX Space and
the balance of the Premises (provided up to $10.00 per rentable square foot
of the Actual XXXX Space may be used as a credit against Rent coming due)
and Landlord and Tenant agree to execute a Work Letter Agreement with
respect to such improvements in a form similar to the form attached hereto
as Exhibit C.
(5) All of the terms and provisions of this Lease shall apply with
respect to the Actual XXXX Space, except as the same may be inconsistent
with the provisions of this Section 32.
D. Amendment or New Lease. If Tenant exercises the Right of Second
----------------------
Opportunity, Landlord and Tenant shall promptly execute and deliver an amendment
to this Lease (or, at Landlord's option, a new, separate lease, similar to this
Lease in all material respects but (i) conformed to the Phase I Building
(including containing the standard provisions then contained in leases at the
Phase I Building regarding tenants' parking rights [such as limiting the parking
rights of the occupants of the Actual XXXX Space to 4.0 per 1,000 rentable
square feet of area of the Actual XXXX Space]), (ii) designating as the
"Premises" only the Actual XXXX Space and (iii) not containing Sections 26
through 38 of this Lease) reflecting the lease of the Actual XXXX Space by
Landlord to Tenant on the terms herein provided.
E. Termination. The Right of Second Opportunity shall automatically
-----------
terminate and become null and void upon the earlier to occur of (1) the
expiration or termination of this Lease, (2) the termination by Landlord of
Tenant's right to possession of all of the Premises, (3) the assignment of this
Lease by Tenant (other than to an Affiliate), (4) the sublease by Tenant of more
than 40% of the Premises (other than to an Affiliate), (5) the failure of Tenant
to timely or properly exercise the Right of Second Opportunity, (6) Tenant's
exercise of the Contraction Option or (7) the separation of the record ownership
of the Building and the Phase I Building.
47
33. RIGHTS OF REFUSAL TO PURCHASE BUILDING. Before Landlord makes or
accepts an offer set forth in a letter of intent to sell the Building to a third
party, Landlord shall offer to sell the Building to Tenant on such terms. If
Tenant does not accept such offer from Landlord within ten business days after
its submission, Landlord may thereafter sell the Building to any third party on
terms acceptable to Landlord (which shall be similar to those contained in the
offer submitted to Tenant, provided that the net purchase price to be paid by
such third party [after taking into account all credits, prorations and
concessions] is not less than 95% of the purchase price set forth in the offer
submitted to Tenant and the non-economic terms offered to such third party are
not more favorable in any material respect than those set forth in the offer
submitted to Tenant). If the offer set forth in the letter of intent is to sell
the Building with other property (such as, without limitation, the Phase I
Building), then the foregoing provisions shall apply, provided (1) Tenant's
right to purchase the Building shall be subject and subordinate to the prior
right of TCI Great Lakes, Inc., its successors and assigns ("TCI"), to purchase
the Building, (2) if TCI does not exercise its right to purchase the Building,
Landlord's offer to Tenant shall include both the Building and such other
property (and Tenant will not have the option of buying only the Building or
only the other property), and (3) Tenant shall instead have seven business days
to accept such offer.
34. SIGNAGE. Landlord shall provide building standard signage identifying
Tenant in the lobby of the Building and in the elevator lobby on each floor
occupied by Tenant and shall designate Tenant in the building directory.
Landlord hereby grants to Tenant the exclusive right during the Term of this
Lease, subject to the terms and conditions of this Section 34, to have signage
on the exterior parapet of the Building. Upon Tenant's written request
(including a detailed depiction of the desired graphics), Landlord shall
install, at Tenant's expense, signage on the exterior parapet of the Building.
Landlord shall also install one monument sign in front of the Building
exclusively identifying Tenant. If Landlord installs additional monument signs
to be shared among tenants, Tenant shall be entitled to the most prominent
signage. The design of all signage designating Tenant shall be subject to
Landlord's reasonable approval and shall be in accordance with Tenant's
corporate standards. Furthermore, Tenant's right to have such exterior parapet
signage and monument signage is conditioned upon Tenant obtaining all required
governmental approvals and such signage complying with the Declaration. Landlord
acknowledges and agrees that Tenant may seek to install the maximum allowable
parapet signage at the Building. Tenant's right to have such signage on the
Building and any monuments is further conditioned upon Tenant and/or any
Affiliate of Tenant occupying and conducting business from at least 50% of the
rentable area in the Building. Landlord shall maintain all such signage. Upon
the expiration or termination of the Term, Landlord, shall remove Tenant's signs
designating Tenant. Nothing in this Lease confers or grants to Landlord any
right to use or interest in the name "Zurich" (except as provided in this
Section 34) or Tenant's logo or trademarks. The costs of designing, fabricating,
installing, maintaining and removing the lobby signage, the parapet signage and
the exclusive monument signage designating Tenant described herein shall be
borne by Tenant and paid to Landlord within 30 days after being billed therefore
(or paid from the Allowance). Landlord shall be responsible for the costs for
designing, fabricating, installing, maintaining and removing the building
standard signage in the elevator lobbies and any signage on a shared monument
sign.
35. ENVIRONMENTAL PROTECTION.
48
A. Landlord's Environmental Protection. Tenant, on behalf of itself, its
-----------------------------------
agents, employees, subtenants, assigns, contractors and subcontractors, shall
not cause or permit to occur (excluding acts of Landlord, other tenants of the
Building and their respective agents, employees and contractors or anyone else
not under the direct control of Tenant):
(i) any violation of any federal, state or local law, ordinance or
regulation related to environmental conditions in or about the Building,
including, but not limited to, improvements or alterations made to the
Premises at any time by Tenant, its agents or contractors, or
(ii) the use, generation, release, manufacture, refining, production,
processing, storage or disposal of any "Hazardous Substances" (as
hereinafter defined) in or about the Building, or the transportation to or
from the Building of any Hazardous Substances (save and except reasonable
quantities of normal office products such as cleaners, solvents, toners,
all of which shall be stored and used by Tenant, at its expense, in
compliance with all applicable laws).
Tenant, on behalf of itself, its agents, employees, subtenants, assigns,
contractors and subcontractors, at its expense, shall comply with each federal,
state and local law, ordinance and regulation related to environmental
conditions in or about the Premises or Tenant's use of the Premises, including,
without limitation, all reporting requirements and the performance of any
cleanups required by any governmental authorities. Tenant shall indemnify,
defend and hold harmless Landlord and its employees from and against all fines
imposed by governmental entities and reasonable clean-up and response costs
(including reasonable attorneys' and consultants' fees) asserted against or
sustained by any such person or entity and arising out of or in any way
connected with a breach of this Section 32 by Tenant, which obligations shall
survive the expiration or termination of this Lease.
B. Tenant's Environmental Protection. Landlord, on behalf of itself, its
---------------------------------
agents, employees, contractors and subcontractors, shall not cause or permit to
occur (excluding acts of Tenant, other tenants of the Building and their
respective agents, employees and contractors or anyone else not under the direct
control of Landlord):
(i) any violation of any federal, state or local law, ordinance or
regulation related to environmental conditions in or about the Building,
including, but not limited to, improvements or alterations made to the
Building at any time by Landlord, its agents or contractors, or
(ii) the use, generation, release, manufacture, refining, production,
processing, storage or disposal of any Hazardous Substances in or about the
Building, or the transportation to or from the Building of any Hazardous
Substances (save and except reasonable quantities of normal cleaning and
janitorial products, sanitary sewage and solid wastes, all of which shall
be stored, disposed and used by Landlord in compliance with all applicable
laws).
49
Landlord, on behalf of itself, its agents, employees, contractors and
subcontractors, shall comply with each federal, state and local law, ordinance
and regulation related to environmental conditions in or about the Building,
including, without limitation, all reporting requirements and the performance of
any cleanups required by any governmental authorities. Landlord shall indemnify,
defend and hold harmless Tenant and its employees from and against all fines
imposed by governmental entities and reasonable clean-up and response costs
(including reasonable attorneys' and consultant's fees) asserted against or
sustained by any such person or entity and arising out of or in any way
connected with a breach of this Section 35 by Landlord, which obligations shall
survive the expiration or termination of this Lease.
C. Hazardous Substances. As used in this Section 32, "Hazardous
--------------------
Substances" shall include, without limitation, flammables, explosives,
radioactive materials, asbestos containing materials (ACMs), polychlorinated
biphenyls (PCBs), chemicals known to cause cancer or reproductive toxicity,
pollutants, contaminants, hazardous wastes, toxic substances, petroleum and
petroleum products, chlorofluorocarbons (CFCs), medical wastes and substances
declared to be hazardous or toxic under any federal, state or local law,
ordinance or regulation.
36. ROOFTOP COMMUNICATIONS EQUIPMENT. Prior to the Commencement Date,
Tenant shall designate a contiguous portion of the roof (not to exceed 75% of
the available area of the roof) as "Tenant's Reserved Rooftop Space." Landlord
shall not allow any other tenant or occupant to use Tenant's Reserved Rooftop
Space without Tenant's prior written consent (which consent shall not be
unreasonably withheld, conditioned or delayed). Tenant acknowledges that
Landlord may locate equipment serving the Building (including other rentable
areas) in Tenant's Reserved Rooftop Space. Tenant may locate and install
satellite dishes and antennas on Tenant's Reserved Rooftop Space to serve
Tenant's business operations at the Premises, provided that (a) the installation
and maintenance of such equipment is in conformity with all applicable zoning
provisions, (b) such equipment does not affect the structural integrity of the
Building or penetrate the roof membrane and (c) Landlord first approves the size
of and specifications for such equipment (which approval shall not be
unreasonably withheld, conditioned or delayed), and provided further that the
location, installation, operation and maintenance of such equipment shall (i) be
subject to and completed in accordance with the terms and conditions of Section
9 of this Lease and with any and all applicable governmental laws, codes, rules,
regulations and ordinances in effect from time to time; (ii) in no manner
unreasonably interfere with the use of any other communications equipment
installed on the roof (Tenant acknowledges that Tenant's right to install such
satellite dish or antenna is non-exclusive); and (iii) be designed to make the
equipment as aesthetically pleasing as possible so that it does not negatively
impact the architectural appeal of the Building. Landlord may from time to time
require Tenant to relocate equipment on the roof at Landlord's sole cost and
expense. Tenant shall not be obligated to pay any rent for such use of the roof.
Tenant must remove all such equipment and restore the Building upon the
expiration or termination of the Term. Tenant may not take any action with
respect to its use of any space on the Building's rooftop that will violate or
diminish any warranty or guarantee of the roof.
37. CAFETERIA. Landlord shall operate or cause to be operated a cafeteria
on the first floor of the Building (the "Cafeteria"), consisting of at least
6,000 square feet, which shall serve
50
breakfast and lunch, Monday through Friday (excluding holidays [as defined in
Section 5A]). As provided in Section 3, Landlord shall pay the cost of
purchasing and installing the Generator and the costs of improving and equipping
the Cafeteria, provided such costs relating to the Generator and the Cafeteria
do not exceed, in the aggregate, $380,000 (and if the costs exceed such amount,
Tenant shall be responsible for the excess [subject to payment from the
Allowance]). All fixtures, furniture and equipment used in the operation and
maintenance of the Cafeteria shall be deemed to be the property of Landlord. All
commercially reasonable costs and expenses incurred by Landlord in managing,
operating and maintaining the Cafeteria shall be included in Expenses. Landlord
shall select an independent contractor or tenant to manage, operate and maintain
the Cafeteria, subject to Tenant's reasonable approval thereto. If, after the
initial opening of the Cafeteria, the operator or tenant of the Cafeteria
breaches its operating agreement or such operating agreement expires or
terminates, Landlord shall, within 50 days thereafter, install a subsequent
operator to resume the operations of the Cafeteria (or such longer period as may
be necessary if Landlord, despite reasonable diligence, is unable to locate or
install such successor). Landlord shall keep Tenant reasonably apprised of
Landlord's progress in locating such successor. So long as Landlord is operating
the Cafeteria, Tenant agrees not to operate a food service facility in the
Premises for its employees (other than coffee makers and microwave ovens). At
Tenant's request, Landlord shall cause the operator or tenant of the cafeteria
to cooperate with Tenant in establishing and following a program whereby Tenant
subsidizes certain costs for food and beverages to be charged by such operator
or tenant to Tenant's employees.
38. STORAGE SPACE.
A. Storage Space. In addition to the Premises, Tenant hereby leases
-------------
certain storage space (the "Storage Space") consisting of approximately 10,000
square feet located in the penthouse of the Building. Landlord will provide
vinyl flooring, lighting, heat and ventilation and freight elevator service to
the Storage Space (and no other services), and only in the quantities, qualities
and capacities typically provided for storage spaces in office buildings in the
Chicago metropolitan area.
B. Storage Space Rent. In addition to all Rent required under the
------------------
Lease for the Premises, Tenant shall pay to Landlord as rent for the Storage
Space (the "Storage Space Rent") the amount set forth in Exhibit A. Monthly
payments of the Storage Space Rent shall be payable at the same time and in the
same manner as monthly installments of Base Rent. The Storage Space Rent for an
Extension Term, if applicable, shall be equal to the rental rate Landlord is
generally charging other tenants in the Building for storage space similar in
size and location to the Storage Space. Tenant shall not be obligated to pay
Adjustment Rent for the Storage Space.
C. Use. Tenant shall use the Storage Space only for storage of
---
normal office equipment and supplies and business records. Tenant shall keep the
Storage Space in a neat and orderly condition.
[Balance of page intentionally left blank]
51
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD: TENANT:
-------- ------
WINDY POINT OF SCHAUMBURG, a ZURICH AMERICAN INSURANCE
Delaware limited liability company COMPANY, a New York corporation
By: FRC WINDY POINT L.L.C., an
Illinois limited liability company, its By: /s/ Xxxxxx X. Xxxxxxx
managing member -------------------------
Title: Vice President and
By: /s/ Xxxxxx X. XxXxxxx -------------------------
------------------------------------ Secretary
Title: Managing Member -------------------------
---------------------------------
52
EXHIBIT A
DETERMINATION OF BASE RENT
The Base Rent for the initial Premises during the initial Term shall equal
the product of (i) the rentable area of the initial Premises, in square feet,
multiplied by the Rental Rate then in effect. The "Rental Rate" is set forth in
the following schedules based upon whether Tenant has elected to lease the
entire Building in accordance with Section 1B.
If Tenant leases the entire Building in accordance with Section 1B:
------------------------------------------------------------------
Lease Year Annual Rental Rate
---------- ------------------
1 $16.97
2 17.48
3 18.00
4 18.54
5 19.10
6 19.67
7 20.26
8 20.87
9 21.50
10 22.14
If Tenant does not lease the entire Building in accordance with Section 1B:
--------------------------------------------------------------------------
Lease Year Annual Rental Rate
---------- ------------------
1 $17.05
2 17.56
3 18.09
4 18.63
5 19.19
6 19.77
7 20.36
8 20.97
9 21.60
10 22.25
A-1
The Storage Space Rent for the Storage Space shall equal the product of (i)
the area of the Storage Space, in square feet, multiplied by (ii) the "Storage
Space Rental Rate" set forth below:
Lease Year Annual Storage Space Rental Rate
---------- --------------------------------
1 $5.00
2 5.15
3 5.30
4 5.46
5 5.63
6 5.80
7 5.97
8 6.15
9 6.33
10 6.52
The Base Rent for any ROFR Space or XXXX Space, or for the Premises
during an Extension Term, shall be determined as set forth in the Lease with
respect to such space or portion of the Term.
A-2
