1
Exhibit 10.20
LEASE
Between
LINPRO CHICAGO LAND LIMITED PARTNERSHIP,
an Illinois limited partnership,
Landlord,
and
CHICAGO TITLE AND TRUST COMPANY, an
Illinois corporation,
Tenant
2
TABLE OF CONTENTS
Page
----
1. Premises, Term and Base Rent ......................................... 1
2. Additional Rent ...................................................... 5
3. Use of Premises ...................................................... 17
4. Delivery of Possession ............................................... 18
5. Services ............................................................. 18
6. Condition and Care of Premises ....................................... 24
7. Surrender of Premises ................................................ 25
8. Holding Over ......................................................... 27
9. Rules and Regulations ................................................ 27
10. Rights Reserved to Landlord .......................................... 27
11. Alterations .......................................................... 28
12. Assignment and Subletting ............................................ 30
13. Waiver of Certain Claims; Indemnity .................................. 36
14. Damage or Destruction by Casualty .................................... 37
15. Eminent Domain ....................................................... 39
16. Default: Landlord's Rights and Remedies .............................. 40
17. Subordination ........................................................ 44
18. Mortgagee Protection ................................................. 44
19. Insurance and Subrogation ............................................ 45
20. Nonwaiver ............................................................ 46
21. Estoppel Certificate ................................................. 46
22. Authority ............................................................ 47
23. Real Estate Brokers .................................................. 48
24. Notices .............................................................. 48
25. Miscellaneous ........................................................ 49
26. Quiet Enjoyment ...................................................... 50
27. Building Directory ................................................... 50
28. Good Faith and Reasonableness ........................................ 50
(i)
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Page
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29. Landlord's Default and Tenant's Remedies ............................. 51
30. Title and Covenant Against Liens ..................................... 52
31. Secured Area ......................................................... 53
32. Bankruptcy or Insolvency ............................................. 53
33. Environmental Matters ................................................ 55
34. Exculpatory Provisions ............................................... 56
35. Scheduled Commencement Date .......................................... 58
36. Option to Extend ..................................................... 60
37. Tenant Improvement Allowance ......................................... 61
38. Existing Leases ...................................................... 64
39. Pre-Occupancy Expansion Space ........................................ 65
40. Project Identification; Address ...................................... 67
41. Escalators ........................................................... 70
42. Pedestrian Tunnel .................................................... 70
43. Display/Mini-theater Area, Security Desk
Console and Lobby .................................................. 71
44. Post-Occupancy Expansion Space ....................................... 72
45. Right of First Offer ................................................. 76
46. Termination Option ................................................... 80
47. Participation in Net Cash Flow and Proceeds
of Sale and Refinancing ............................................ 81
48. Parking .............................................................. 85
49. Antenna/Satellite Dish ............................................... 86
50. Existing Tenant Vacation; Commencement of
Construction; Termination Payment;
Schedule Advancement; Failure to Meet
Low-Rise Access Date ............................................... 88
51. Low-Rise Access Date; Substantial
Completion; Termination Payment .................................... 90
52. Financing Contingency ................................................ 94
53. Design Approval; South Tower ......................................... 94
54. Restrictions on Other Building Leases ................................ 96
55. Personal Guaranty; Letter of Credit .................................. 97
(ii)
4
Page
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56. Cooperation on Leasing Other Space ................................... 99
57. Landlord's Assignment Rights ......................................... 99
58. Delay ................................................................ 100
59. Schedule ............................................................. 100
60. Rights Personal to Chicago Title and Trust
Company ............................................................ 100
61. Market Rental Rate ................................................... 100
62. Landlord's Construction .............................................. 102
63. Kitchen Facilities ................................................... 102
64. Future Rights to Lease Vault Space ................................... 104
65. Determination By Arbitration ......................................... 107
66. Top Floor ............................................................ 108
67. Confidentiality ...................................................... 108
68. Short Form of Lease .................................................. 108
EXHIBITS
EXHIBIT A LEGAL DESCRIPTION
EXHIBIT B INTENTIONALLY DELETED
EXHIBIT C RULES AND REGULATIONS
EXHIBIT D CLEANING SPECIFICATIONS
EXHIBIT E TENANT'S PERFORMANCE OF THE WORK
EXHIBIT F ADDITIONAL VAULT SPACE
EXHIBIT G INTENTIONALLY DELETED
EXHIBIT H LOADING DOCK BAY
EXHIBIT I SHORT FORM LEASE
ATTACHMENTS
Attachment 1 Location of Vault Space
Attachment 2 Access Date Specifications
Attachment 3 Escalator Models
Attachment 4 BOMA Standards
Attachment 5 Signage/Tenant Identification
Attachment 6 Building Perspective Rendering and Lobby
Perspective Rendering
Attachment 7 Intentionally Deleted
Attachment 8 Display/Mini-Theater Area
Attachment 9 Location of Initial Reserved Parking Spaces
Attachment 10 Schematic Drawings
Attachment 11 Outline Specifications
Attachment 12 Approved Retail Uses
Attachment 13 Time Schedule
Attachment 14 Personal Guaranty
Attachment 15 Force Majeure
Attachment 16 Typical Wall Detail For Four Buildings
Attachment 17 Special Measurement
Attachment 18 Pre-Construction Allowance
Attachment 19 Form of Letter of Credit
Attachment 20 Location of Lobby Space
Attachment 21 Examples of Proportionate Shares Using
Measurements A and B
(iii)
5
For convenience of reference only the following is a schedule of some of the
defined terms used in the following lease and where those terms are initially
defined.
Schedule of Defined Terms Section
------------------------- -------
"30 North Lease" 38
"Additional Rent Deposit" 2(b)(ii)
"Additional Rent Projection" 2(c)(i)
"Additional Rent" 2
"Additional Vault Space Commencement Date" 64(b)
"Additional Vault Space" 64(a)
"Adjustment Date" 2
"Adjustment Year" 2
"Affiliate" 12
"after-hours" 5
"All risk" 19
"as is" 12(c)
"Availability Notice" 45(b)
"Available for Leasing" 64(b)
"Available for Leasing" 45
"BOMA Standards" 2a
"Bankruptcy Code" 32
"Base Rent" 1
"Beneficial Xxxxxxxxx" 00
"Xxxxxxxx Xxxxxxx" 00x
"Xxxxxxxx" 0
"cash stations" 54(c)
"CERCLA" 33b(i)
"CT&T Participation" 47(a)
"CT&T Percentage" 47a
"Chicago Commerce Center" 40(b)
"Chicago Title and Trust Company" 40(b)
"Commencement Date" 35
"Commencement of construction" 50(b)
"Construction Termination Payment" 50(c)
"Consumer Price Index" 2(b)(8)
"control" 12(e)
"Current Lease" 45(i)
"Default" 16(a)
"Deposit" 52(c)
"Developed Space" 12
"Development Partnership" 46(f)
"Entire Development" 408
"Environmental Laws" 33b(ii)
"Equis" 23
"Escrow Agreement" 52b
"Escrow" 52b
"Escrowee" 52b
"Estimated T/I Cost" 37(c)
"Excess T/I Cost" 37(c)
"Existing Leases" 38
"Existing Tenant Vacation Termination Payment" 50(a)
"Expense Adjustment" 2(b)(ii)
"Expenses" 2
"Expiration Date" 1
"Financial Services" 54(c)
(iv)
6
Schedule of Defined Terms Section
------------------------- -------
"Financially Responsible" 12a
"First Expansion Option" 44
"First Expansion Space" 44a
"First Mortgage" 17(a)
"First Mortgagee" 17(a)
"First Offer Notice" 45(a)
"First Offer Period" 45(i)
"First Offer Space Commencement Date" 45(a)
"First Offer Space" 45
"Force Majeure" 42(c)
"Garage" 1(a)
"Ground Lease" 17(a)
"Ground Lessor" 17(a)
"Hazardous Substances" 33a(i)
"High-Rise Access Date" 35
"High-Rise Commencement Date" 35
"High-Rise Rent Commencement Date" 1
"Holdover Costs" 51(g)
"Holidays" 5(a)
"Incurred" 2a
"Informational Letter" 50(b)
"Initial Office Premises" 1
"Initial Premises" 1
"Insolvency" 32b
"Installation Area" 49
"Kitchen Facilities" 3
"Land" 1
"Landlord" 1
"Landlord Delay" 51a
"Landlord's Allowance" 37
"Landlord's Expense Statement" 2(d)(i)
"Landlord's Tax Statement" 2(d)(ii)
"Landlord's partnership interest" 47(b)
"Lease Termination Payment" 46(b)
"Lease Year" 1
"Leftover Space 44
"Letter of Credit" 55(a)
"Linpro" 47(a)
"Linpro Affiliate" 47(b)
"Loading Dock Bay" 5(k)
"Lobby Space" 1
"Lobby Termination Date" 46(f)
"Lobby Termination Notice" 46(f)
"Low-Rise Access Date" 35
"Low-Rise Commencement Date" 35
"Low-Rise Rent Commencement Date" 1
"Market Rental Rate" 61(a)
"Marketing Period" 45(a)
"Measurement A" 2a
"Measurement X" 0x
"Monthly Base Rent" 1
"Mortgage" 17(a)
"Mortgagee" 17(a)
"Net Cash Flow" 47a
"Neutral" 40b
"Non-Use" 43a
"Nonsignificant Portion" 00x
"Xxxxx Xxxxx" 40(a)
"Office Premises" 1
"Opening Year" 2(f)
(v)
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Schedule of Defined Terms Section
------------------------- -------
"Option Period" 36
"Original Office Space" 1
"Original Premises" 1
"Original Vault Space" 11
"Outside Access Date" 51(b)
"Outside Date" 51(a)
"Payment Determination Date" 46(b)
"Personal Guaranty" 55(a)
"Phase One" 40(a)
"Phase Two" 40(a)
"Pollutant or Contaminant" 33b(i)
"Post-Occupancy Expansion Notice" 39(a)
"Post-Occupancy Expansion Option" 44
"Post-Occupancy Expansion Space Commencement Date" 44(b)
"Post-Occupancy Expansion Space" 44
"Pre-Construction Allowance" 37b
"Pre-Occupancy Expansion Space" 39
"Pre-Occupancy Vault Space" 1
"Premises" 1
"Prime Plus Rate" 25g
"Proceeds" 47a
"Project" 2a
"Project Architect" 1
"Projection Notice" 2(c)(i)
"Projections" 2(c)(i)
"Real Property" 2(a)
"Recapture Period" 12(c)
"Recaptured Space" 12(c)
"Release Date" 12(f)
"Release Request" 12(f)
"Released Space" 12(f)
"Rent" 1
"Rentable Area" 2(a)
"Rentable Area of the Building" 2a
"Rentable Area of the Vault Space" 64b
"Rentable Premises" 1
"XXXX" 33b(i)
"Second Expansion Option" 44
"Second Expansion Space" 00x
"Xxxxxxx Xxxx" 00x
"Xxxxx Xxxxx" 40(a)
"Substantial completion" 35
"Substantial Portion of the Premises 14c
"Tax Adjustment" 2(b)(i)
"Tax and Expense Cap" 2(b)
"Taxes" 2a
"Tenant Improvements" Ex. E & ss. 37
"Tenant" 1
"Tenant's Management Fee" 2(b)
"Tenant's Proportionate Share" 2a
"Tenant's Space Planner" 1
"Term" 1
"Termination Date" 46(a)
"Termination Notice" 46(a)
"Third Expansion Option" 44
"Third Expansion Space" 44a
"title insurance" 40(c)
"Top Xxxxx" 0
(vi)
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Schedule of Defined Terms Section
------------------------- -------
"Tower" 40(b)
"Undeveloped Space" 12(c)
"Vault Availability Notice" 64(b)
"Vault Offer Notice" 64(b)
"Vault Offer Period" 64(b)
"Vault Space" 1
"Vertical Penetrations" 2a
"Window Period" 44b
"Work" 37
(vii)
9
LEASE
THIS LEASE is made as of the 24th day of July, 1989, by and between LINPRO
CHICAGO LAND LIMITED PARTNERSHIP, an Illinois limited partnership ("Landlord"),
and CHICAGO TITLE AND TRUST COMPANY, an Illinois corporation ("Tenant"). For
convenience of reference only, attached to the beginning of this lease is a
Schedule of defined terms used in this lease and the Section in which those
terms are initially defined. All defined terms used herein shall have the
meanings ascribed to them in the Section identified in the aforereferenced
Schedule.
W I T N E S S E T H:
WHEREAS, Landlord owns the Land (defined below);
WHEREAS, Landlord proposes to construct on the Land an office building
containing at least forty (40) stories above street level and approximately
950,000 square feet of rentable area in accordance with and subject to the terms
and provisions of this lease; and
WHEREAS, Landlord and Tenant desire to enter into this lease;
NOW, THEREFORE, for and in consideration of the covenants and agreements
herein contained, Landlord and Tenant covenant and agree as follows:
1. Premises, Term and Base Rent.
(a) Premises and Term. Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Premises defined in the next paragraph in the
office building (the "Building") to be located on the west half of the block
bounded by Clark, Randolph, Lake and Dearborn Streets in Xxxxxxx, Xxxxxxxx
00000, which real estate (the "Land") is depicted on Exhibit A attached hereto
and made a part hereof (which Land does not include the North Tower [Phase
Two]), together with the right to use in common with other tenants the
entrances, hallways, corridors, lobbies, rotunda, public lavatories, elevators,
escalators, stairways, loading docks and other common areas and the license to
use the mini-theater area and security desk as described in Section 43 hereof
and the Loading Dock Bay described in Section 5(k) hereof, for a term ("Term")
commencing on the Low-Rise Commencement Date and ending on the last day of the
month prior to the month in which the twentieth (20th) anniversary date of the
Low-Rise Commencement Date occurs, subject to extension as provided in Section
35 (the "Expiration Date"), unless sooner terminated as provided herein, paying
as rent therefor the sums hereinafter provided, without any setoff, abatement,
counterclaim or deduction whatsoever, except as otherwise expressly permitted
herein. The Term with respect to all space leased by Tenant in the Building,
including, without limitation, Pre-Occupancy Expansion Space, Post-Occupancy
Expansion Space, First Offer Space, Vault Space and Lobby Space shall end on the
same date as the termination date for the lease of the Initial Premises, as
extended, subject to earlier termination as provided in this lease.
10
Initially, the Premises shall consist of (i) office space on floors 2
through 9 and part of floor 10 of the low-rise portion of the Building and the
top floor (the "Top Floor") of the high rise portion of the Building which,
based on existing design plans for the Building, are estimated to contain a
total of approximately 248,000 square feet of Rentable Area, (ii) vault space on
lover level III of the Building which, based on existing design plans for the
Building, is estimated to contain approximately a total of 13,500 square feet of
Rentable Area and (iii) space in the lobby of the Building ("Lobby Space")
which, based on existing design plans for the Building, is estimated to contain
a total of approximately 1500 square feet of useable area, all of the foregoing
as shown in the schematic drawings attached as Attachment 10.
Notwithstanding anything herein to the contrary, the Top Floor will
contain not more than one hundred five percent (105%) nor less than ninety
percent (90%) of the gross floor area shown on the schematic drawings as
Attachment 10 for the Top Floor and each of the low-rise floors of the Building
will contain not more than one hundred five percent (105%) nor less than
ninety-five percent (95%) of the gross floor area shown in the schematic
drawings attached hereto as Attachment 10 for such floor, except floor 2 is not
less than 89% and floor 3 is not less than 92% and except as specifically
permitted with respect to Post-Occupancy Expansion Space described in Section
44. The Building will contain not less than forty (40) stories above street
level. The configuration, location and size of the Vault Space as shown in
Attachment 1 and in the schematic drawings attached hereto as Attachment 10 may
be changed by Landlord prior to the date that is six (6) months after the
commencement of construction of the Building to accommodate physical conditions
and Building engineering and structural requirements, so long as the Vault Space
is one contiguous block of space on one level, is contiguous to the parking
garage forming a part of the Building (the "Garage"), is served by the low-rise
passenger elevator, freight elevator and garage elevator in the general location
shown on Attachment 1 hereto and the aggregate area of all of the Vault Space is
not reduced by more than ten percent (10%). At such times as the floor plans for
the Building are finalized, but in no event later than the commencement of
construction, Landlord and Tenant shall enter into an amendment to this lease,
which amendment shall have copies of the floor plans attached and the precise
location of the Original Premises shall be designated thereon.
When construction of the core and shell of the Building has progressed
sufficiently to allow computation of the actual Rentable Area or useable square
feet, as appropriate, contained in each of the components of the Premises and in
the Building, and Tenant's Proportionate Share, Landlord's architect for the
construction of the Building (the "Project Architect") and the space planner
retained by Tenant to design and supervise construction of the Premises
("Tenant's Space Planner") shall independently determine, in accordance with the
provisions of this lease, the Rentable Area or useable square feet, as
appropriate, contained in each of the components of the Premises and in the
Building and Tenant's Proportionate Share, and shall each promptly furnish such
determinations to Landlord and Tenant and supply to Landlord and Tenant all
computations, measurements, plans and other back-up information. In the event
the Project Architect and Tenant's Space Planner do not make the same
determination of the Rentable Area or useable
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square feet, as appropriate, contained in any of the components of the Premises
or in the Building, or Tenant's Proportionate Share, such number(s) shall be
determined by arbitration in accordance with Section 65 hereof. The losing party
(or the party further from the arbitrator's determined number) shall pay the
costs of arbitration. The determinations of Rentable Area or useable square
feet, as appropriate, or Tenant's Proportionate Share arrived at pursuant to
this Section 1(a) shall be final and binding on Landlord and Tenant for all
purposes under this lease including, without limitation, the calculation of Base
Rent and Additional Rent. If (x) the size, configuration or location of the
Vault Space is changed from that shown in the schematic drawings attached hereto
as Attachment 10, or (y) the Rentable Area or useable square feet, as the case
may be, of the Building, or any portion of the Premises is determined to be
different than that set forth above and on the Exhibits attached hereto, or (z)
Tenant's Proportionate Share is changed in accordance with the foregoing then
within ten (10) days after either party's request, both parties shall confirm
such change in an amendment to this lease.
All office space leased as of the date hereof is referred to as "Original
Office Space". All Vault Space leased as of the date hereof is referred to as
"Original Vault Space". Original Office Space and Original Vault Space is
referred to herein as the "Original Premises". Original Office Space and
Pre-Occupancy Expansion Space is referred to herein as "Initial Office
Premises". Initial Office Premises, Lobby Space, Original Vault Space and Vault
Space other than Original Vault Space leased by Tenant prior to the Low-Rise
Commencement Date are collectively called "Initial Premises". All office space
being leased by Tenant from time to time pursuant to the terms hereof is
referred to herein as "Office Premises". All vault space being leased by Tenant
from time to time pursuant to the terms hereof is referred to herein as "Vault
Space". The Office Premises, and the Vault Space, together with all Lobby Space
leased by Tenant from time to time pursuant to the terms hereof is referred to
herein as "Premises". The Premises exclusive of the Vault Space is referred to
herein as the "Rentable Premises".
Tenant shall have the full use, on each single-tenant floor of the
low-rise portion of the Office Premises, of that portion of the central core
thereof depicted on Attachment 17, in addition to the other areas Tenant is
entitled to use pursuant to this Section 1(a) on all single-tenant floors in the
low-rise, mid-rise and high-rise portions of the Building.
(b) Base Rent. Tenant shall pay annual base rent ("Base Rent") to
Landlord for the Premises as hereinafter set forth, payable in equal monthly
installments ("Monthly Base Rent") in advance on the Low-Rise Rent Commencement
Date and High-Rise Rent Commencement Date, as the case may be, and on the first
day of each calendar month thereafter of the Term, except as hereinafter
provided. If the Low-Rise Rent Commencement Date shall be any date except the
first day of a calendar month, then Monthly Base Rent for such partial calendar
month shall be prorated based on the Base Rent for the first Lease Year. If the
High-Rise Rent Commencement Date shall be any date except the first day of a
calendar month, or if the Term shall end on any day except the last day of a
calendar month, then Monthly Base Rent for any such partial calendar month shall
be prorated based on the Base Rent for the then current Lease Year.
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Base Rent for the Initial Premises (other than the Top Floor) shall
commence on the Low-Rise Rent Commencement Date, except for space described in
Section 35 whose occupancy and Rent may be deferred to October 1, 1993. Base
Rent per square foot of Rentable Area (as determined pursuant to Section 1(a))
per year for the Original Office Space, exclusive of the Top Floor, for the
initial Term will be:
Lease Years Base Rent
----------- ---------
Lease Years 1 - 4 $16.50
Lease Years 5 - 8 $19.50
Lease Years 9 - 12 $22.50
Lease Years 13 - 16 $25.50
Lease Years 17 - 20 $28.50
As used herein the term "Lease Year" shall mean each twelve-month period
falling within the Term commencing on the first day of the calendar month in
which the Low-Rise Rent Commencement Date occurs or an anniversary of the first
day of the calendar month in which the Low-Rise Rent Commencement Date occurs.
Base Rent for the Top Floor will commence on the High-Rise Rent
Commencement Date. Base Rent per square foot of Rentable Area per year for the
Top Floor for the initial Term will be:
Lease Years Base Rent
----------- ---------
Lease Years 1 - 4 $18.50
Lease Years 5 - 8 $22.50
Lease Years 9 - 12 $26.50
Lease Years 13 - 16 $30.50
Lease Years 17 - 20 $34.50
In lieu of the Base Rent schedule stated above for the Top Floor, Tenant may, by
notice to Landlord before the end of the eighteenth (18th) month prior to the
Low-Rise Commencement Date (as then determined based on the Low-Rise Access
Date), elect to fix rent for the initial Term at ninety-two percent (92%) of the
Market Rental Rate for terms comparable to the Term for space comparable to the
Top Floor commencing on the High-Rise Commencement Date. In advance of such date
Tenant may request a determination of the Market Rental Rate. If the parties
hereto cannot agree on the Market Rental Rate, such Rate shall be determined in
accordance with the provisions of Section 61(b) hereof. If actual Base Rent for
the Top Floor is ultimately determined by reference to the Market Rental Rate as
aforesaid, then the amount of tenant improvement allowance, if any, the formula
for measuring Rentable Area and all other economic concessions granted in this
lease with respect to the Top Floor will be governed by the Market Rental Rate.
Base Rent for the Original Vault Space will be Twelve Dollars ($12.00) per
square foot of Rentable Area per year for the initial Term; Tenant shall not be
obligated to pay any Additional Rent with respect to the Vault Space.
For the first Lease Year, Base Rent for the Lobby Space will be the sum of
(i) Twenty-Four and 50/100 Dollars ($24.50)
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per square foot of useable area, plus (ii) Ten and 00/100 Dollars ($10.00) per
square foot of useable area. Each Lease Year thereafter, Base Rent for the Lobby
Space shall be increased by the sum of (x) seventy-four cents ($.74), plus (y)
thirty-five cents ($.35) per annum per square foot of useable space. The
payments described in (ii) and (y) of this paragraph are to be paid by Tenant in
lieu of any payment for Taxes and Expenses allocable to the Lobby Space.
For the first Lease Year Tenant shall pay Base Rent for its exclusive
license to use the Loading Dock Bay, as described in Section 5(k) hereof, in the
amount of $17,500.00. Each Lease Year thereafter, Base Rent for the Loading Dock
Bay shall be increased by $500.00. Tenant shall have no obligation to pay any
Taxes or Expenses allocable to the Loading Dock Bay.
Tenant shall be entitled to occupy the Initial Premises, exclusive of the
Top Floor, on the Low-Rise Commencement Date and begin payment of Rent for such
space thirty (30) days after the Low-Rise Commencement Date ("Low-Rise Rent
Commencement Date"), except that Tenant may defer occupancy of forty-six
thousand (46,000) square feet of Rentable Area in the low-rise portion of the
Building and payment of Rent on such space until October 1, 1993, if by February
1, 1992, Tenant has leased at least seventy percent (70%) of one (1) floor of
Pre-Occupancy Expansion Space. Tenant shall be entitled to occupy the Top Floor
and obligated to begin payment of Rent on the Top Floor thirty (30) days after
the High-Rise Commencement Date (the "High-Rise Rent Commencement Date").
Base Rent, Additional Rent, Additional Rent Deposits and all other amounts
becoming due from Tenant to Landlord hereunder (collectively the "Rent") shall
be paid in lawful money of the United States to Landlord c/o The Linpro Company,
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 or as otherwise
designated from time to time by written notice from Landlord to Tenant.
Within thirty (30) days after each of the Low-Rise Rent Commencement Date
and the High-Rise Rent Commencement Date, or at such earlier times as such dates
can be confirmed, Landlord and Tenant shall enter into a written amendment(s) to
this lease confirming such dates.
2. Additional Rent. In addition to paying the Base Rent specified in
Section 1 hereof, Tenant shall pay to Landlord as additional rent the amounts
(collectively called "Additional Rent") determined in accordance with this
Section 2:
(a) Definitions. As used in this lease the following terms shall
have the following meanings:
(i) "Adjustment Date" shall mean the first day of the Term and
each January 1 thereafter falling within the Term.
(ii) "Adjustment Year" shall mean each calendar year during
which an Adjustment Date falls.
(iii) "Expenses" shall mean those normal and reasonable costs
and expenses paid or incurred (i.e., those costs and expenses for which invoices
have been received and which are payable during the Adjustment Year in question
or no later than forty-five (45) days after the end of the Adjustment
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Year with respect to which such items are being included in Expenses) by or on
behalf of Landlord (determined using generally accepted accounting principles
consistently applied based upon information contained in annual certified audits
for the calendar years in which such costs and expenses were paid or incurred
and reduced by any discount, allowance and reimbursement received by or on
behalf of Landlord) for owning, managing, operating, maintaining and repairing
the Building, the land upon which the Building stands (the "Land") and the
personal property used in conjunction therewith (said Building, Land and
personalty herein collectively called the Project") (or allocated to the Project
under easement agreements, operating agreements, parking agreements,
declarations, covenants or instruments providing for easements, the sharing of
facilities or payment for services in, on or under the Land) including without
limitation: the cost of maintaining adjoining pedestrian tunnels and walkways
and related lighting, the cost of security and security devices and systems,
snow and ice and trash removal, cleaning and sweeping, planting decorations,
flowers and landscaping, maintenance and repair of utility systems, telephone
building riser cable, elevators and escalators; electricity, gas, steam, water
sewers, fuel, heating, lighting, air conditioning; window cleaning; janitorial
service; insurance (including but not limited to, fire, extended coverage, all
risk, liability, worker's compensation, elevator, or any other insurance carried
by the Landlord and applicable to the Project), painting; uniforms; management
fees; supplies, sundries; sales or use taxes on supplies or services; permits
and similar fees and charges related to the ownership, management, operation,
repair and maintenance of the Project (but excluding permit and similar fees and
charges incurred in connection with work in any tenant space) the share of costs
and expenses allocated to the Building and the Land relating to the management,
maintenance, operation and repair of any common lobby or other facilities
connecting the Building or any of its facilities to any other adjoining
building, facilities or land; cost of wages and salaries of all persons engaged
in the operation, management, maintenance and repair of the Project, and so-
called fringe benefits (including social security taxes, unemployment insurance
taxes, cost for providing coverage for disability benefits, cost of any
pensions, hospitalization, welfare or retirement plans, or any other similar or
like expenses incurred under the provisions of any collective bargaining
agreement, or any other cost or expense which Landlord pays or incurs to provide
benefits for employees so engaged in the operation, management, maintenance and
repair of the Project); the charges of any independent contractor who, under
contract with the Landlord or its representatives, does any of the work of
operating, managing, maintaining or repairing of the Project; legal and
accounting expenses (including, but not limited to, such expenses as relate to
seeking or obtaining reductions in and refunds of real estate taxes); sales and
excise taxes; or any other expense or charge which would be considered as an
expense of owning, managing, operating, maintaining or repairing the Project,
whether or not the expense may be considered a capital improvement except as
hereinafter provided. Items included in Expenses for an Adjustment Year because
"incurred" with respect to such Adjustment Year as provided aforesaid shall not
be included in Expenses for any subsequent Adjustment Year when paid.
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Expenses shall not include the following:
1. Costs or other items included within the meaning of the term
"Taxes" (as hereinafter defined);
2. Costs of renovating or otherwise improving or decorating,
painting and redecorating space for tenants or other occupants of the Building,
and any architectural, legal and engineering costs occasioned thereby;
3. Costs of alterations and relocations of the premises of tenants
of the Building;
4. Costs of a capital nature, including, but not limited to, capital
improvements, capital repairs, capital equipment and capital tools which, under
generally accepted accounting principles, are not regarded as operating or
maintenance expenses, but not excluding capital improvements set forth below;
5. Depreciation and amortization, except as hereafter provided;
6. Interest on debt or amortization payments on mortgages and ground
rental payments;
7. Legal fees in connection with disputes with tenants (excepting
legal fees in seeking to enforce Building rules and regulations);
8. Fines and penalties on late payments and penalty charges incurred
by Landlord due to the violation of any law;
9. Real estate brokerage and leasing commissions and any other costs
and expenses incurred in connection with leasing;
10. Advertising and promotional expenditures;
11. Any expenditures for which Landlord has been reimbursed by
tenants (other than pursuant to rent escalation or tax and operating expense
reimbursement provisions in leases);
12. Repairs or other work occasioned by fire, windstorm or other
casualty of an insurable nature or by the exercise of eminent domain;
13. Landlord's cost of electricity and other services that are sold
to tenants and for which Landlord is entitled to be reimbursed by tenants as an
additional charge or rental over and above the basic rent payable under the
lease with such tenant payable on account of said cost of electricity and other
services;
14. Expenses in connection with any service or other benefits of a
type which are not provided to Tenant pursuant to the express provisions hereof
but which are provided to another tenant or occupant;
15. Costs incurred due to violation by Landlord of the terms and
conditions of any lease;
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16
16. Overhead and profit increment paid to subsidiaries or affiliates
of Landlord for services on or to the Building, to the extent only that the
costs of such services exceed the competitive cost of such services were they
not so rendered by such subsidiary or affiliate;
17. Landlord's general overhead;
18. Any compensation paid to clerks, attendants, or other persons in
commercial concessions operated by Landlord;
19. All items and services for which Tenant directly reimburses
Landlord or pays third persons;
20. Management fees;
21. Costs for acquisition of sculpture, paintings, or other objects
of art;
22. Wages, salaries, or other compensation paid to any executive
employees of Landlord or Landlord's beneficiary above the grade of building
manager;
23. Rentals and other related expenses incurred in leasing air
conditioning systems, elevators or other equipment ordinarily considered to be
of a capital nature, except equipment which is used to provide janitorial
services and which is not permanently affixed to the Building;
24. Title insurance, automobile insurance, key man and other life
insurance, long-term disability insurance and health, accident and sickness
insurance, except only for group plans providing reasonable benefits to persons
of the grade of building manager and below employed and engaged on a
substantially full time basis in operating and managing the Building;
25. Costs and expenses incurred by Landlord in performance of its
obligations under Section 33 of this lease, except those incidental costs
normally incurred in cleaning the Building without regard to Environmental laws;
26. Premiums under physical damage insurance policies insuring the
Building which are attributable or allocable to coverage of improvements and
betterments to space for tenants or other occupants of the Building necessitated
by the specific needs of such tenants or occupants;
27. Costs of correcting defects in the initial construction of the
Building; provided, however, that the foregoing shall be deemed not to include
costs of repairs required because of ordinary wear and tear;
28. Costs incurred in the operation of the Garage; and
29. Costs incurred only in connection with the retail space.
Notwithstanding anything contained in the above definition of Expenses to
the contrary:
(A) The annual amortization of the cost of any capital improvements
to the Building made after the date of
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17
this lease which reduce Expenses (provided that the amount of principal and
interest included in Expenses in any year pursuant hereto shall not exceed the
reduction in Expenses resulting from such capital improvement in such year) and
the annual amortization of the cost of those capital improvements made after the
Commencement Date which are required under any governmental laws, regulations,
or ordinances constituting new legislation not enacted or applicable to the
Building prior to the Commencement Date, amortized in accordance with generally
accepted accounting principles shall be included in Expenses; provided, however,
in the event that in calculating expenses for any other tenant in the Building
during the period prior to the fifth (5th) anniversary of the Commencement Date
any capital improvements (or the annual amortization thereof) required by any
law, regulation or ordinance constituting new legislation not enacted or
applicable to the Building prior to the commencement date of such tenant's lease
are excluded, such capital improvements (or the annual amortization thereof, as
the case may be) shall be excluded from Expenses hereunder. If Landlord shall
lease such item of capital equipment, then the rentals or other operating costs
paid pursuant to such leasing shall be included in Expenses for each year in
which they are paid or incurred. In any Adjustment Year, the portion includible
in Expenses shall be the annual amortization of such cost using as the
amortization period such period as is provided for in accordance with generally
accepted accounting principles, together with interest on the unamortized cost
of any such improvements at the prevailing rate available to Landlord for a
capital improvement loan on the date the cost of such improvements was incurred.
(B) If (x) the office area of the Building is not fully occupied by
tenants during all or a portion of any Adjustment Year or (y) Landlord is not
furnishing cleaning and janitorial service or energy for HVAC service (the cost
of which, if performed by Landlord, would be included in Expenses) to a tenant
in the Building who has undertaken to perform such work or service in lieu of
the performance thereof by Landlord, then Landlord may elect to make an
appropriate adjustment in the cleaning (including, supplies) and janitorial cost
component of Expenses and in the energy for HVAC and elevator cost components of
Expenses for the year, by adjusting the cleaning (including, supplies) and
janitorial and energy for HVAC and elevator cost components of Expenses which
vary with the occupancy level of the Building, to reflect the Expenses that
would have been paid or incurred by Landlord for such year had the office area
of the Building been fully occupied by tenants during such entire Adjustment
Year or had such work or service been provided to such tenant, employing sound
accounting and management principles.
(C) If any item of Expenses, though paid or incurred in one calendar
year, relates to more than one calendar year, such item will be proportionately
allocated among such related calendar years.
(iv) "Taxes" shall mean real estate taxes, assessments
(whether they be general or special), sewer rents, rates and charges (to the
extent not included as Expenses), taxes based upon leases or the receipt of
rent, and any other federal, state or local governmental charge, general,
special ordinary or extraordinary (but not including income or franchise taxes
or any other taxes imposed upon or measured by
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the Landlord's income or profits, except as provided herein), which may now or
hereafter be levied, assessed or imposed against the Land or the Building or
Landlord as a result of its ownership of the Real Property. The Building and the
Land are herein collectively called the "Real Property". Taxes shall not include
any penalties or interest paid by reason of delinquencies in payment of any item
of Taxes.
Notwithstanding anything contained in the above definition of Taxes to the
contrary:
(A) If at any time the method of taxation then prevailing shall be
altered so that any new or additional tax, assessment, levy, imposition or
charge or any part thereof shall be imposed upon Landlord in place or partly in
place of any Taxes or contemplated increase therein, or in addition to Taxes,
and shall be measured by or be based in whole or in part upon the Real Property,
the rents or other income therefrom or any leases of any part thereof, then all
such new taxes, assessments, levies, impositions or charges or part thereof, to
the extent that they are so measured or based, shall be included in Taxes
levied, assessed or imposed against the Real Property to the extent that such
items would be payable if the Real Property were the only property of Landlord.
(B) Notwithstanding the year for which any such Taxes or assessments
are levied, in the case of special taxes or assessments which may be payable in
installments, the amount of each installment, plus any interest payable thereon,
paid during an Adjustment Year shall be included in Taxes for that year. All
references to Taxes "for" a particular Adjustment Year shall be deemed to refer
to Taxes levied or assessed during such Adjustment Year without regard to when
such Taxes are due and payable. Refunds of Taxes shall be deducted from Taxes
for the year with respect to which such Taxes had been originally paid. Landlord
represents that to the best of its knowledge there are no existing or future
special assessments relating to the Real Property.
(C) There shall be excluded from such Taxes any use and occupancy
tax which Landlord may be required by law to collect from Tenant for payment to
any governmental authority, which Tenant shall pay separately to Landlord upon
demand if and to the extent Landlord is required by law to collect such tax for
any such governmental authority.
(v) "Rentable Area of the Building" shall mean the sum of the
areas on all floors of the Building computed by measuring to the center line of
the exterior glass wall on each entire floor, plus portions of mechanical space
and common service and lobby areas in the Building and excluding only public
stairs, elevator shafts, flues, stacks, pipe shafts and vertical ducts
("vertical penetrations"). No deduction shall be made for Building columns or
projections.
(vi) "Rentable Area" shall mean the product of (a) the gross
floor area measured to the centerline of glass less the entire core area
multiplied by (b) 1.08 for the Initial Office Premises ("Measurement A"). In any
event, the Rentable Area of the Initial Office Premises shall not exceed the
number of rentable square feet calculated following the "Standard Method for
Measuring Floor Area in Office Buildings" issued August, 1980 by Building Owners
and Managers Association
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19
International, a copy of which is attached hereto as Attachment 4, subject to
qualifications set forth in Attachment 4 ("BOMA Standards"). The definition of
Rentable Area for all office space leased after February 1, 1992 ("Measurement
B") shall be based on BOMA Standards plus a prorata share of above-grade
centralized mechanical areas (which above-grade centralized mechanical areas
will not include the typical core area [defined in Attachment 17] on a typical
office floor). Where market rental rate determines the calculation of rentable
area, if different than Measurement A or B (whichever would otherwise be
applicable), then the formula used in market rental rate will govern. The
prorata share of above-grade centralized mechanical areas for Measurement B will
be the fraction using the rentable square feet of area to be leased divided by
the area of office space in the Building, in each case using BOMA Standards. No
deduction shall be made for Building columns or projections. The Rentable Area
of the Vault Space shall be calculated pursuant to BOMA Standards as if it were
office space leased after February 1, 1992.
(vii) "Tenant's Proportionate Share" shall mean, for Original
Office Space, Pre-Occupancy Expansion Space and Post-Occupancy Expansion Space,
the sum of the proportionate shares for such space, each expressed as a fraction
whose numerator and denominator are as follows:
(A) For Original Office Space and Pre-Occupancy
Expansion Space using Measurement A.
Numerator = Rentable Area of such space using Measurement/A (Total
--------- Rentable Area of all office space in Premises which uses
Denominator Measurement A) plus (total rentable area of all office space
in the Building [other than office space in the Premises
which uses Measurement A] calculated using BOMA Standards,
multiplied by 1.04)
(B) For Post-Occupancy Expansion Space and First Offer
Space using Measurement B.
Numerator = Rentable Area of such space using Measurement B (Total
--------- Rentable Area of all office space in the Premises which uses
Denominator Measurement A calculated using Measurement B) plus (total
rentable area of all office space in the Building [other
than office space in the Premises which uses Measurement A]
calculated using Measurement B)
Examples of calculations (a) and (b) above are set forth in Attachment 21.
(C) For any office space in the Premises whose rentable
area is not calculated using Measurement A or Measurement B because Market
Rental Rate applied to the rent for such space.
Numerator = Rentable Area of such space using measurement formula which
--------- was part of Market Rental Rate Rentable Area of all office
Denominator space in the Building using measurement formula which was
part of market rental rate
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(b) Computation of Additional Rent. Tenant shall pay as Additional
Rent for each Adjustment Year the following amounts in accordance with Sections
2(c) and 2(d) hereof and subject to Section 2(c)(i)C hereof:
(i) Tenant's Proportionate Share of Taxes for such Adjustment
Year (the "Tax Adjustment"); plus
(ii) Tenant's Proportionate Share of Expenses for such
Adjustment Year (the "Expense Adjustment"); plus
(iii) Tenant's Management Fee which shall be equal to four
percent (4%) of Base Rent from time to time.
Notwithstanding anything herein to the contrary Tenant shall not be obligated to
pay Additional Rent for (x) any part of the Premises for any period prior to the
Low-Rise Rent Commencement Date or (y) the Top Floor for any period prior to the
High-Rise Rent Commencement Date. Tenant's obligation for the Tax Adjustment and
Expense Adjustment with respect to a Lease Year (being Tenant's Proportionate
Share of Taxes and Expenses calculated pursuant to the following paragraph)
shall not exceed the Tax and Expense Cap applicable to such Lease Year. The fact
that such Tax Adjustment for purposes of such limitation is being calculated
using Taxes paid as opposed to Taxes "for" a particular year does not modify
Tenant's obligation to pay Tax Adjustment based on Taxes "for" an Adjustment
Year.
For purposes of this lease, the term "Tax and Expense Cap" shall mean (i)
Six Dollars ($6.00) multiplied by the Rentable Area of the Office Premises for
the first Lease Year; (ii) Ten Dollars ($10.00) multiplied by the Rentable Area
of the Office Premises for the second Lease Year; and (iii) Sixteen Dollars
($16.00) multiplied by the Rentable Area of the Office Premises for the third
Lease Year; provided that in the event that tenants occupy sixty percent (60%)
of the Rentable Area of the Building at any time during the second Lease Year,
the Tax and Expense Cap for the third Lease Year shall be Sixteen and 80/100
Dollars ($16.80) multiplied by the Rentable Area of the Office Premises, and in
the event that tenants occupy eighty percent (80%) of the Rentable Area of the
Building at any time during the second Lease Year, the Tax and Expense Cap for
the third Lease Year shall be Seventeen and 60/100 Dollars ($17.60) multiplied
by the Rentable Area of the Office Premises. In determining whether the Tax and
Expense Cap has been exceeded for any Lease Year, Taxes and Expenses to be used
for the Lease Year in question shall be calculated in accordance with the
following:
(1) Taxes paid during a Lease Year which does not begin on a January 1
shall be deemed to be the sum of the following:
Taxes actually paid during the Adjustment Year during which the
Lease Year commences
X number of days in the Lease Year falling within such
Adjustment Year
----------------------------------------------------
Number of days in such Adjustment Year
plus
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Taxes actually paid during the Adjustment Year during which the
Lease Year ends
X number of days in the Lease Year falling within such
Adjustment Year
----------------------------------------------------
Number of days in such Adjustment Year
(2) Expenses for a Lease Year which does not begin on a January 1 shall
be deemed to be the sum of the following:
Expenses for the Adjustment Year during which the Lease Year
commences
X number of days in the Lease Year falling within such
Adjustment Year
----------------------------------------------------
Number of days in such Adjustment Year
plus
Expenses for the Adjustment Year during which the Lease Year ends
X number of days in the Lease Year falling within such
Adjustment Year
----------------------------------------------------
Number of days in such Adjustment Year
(c) Payments of Additional Rent; Additional Rent Deposit;
Projections. Tenant shall pay Additional Rent to Landlord in the manner
hereinafter provided.
(i) Tax Adjustment and Expense Adjustment. The aggregate of payments
required to be made by Tenant on account of Tax Adjustment and Expense
Adjustment for any Adjustment Year until the actual Tax Adjustment and
Expense Adjustment for such Adjustment Year are determined is herein
called "Additional Rent Deposit".
(A) Landlord may, at any time and from time to time prior to
each Adjustment Date and from time to time during or after the
Adjustment Year in which such Adjustment Date falls, but not more
than three times for each Adjustment Year, deliver to Tenant a
written notice or notices ("Projection Notice") setting forth (1)
Landlord's reasonable estimates, forecasts or detailed (consisting
of, among other things, reasonable line-item detail, including
delineation of all line items of Taxes (but only if Tenant is paying
Taxes on a monthly basis) and Expenses in excess of $100,000 for the
Building as a whole) projections (collectively, the "Projections")
of Taxes or Expenses for such Adjustment Year, and (2) Tenant's
Additional Rent Deposit (setting forth the Expense Adjustment
component and Tax Adjustment component separately), being Tenant's
Proportionate Share of the Projections, taking into consideration
any limitation imposed by the Tax and Expense Cap. Tenant may
request and Landlord shall allow Tenant to review, in Landlord's
management office, Landlord's back-up information and bids used in
arriving at the Projections. Notwithstanding any Projections set
forth herein or in any Projection Notice furnished to Tenant by
Landlord, Landlord does not thereby make any representations or
warranties as
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22
to actual amounts of Tax Adjustment and Expense Adjustment for any
such Adjustment Year, which actual amounts may be higher or lower
than said Projections. In the event the Projections are higher than
those for the prior Adjustment Year by $100,000 or more for any
individual item for the Building as a whole included within the
Projections, Tenant may, by written notice to Landlord within sixty
days of Tenant's receipt of the Projection Notice, contest
Landlord's determination of the Projections, whereupon the
Projections and the Additional Rent Deposit shall be finally
determined by arbitration in accordance with Section 65 hereof.
Tenant shall include in such written notice its reasons for so
objecting to the Projections. Pending resolution as stated
aforesaid, Tenant shall pay the contested item of Taxes and/or
Expenses based upon the Tax Adjustment and Expense Adjustment
figures for such contested item for the prior Adjustment Year.
(B) On or before the first day of the next calendar month
following Landlord's service of a Projection Notice, and on or
before the first day of each month thereafter, Tenant shall pay to
Landlord, at the time and in the same manner as payment of Base
Rent, one-twelfth (1/12) of the Additional Rent Deposit shown in the
Projection Notice. Within thirty (30) days following Landlord's
service of a Projection Notice, Tenant shall pay Landlord a lump sum
equal to the Additional Rent Deposit shown in the Projection Notice
less (1) any payments of Additional Rent Deposit previously made
during such Adjustment Year, and (2) monthly installments on account
of Additional Rent Deposit not yet due and payable for such
Adjustment Year. Until such time as Landlord furnishes a Projection
Notice for an Adjustment Year, Tenant shall pay to Landlord a
monthly installment of Additional Rent Deposit on the first day of
each month equal to the latest monthly installment of Additional
Rent Deposit. Landlord shall furnish Tenant with the amount of the
initial monthly installment of Additional Rent Deposit before the
Commencement Date.
(C) Notwithstanding anything in this Section 2 to the
contrary, if Tenant is not in Default under this lease and Chicago
Title and Trust occupies at least 100,000 square feet of Rentable
Area in the Building, the Additional Rent Deposit shall not include
the Tax Adjustment component thereof. In such event, Landlord shall
deliver to Tenant a copy of each xxxx for Taxes after it is received
by Landlord, together with a calculation of Tenant's Proportionate
Share of such Taxes pursuant to Section 2(b). Tenant shall deliver a
check drawn on an account of Tenant and payable to the appropriate
taxing authority in an amount equal to Tenant's Proportionate Share
of such Taxes to Landlord within ten (10) days of Tenant's receipt
of a copy of such xxxx and the calculation of Tenant's Proportionate
Share as stated aforesaid, but provided that Landlord has furnished
Tenant with a copy of such xxxx and such calculation of Tenant's
Proportionate Share not less than ten (10) business days before the
date such Taxes must be paid to the Xxxx County Collector's Office,
Tenant shall deliver such check to Landlord not later
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23
than five (5) business days before the due date for payment of such
Taxes. A copy of the Tax xxxx marked paid by the Xxxx County
Collector's Office shall be delivered to Tenant no later than thirty
(30) days after payment of such Taxes. Upon expiration of the Term
or if Tenant moves out of the Premises prior to lease expiration,
Landlord may require Tenant to pay an estimate of, or give Landlord
reasonable security for payment of, Tenant's Tax Adjustment
attributable to periods of Tenant's prior occupancy for which bills
for Taxes have not yet been received from governmental authorities,
if Landlord reasonably deems itself insecure as to payment of such
future Tax Adjustments. Tenant's right to pay Tenant's Proportionate
Share of Taxes when bills for Taxes are received from governmental
authorities is personal to Chicago Title and Trust Company and any
Affiliate (as such term is defined in Section 12(a) hereof) of
Chicago Title and Trust Company. Landlord's Tax Statement described
in Section 2(d)(ii) shall not be required except in instances where
a readjustment is required because Tenant has underpaid or overpaid
Tax Adjustment pursuant to this Section 2(c)(i)(C).
(ii) Tenant's Management Fee shall be paid in Monthly installments
equal to 1/12 of Tenant's Management Fee at the same time when Base Rent
is due.
(d) Readjustments. The following readjustments with regard to the
Tax Adjustment and Expense Adjustment shall be made by Landlord and Tenant:
(i) Following the end of each Adjustment Year and after Landlord has
determined the actual amount of Expenses for such Adjustment Year (which
calculation Landlord shall use reasonable efforts to make within one
hundred twenty (120) days following the end of each Adjustment Year, but
which calculation shall be made no later than two hundred seventy (270)
days following the end of such Adjustment Year), Landlord shall notify
Tenant in writing (any such notice of Expenses and Expense Adjustment is
herein called "Landlord's Expense Statement") of such actual Expenses and
Tenant's Expense Adjustment for such Adjustment Year. If the Expense
Adjustment for such Adjustment Year exceeds the Expense Adjustment
component of the Additional Rent Deposit paid by Tenant during such
Adjustment Year, then Tenant shall, within forty-five (45) days after the
date of Landlord's Expense Statement, pay to Landlord an amount equal to
such excess. If the Expense Adjustment component of the Additional Rent
Deposit paid by Tenant during such Adjustment Year exceeds the Expense
Adjustment owed for such Adjustment Year, then Landlord shall, within
forty-five (45) days after the date of Landlord's Expense Statement, pay
to Tenant such excess, which duty shall survive the termination or
expiration of this Lease, or at the option of Tenant, apply such excess to
the next succeeding payments of Rent coming due hereunder; provided,
however, if Tenant is in Default under this lease, Landlord may first
apply such excess to cure the Default and then pay any remaining amounts
to Tenant.
(ii) Following the end of each Adjustment Year and after Landlord
has determined the actual amount of Taxes
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for such Adjustment Year, Landlord shall notify Tenant in writing (any
such notice of Taxes and Tax Adjustment is herein called "Landlord's Tax
Statement") of such Taxes for such Adjustment Year. If the actual Tax
Adjustment for such Adjustment Year exceeds the Tax Adjustment component
of the Additional Rent Deposit paid by Tenant during such Adjustment Year,
then Tenant shall, within forty five (45) days after the date of
Landlord's Tax Statement, pay to Landlord an amount equal to such excess.
If the Tax Adjustment component of the Additional Rent Deposit paid by
Tenant during such Adjustment Year exceeds the Tax Adjustment owed for
such Adjustment Year, then Landlord shall within forty (45) days after the
date of Landlord's Tax Statement, pay to Tenant such excess, which duty
shall survive the expiration or termination of this lease, or at the
option of Tenant, apply such excess to the next succeeding payments of
Rent coming due hereunder; provided, however, if Tenant is in Default
under this lease, Landlord may first apply such excess to cure the Default
and then pay any remaining amounts to Tenant. Notwithstanding anything
herein to the contrary, the provisions of Section 2(c)(i)(B) and 2(d)(ii)
shall apply only in the event Tenant is in Default hereunder or Chicago
Title and Trust Company no longer occupies at least 100,000 square feet of
Rentable Area in the Building.
(iii) Notwithstanding anything herein to the contrary, Landlord's
Expense Statement and Landlord's Tax Statement shall include a reasonably
detailed itemization of Taxes and Expenses and a description of their
method of computation. Without limitation of the aforesaid, all line items
for Taxes and Expenses shall be clearly delineated and all line items in
excess of $100,000 for the Building as a whole shall be separately shown.
Landlord shall also provide, with Landlord's Statements, (x) a
certification from a general partner of Landlord that, based on an audit
of Landlord's books and records, Taxes and Expenses as shown on Landlord's
Statements have been computed as defined and limited by this Lease and (y)
a copy of the certification and audit from the certified public accountant
auditing Landlord's books and records as it pertains to Taxes and
Expenses.
(e) Books and Records. Landlord shall maintain books and records
showing Taxes and Expenses in accordance with generally accepted accounting
principles consistently applied except where otherwise required by this lease or
by law. Tenant and its representatives shall have the right to examine such
books and records upon reasonable prior notice and during normal business hours
at any time within one hundred twenty (120) days following service of either
Landlord's final Tax Statement (or Tax xxxx (as provided in Section 2(c)(i)(C)
hereof], as the case may be) or Landlord's final Expense Statement. Unless
Tenant shall take written exception to any item of Taxes or Expenses, specifying
in detail the reasons for such exception as to a particular item, within one
hundred twenty (120) days after service of either Landlord's final Tax Statement
or Landlord's final Expense Statement, such Statement shall be considered as
final and accepted by Tenant. If Tenant takes written exception to an item, as
aforesaid, and such exception is not resolved by Landlord and Tenant within
forty-five (45) days after Tenant's notice taking exception, the dispute shall
be submitted to a firm of certified public
-16-
25
accountants selected by Landlord and Tenant, who shall determine whether the
exception is proper and the amount owed by Tenant. The charges of the aforesaid
accounting firm shall be borne by Tenant, except if by reason of such exception,
Tenant has overpaid Additional Rent by 2% or more, in which case Landlord shall
pay the charges of said accounting firm. In the event Tenant has overpaid either
the Tax Adjustment or Expense Adjustment by 2% or more, Tenant shall receive
interest (at the Prime Plus Rate) on such overpayment from the date paid until
the date refunded.
(f) Proration and Survival. With respect to any Adjustment Year
which does not fall entirely within the Term, Tenant shall be obligated to pay
as Additional Rent for such Adjustment Year an amount equal to the amount of
Additional Rent which would have been due for such Adjustment Year if it had
fallen entirely within the Term multiplied by a fraction, the numerator of which
is the number of days of the Term falling within the Adjustment Year, and the
denominator of which is the number of days in such Adjustment Year. If the first
Adjustment Year under this lease is the calendar year in which the Building is
initially occupied by office tenants and the Commencement Date is a date other
than January 1 (such first Adjustment Year being herein called the "Opening
Year") then for purposes of computing such proration of Expenses only for such
Opening Year, said denominator shall be the number of days of the Term falling
within the period of such Opening Year beginning on the date when the Building
is substantially completed and initially occupied by office tenants and ending
on December 31 of such Opening Year. Without limitation of other obligations of
Tenant or Landlord which shall survive the expiration of the Term, the
obligation of Tenant to pay Additional Rent provided for in this Section 2 and
the obligation of Landlord to refund any Additional Rent shall survive the
expiration or termination of this lease.
(g) Protest of Taxes. Tenant shall have the right to request that
Landlord protest any tax assessment, valuation, levy or xxxx and Landlord shall
so protest if in Landlord's reasonable judgment Landlord reasonably believes
such protest would be successful. If Landlord decides not to so protest Landlord
shall inform Tenant of its reasons for such decision. Landlord shall promptly
inform Tenant if it is protesting Taxes on its own behalf.
(h) Prudent Management. Landlord shall use prudent management
practices (including, without limitation, the rebidding of major items of
Expense and the use of competitive arms-length contracts) in operating the
Building. Prudent management practices will be deemed to require competitive
bidding only where customary and where there are at least two qualified
responsive bidders. In addition, prudent management practices will be deemed to
require that Landlord balance minimizing Expenses with maximizing the quality of
services to the Building.
3. Use of Premises. Tenant shall use and occupy the Premises for general
office purposes and, in connection with such use, any lawful use incidental to
general office purposes not inconsistent with a first-class office building.
Tenant may also have and use kitchen (which may include refrigerators, vending
machines, microwave ovens, stoves, garbage disposals and garbage compactors and
other appliances used in connection
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with the operation of a kitchen), cafeteria and dining facilities ("Kitchen
Facilities") incidental to general office use for the exclusive benefit of
Tenant, its officers, directors and employees in connection with the business of
Tenant being conducted from the Premises subject to the restrictions and
conditions set forth in Section 63. In addition, Tenant may have and use
(incidental to general office use) lounge, exercise, health and medical
facilities exclusively for the use of Tenant, its officers, directors and
employees and such printing, mail handling, duplicating, reproduction,
photographic, word processing, data processing and communications (including
telecommunications) and such other equipment and facilities as Tenant may deem
necessary, desirable or convenient for the conduct of its business or for the
comfort, convenience or well-being of its officers, directors and employees.
Tenant shall use the Premises only for services in connection with the conduct
of its business or future businesses in the Premises and not for the sale of
products, except for financial services and products in connection with Tenant's
business in the Premises. Tenant's use shall specifically exclude retail uses
(other than financial services [including but not limited to title insurance,
trust and related services] which are part of Tenant's office use) and sale of
food or beverages to the public. Tenant use shall comply with all applicable
laws and ordinances, all orders and decrees of court and all requirements of
other governmental, authorities, and shall not directly or indirectly make any
use of the Premises which may thereby be prohibited or be dangerous to person or
property or which may jeopardize any insurance coverage, or may increase the
cost of insurance or require additional insurance coverage.
4. Delivery of Possession. Landlord shall not have any liability for
failure to perform or complete construction or deliver possession of the
Premises or any portion of the Building and Tenant's obligations under this
lease shall not be affected, except as otherwise set forth in Sections 6, 50, 51
and 62 hereof.
Landlord represents that the Building upon completion and issuance of a
certificate of occupancy (or its equivalent issued by the City of Chicago) will
comply with all applicable zoning, fire codes and other federal, state and local
rules, regulations, laws, statutes and ordinances, but only to the extent such
compliance or lack thereof affects Tenant's use, occupancy and enjoyment of the
Premises. In the event that any of these laws or regulations are modified after
the Commencement Date, Landlord shall, to the extent required by law, promptly
cause the Building, including the structural elements thereof to comply with
such modifications to the extent applicable to the Building (with the cost
thereof to be included in Expenses only to the extent permitted under Section 2
hereof).
5. Services. Landlord shall furnish the following services:
(a) Air-cooling and heat when necessary to provide a comfortable
temperature in the Premises (including Lobby Space and Vault Space) under normal
business conditions, daily from 8:00 A.M. to 6:00 P.M. (Saturdays from 9:00 A.M.
to 1:00 P.M.), Sundays and Holidays excepted. Landlord's agreements hereunder
are subject to mandatory Presidential or other governmental restrictions, laws
or regulations concerning energy use.
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"Holidays" means: Thanksgiving Day, Christmas Day, New Year's Day, Memorial Day,
Independence Day, Labor Day and any other day (i) recognized as a holiday by the
service unions representing workers providing services to the Building, and (ii)
customarily designated as a holiday by landlords operating first class office
buildings (leased to tenants that are not governmental agencies or departments)
in the downtown area of the City of Chicago.
The heating, ventilating and air conditioning system shall be as provided
in the Specifications attached hereto as Attachment 11. If Tenant's use or
occupation of the Premises, including lighting, personnel, and heat generating
machines or equipment, individually or cumulatively, exceeds the standards
delineated in the Specifications attached as Attachment 11, which causes the
design loads for the systems providing heat and air-cooling to be exceeded,
Landlord may, but shall not be obligated to, temper such excess loads by
installing supplementary heating or air-conditioning units in the Premises or
elsewhere where necessary. In such event, the cost of such units and the expense
of installation, including, without limitation, the cost of preparing working
drawings and specifications, plus ten percent (10%) of such cost as an overhead
and supervision fee, shall be paid by Tenant as additional rent within fifteen
(15) days after Landlord's demand therefor. Alternatively, Tenant may install,
operate and maintain such supplementary heating or air-conditioning units at
Tenant's sole expense. The expense resulting from the operation and maintenance
of any such supplementary heating or air-conditioning units shall be paid by
Tenant to Landlord as additional rent at 110% of Landlord's cost of delivering
the same. Alternatively Tenant may operate and maintain any such supplementary
units at Tenant's sole expense. Notwithstanding anything herein to the contrary,
Landlord's approval of Tenant's final construction drawings for the installation
of tenant improvements to the Premises and approval of plans for subsequent
alterations and additions to the Premises shall be conclusive evidence that such
alterations and improvements do not exceed design loads.
If Tenant shall require heating, ventilating or air-conditioning service
at any other time ("after-hours"), Landlord shall furnish such after-hours
service upon notice from Tenant given by 4:00 P.M. on any business day for
after-hours service for that night or the following morning, by 4:00 P.M. on any
Friday for after-hours service on the following Saturday or Sunday, and by 4:00
P.M. on the first business day immediately preceding a holiday for service on
such holiday. Tenant shall pay for such after-hours service at Landlord's cost
of providing the same. Notwithstanding anything herein to the contrary, Landlord
shall furnish to Tenant sufficient condenser water necessary to allow HVAC to be
supplied to the Tenant's computer room, telephone switch gear room and adjacent
mechanical rooms 24 hours per day, 7 days a week. In the event the after-hours
service is requested and shared by other tenants in the Building Tenant's share
of such costs shall be appropriately reduced to prorate overlapping costs.
(b) Cold water for drinking, lavatory, toilet, food preparation and
food vending purposes and hot water for lavatory purposes, both drawn through
fixtures installed by Landlord, or by Tenant in the Premises; provided, however,
hot
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water for any lavatories not located in the core of the Building as shown in
Attachment 11 shall be provided and paid for by Tenant. Landlord shall furnish
condenser water for Supplemental HVAC and related computer needs of Tenant.
Without limitation of the foregoing, condenser water shall be available at a
point on each floor of the Premises and Tenant may tap into it. All condenser
water furnished to Tenant will be charged to Tenant as follows:
Tenant shall be charged based upon Landlord's actual costs of furnishing
such condenser water, which costs shall include: cooling tower electricity
costs, make-up water, chemical feed, maintenance, and supervision/overhead
in an amount equal to 10% of the foregoing costs. Notwithstanding the
foregoing, Tenant shall be responsible for providing its own condenser
water pumping system and shall use reasonable efforts to design such
system so as to minimize water flow rates. In no event shall Tenant's use
exceed the system specifications with respect to flow rates and
temperature limits.
(c) Janitor and cleaning service provided in accordance with the
cleaning specifications in Exhibit D attached hereto. The cleaning of the
kitchen, escalators referred to in subsection (i) below, Vault Space, the Lobby
Space and the security desk console and display/mini-theater area described in
Section 43 shall be Tenant's sole responsibility; provided, however, that if
Tenant elects to have Landlord provided cleaning services to said areas, Tenant
shall pay. to Landlord a separate charge for building standard cleaning services
for such areas, which shall be bid along with the rest of the cleaning and
janitorial services. Notwithstanding anything herein to the contrary, Tenant may
contract with its own janitor to provide (i) supplemental janitorial services to
the Premises or (ii) all cleaning services to the Premises, and in the case of
clause (ii) (A) Tenant shall notify Landlord that Tenant intends to provide its
own cleaning services to the Premises prior to the time that Landlord bids the
cleaning contract for the Building, provided, however, that Tenants shall be
obligated so to notify Landlord only if Landlord has given Tenant thirty (30)
days prior written notice that Landlord will be bidding the cleaning contract
for the Building and (B) the expenses of cleaning tenants' premises shall be
removed from Expenses for purposes of calculating Tenant's Expense Adjustment.
Landlord agrees to obtain bids from its prospective cleaning contractors for any
above-standard cleaning services desired by Tenant at the same time as Landlord
is bidding or rebidding janitorial service. Tenant may request meetings with
Landlord and Landlord's contractor to discuss any complaints which Tenant may
have with the services being provided by such contractor, but Tenant shall not
talk with Landlord's contractor unless Landlord is present. In the event Tenant
is dissatisfied with the cleaning and janitorial services provided by Landlord's
contractor, Tenant can upon at least sixty (60) days prior notice to Landlord
(which notice shall specify Tenant's reasons for its dissatisfaction) provide
cleaning services to the Premises itself as provided in Section 5(c)(ii) above.
In contracting with its own cleaning and janitorial contractor Tenant assures
that such contractor will work in harmony with Landlord's contractor.
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(d) Passenger elevator service in common with Landlord and other
persons, at all times, and freight elevator service in common with Landlord and
other persons, daily from 8:00 A.M. to 6:00 P.M., Saturdays, Sundays and
holidays excepted. Landlord shall provide limited passenger elevator service
daily at all times such normal passenger service is not furnished. Tenant must
schedule all construction related deliveries and pick-ups in advance with
Landlord. After hours freight elevator service shall be available to Tenant, but
Tenant shall reimburse Landlord for Landlord's direct cost in providing such
service. All deliveries and pick-ups must be scheduled, but Tenant shall receive
fair and equitable use of the freight elevators and hoist for all construction
related deliveries and pick-ups (but the specific provisions of Attachment 2
shall be controlling where they apply). All elevators shall be in service during
the entire Term, subject to the need to repair one or more (but never all at the
same time) from time to time.
(e) Electricity shall not be furnished by Landlord, but shall be
furnished by Commonwealth Edison Company or another electric utility company
serving the area. Transformers shall be located on each floor of the Premises
and Landlord shall permit Tenant to receive electrical service directly from
wires and conduits connected by Tenant to such transformers. Tenant shall make
all necessary arrangements with the utility company for metering and paying for
electric current furnished by it to Tenant or for the benefit of the Premises,
and Tenant shall pay for all charges for electric current consumed on the
Premises (including, but not limited to, all areas in the Building which Tenant
has been granted an exclusive license to use and occupy pursuant to the terms
and conditions of this lease) or for the benefit of the Premises. Tenant shall
not, without Landlord's prior written consent in each instance, connect to the
Building's electrical distribution system any fixtures, appliances or equipment
which operate on a voltage in excess of 220 Volts. Tenant shall make no
alterations or additions to Landlord's electric equipment, risers, wires,
conduits or facilities in the Premises or the Building. Tenant may, but shall
not be obligated to, purchase from Landlord lamps, bulbs, ballasts and starters
used in the Premises during the Term. Tenant covenants and agrees that at all
times its use of electric current shall never exceed the capacity of the feeders
to the Building or the risers or wiring installed therein. Tenant shall pay all
direct utility costs attributable to the escalators constructed by Landlord
pursuant to Section 41 provided that the electricity for such escalators is
separately metered, sub-metered or when such usage can be reasonably estimated.
Notwithstanding anything herein to the contrary, Landlord shall be responsible
for providing electricity for all common areas, public areas, the rotunda and
the Garage and the electrical meters for the aforesaid. All electricity costs
included within Expenses shall be at the same rate as that charged to Landlord
by the utility company.
(f) Telephone service shall not be furnished by Landlord but shall
be furnished by a telephone company serving the area. Landlord shall permit
Tenant to receive such service directly from such telephone company at Tenant's
cost in accordance with Attachment 11. Tenant shall make all necessary
arrangements with the telephone company for paying for the telephone service
furnished by it to Tenant and Tenant shall pay all charges for telephone
service. Notwithstanding
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anything herein to the contrary, one of the telephone riser closets located in
the Building core of each floor of the Premises will be dedicated to Tenant and
no outside vendors or cable will be allowed in such closet.
(g) A security program detailing security procedures for Tenant and
other tenants in the Building. Landlord agrees to provide a minimum of two (2)
lobby guards during weekday hours specified in Section 5(a) above (provided that
said guards may leave the lobby to patrol the Building and to take lunch, coffee
and restroom breaks provided, that at least one guard shall be in the lobby at
all times during such hours) and one guard after such hours and on Saturday and
Sunday for the Building. Security systems within the Building shall be kept up-
to-date. Initially the security program will include key cards (to be provided
by Landlord) for passenger and garage elevators, as well as points of entry (to
be provided by Tenant) on Tenant's floors. The program will provide for
procedures for verification of day and time of entry and exit by individuals
after the weekday hours specified in Section 5(a) above. Without limitation of
the foregoing, Tenant is allowed to station its own personnel within the rotunda
lobby at the security desk, as well as elsewhere in the Premises. Landlord's and
Tenant's security staffs will fully cooperate with each other in coordinating
Building and Tenant's security procedures.
(h) Extermination service administered on a regular basis for pest
and rodent control, except that Tenant shall provide its own extermination
service for the kitchen and dining facilities in the Premises.
(i) Landlord will maintain the escalators in the Premises as more
fully described in Section 41 hereof.
(j) Landlord will publish Building emergency procedures which are
updated and approved from time to time in accordance with recognized standards
observed in other first class office buildings in the City of Chicago.
(k) Tenant shall have the exclusive use of the loading dock bay
described on Exhibit H attached hereto (the "Loading Dock Bay"), subject to the
terms and conditions of this lease and the rights of Landlord to enter the area
for the purpose of providing maintenance and repairs and for such other purposes
as would entitle Landlord to enter the Premises under the terms and conditions
of this lease, as well as the right to use in common with the other tenants the
other loading dock bays for the Building.
(l) Landlord shall provide a person to act as dock supervisor daily
from 8:00 A.M. to 6:00 P.M., excluding Saturdays, Sundays and holidays. The dock
supervisor will supervise and coordinate loading dock activity with a view
toward giving Tenant and the other tenants in the Building fair and equitable
access to the loading dock bays (other than Tenant's Loading Dock Bay) in the
Building. While the primary responsibility of the dock supervisor shall be to
supervise and coordinate loading dock activities as aforesaid, the dock
supervisor may engage in other activities for the benefit of the Building when
his/her presence at the loading dock is not necessary, appropriate or
beneficial to the fair, equitable and efficient operation of the loading dock.
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(m) Landlord agrees to furnish such other services as are
customarily furnished without charge by landlords of other first-class office
buildings in the City of Chicago.
In addition, the Building will be staffed with or contract for
sufficient management, engineering and other personnel capable of providing such
first- class service.
Landlord agrees to provide such extra or additional services to the
Premises (except those which are stated herein to be Tenant's responsibility) as
it is reasonably possible for Landlord to provide, and as are customary for
other first class office buildings in downtown Chicago and as Tenant may from
time to time request in writing, within a reasonable period (unless provided
otherwise herein) after the time such extra or additional services are
requested. Tenant shall pay for such extra or additional services at one hundred
ten percent (110%) of Landlord's cost (unless provided otherwise herein) in
providing them, such amount to be considered additional rent hereunder. All
charges for such extra or additional services shall be due and payable at the
same time as the installment of Base Rent with which they are billed, or if
billed separately, shall be due and payable within fifteen (15) days after
Tenant receives Landlord's xxxx therefor. Any such xxxxxxxx for extra or
additional services shall include an itemization of the extra or additional
services rendered and the charge for each such service.
Tenant agrees that Landlord and its beneficiaries and their agents
shall not be liable in damages, by abatement of Rent or otherwise, for failure
to furnish or for delay in furnishing any service when such failure or delay is
occasioned, in whole or in part, by necessary repairs or maintenance, by any
strike, lockout or other labor trouble, by inability to secure telephone
service, electricity, water or gas or other fuel at the Building after
reasonable effort so to do, by any accident or casualty whatsoever, by the act
or default of Tenant or other parties, or by any cause beyond the reasonable
control of Landlord; and except as hereafter stated such failures or delays
shall never be deemed to constitute an eviction or disturbance of Tenant's use
and possession of the Premises or relieve Tenant from paying Rent or performing
any of its obligations under, this lease. Unless such repairs, renewals or
improvements can be made during business hours without unreasonable or material
interference with Tenant's business operations or in the case of an emergency,
Landlord shall make such repairs, alterations or replacements during
non-business hours. If Landlord ceases to furnish any of the services referred
to in this Section 5 (other than services described in Section 5(m) above) and
such cessation is not caused by a casualty described in Section 14 hereof (in
which case Section 14 shall control), and, as a result thereof, the Premises, or
any portion thereof, are rendered untenantable for a period in excess of three
(3) days, then, commencing with the beginning of such three (3) day period,
Tenant shall be entitled to an abatement of Rent solely with respect to those
portions of the Premises that are rendered untenantable for the duration of such
untenantability until Tenant resumes or can resume tenancy of the affected
portion of the Premises. Tenant shall notify Landlord of its reasons for abating
the payment of Rent. For purposes of this lease, "untenantable" shall mean, as
to any portion of the Premises, that Tenant cannot reasonably use the Premises
for their intended purpose or
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conduct its usual business in the Premises as a result of the condition of the
Premises or any portion of the Building. If any period of untenantability
involving more than twenty percent (20%) of the area of the Premises is longer
than sixty (60) consecutive days, then subject to the provisions of Section 14
and unless the same stoppage of services affects the majority of office
buildings in downtown Chicago, Tenant may elect to terminate this lease by
written notice to Landlord within the thirty (30) day period following such
sixty (60) consecutive day period; provided, however, if such stoppage of
services requires work to be performed, acts to be done, or conditions to be
removed which, by their nature, cannot reasonably be performed, done or removed,
as the case may be, within such sixty (60) day period, then if Landlord shall
have commenced curing or correcting the same within such period and shall have
diligently prosecuted such correction or cure, such sixty (60) day period shall
be extended by such additional time period not to exceed an additional one
hundred twenty (120) days, for a total of one hundred eighty (180) days in the
aggregate.
After reasonable notice (which may be oral) or in the case of an
emergency Landlord and its contractors shall have free access to any and all
mechanical installations, and Tenant agrees that there shall be no construction
or partitions or other obstructions which might interfere with the moving of the
servicing equipment of Landlord to or from the enclosures containing said
installations. Tenant further agrees that neither Tenant nor its employees,
agents, or contractors shall at any time tamper with, adjust or in any other
manner affect Landlord's mechanical installations.
6. Condition and Care of Premises.
(a) Tenant's taking possession of the Premises or any portion
thereof for occupancy or construction of Tenant improvements (as defined in
Section 37) shall be conclusive evidence against Tenant that the portion of the
Premises taken possession of was then in good order and satisfactory condition,
subject to any exceptions previously agreed upon in writing by Landlord and
Tenant and subject to any punchlist items and latent defects. No promises of
Landlord to alter, remodel, improve, repair, decorate or clean the Premises or
any part thereof have been made, and no representation respecting the condition
of the Premises, the Building or the Land has been made to Tenant by or on
behalf of Landlord, except to the extent set forth in this lease. Landlord shall
perform all maintenance and make all repairs and replacements to common areas of
the Building and to base building systems. Without limiting the generality of
the foregoing, Landlord shall maintain, repair and replace, as reasonably
necessary for first-class office buildings in downtown Chicago, Illinois, (i)
base building plumbing, sprinkler, HVAC, electrical and mechanical lines and
equipment associated therewith, and elevators and escalators (as provided in
Section 41 hereof) which serve the Premises or common areas of the Building, and
broken or damaged glass (except glass broken or damaged due to the negligence of
Tenant); (ii) the exterior walls and interior and exterior structures of the
Building, including the roof; and (iii) the common areas of the Building,
including common entrances, corridors, doors, windows, loading docks, stairways
and lavatory facilities; provided, however, Landlord shall not be obligated to
provide any repair, replacement or maintenance
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(x) which Tenant is specifically obligated to perform under the terms hereof or
(y) of Tenant's Tenant Improvements or subsequent tenant alterations or tenant
improvements to the Premises made by or on behalf of Tenant.
(b) Tenant shall notify Landlord of any damage (except of a minor
nature) to the Premises, regardless of the cause of damage. Except for any
damage resulting from any negligent or willful act of Landlord and its
employees, contractors and agents, and subject to the provisions of Section 14
hereof, Tenant shall, at its own expense, keep the Premises (including all areas
within the Building which Tenant then has an exclusive license to use and occupy
pursuant to the terms and conditions of this lease) in good repair and
tenantable condition and shall promptly and adequately repair all damage to the
Premises caused by Tenant or any of its employees, agents or contractors. If
Tenant does not make repairs promptly and adequately when required to do so, or
upon Tenant's request Landlord may upon notice to Tenant, but need not, make
such repairs and replacements and Tenant shall pay Landlord, within thirty (30)
days of demand, the cost thereof and an amount equal to ten percent (10%) of
such cost as an overhead and supervision fee.
(c) This lease does not grant any rights to light or air over or
about the real property of Landlord. Landlord specifically excepts and reserves
to itself the use of any roofs (subject to Section 49 hereof), the exterior
portions of the Premises (subject to Tenant's right to locate signs thereon
pursuant to the terms of this lease), all rights to and the land and
improvements below the improved floor level of the Premises, to the improvements
and airrights above the Premises, to the improvements and air rights located
outside the demising walls of the Premises and to such areas within the Premises
required for the installation of utility lines and other installations required
to serve occupants of the Building as disclosed on Attachments 10 and 11 and no
rights with respect thereto are conferred upon Tenant, unless otherwise
specifically provided herein.
7. Surrender of Premises.
(a) At the termination of this lease by lapse of time or otherwise,
or upon termination of Tenant's right of possession without terminating this
lease, Tenant shall surrender possession of the Premises to Landlord and deliver
all keys to the Premises to Landlord and make known to Landlord the combination
of all locks of vaults then remaining in the Premises, and shall, subject to the
following subparagraphs, return the Premises and all equipment and fixtures of
Landlord therein to Landlord in good condition, excepting ordinary wear and
tear, loss or damage by fire or other insured casualty and damage resulting from
the act of Landlord or, any of its employees and agents. If Tenant fails to
return the Premises and such equipment and fixtures to Landlord in such
condition, then Landlord may restore the Premises and such equipment and
fixtures to such condition, and Tenant shall pay the cost thereof to Landlord on
demand.
(b) All installations, additions, non-movable partitions, hardware,
light fixtures, supplementary heating or air conditioning units, non-trade
fixtures and improvements, except movable furniture, movable partitions and
equipment
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(such excepted property to include, without limitation, kitchen, cafeteria,
vending, printing, duplication, electronic data processing, communications, word
processing, reproduction, library, exercise, photographic and other trade
fixtures, appliances and equipment, howsoever affixed to, or installed in the
Premises, including any portable, movable, non-permanent or detachable dividers
and partitions) belonging to or possessed by Tenant, in or upon the Premises,
whether placed there by Tenant or Landlord, or placed elsewhere by Tenant in the
Building, shall be Landlord's property and shall remain upon the Premises and
Building upon expiration or sooner termination of the Term or Tenant's
possession hereunder, all without compensation, allowance or credit to Tenant.
If Tenant so elects, upon expiration of the Term or termination of the Term
pursuant to Section 46 hereof, it may at Tenant's sole cost and expense remove
such of the installations, additions, partitions, hardware, light fixtures,
supplementary heating or air conditioning units, non-trade fixtures and
improvements placed in the Premises or Building which are above building
standard and cost in excess of the Landlord's Allowance, as Tenant elects and
repair any damage to the Premises or Building caused by such removal, provided,
that, if Tenant fails to repair such damage Landlord may do so and Tenant shall
pay the cost thereof to Landlord on written demand. Notwithstanding the
foregoing, at Landlord's option and upon notice to Tenant, Tenant shall remove
(i) the following items: any equipment, fixtures or furnishings used in the
kitchen/cafeteria located in the Premises, including any horizontal exhaust
ducts (but not including any vertical black iron ducts or any building standard
improvements in such area), any raised flooring, any supplemental air-
conditioning units, but not including any part of any cooling tower, and any
other Tenant Improvements above building standard and costing in excess of the
Landlord's Allowance, and (ii) any items installed by or for Tenant, other than
as part of Tenant Improvements in the Premises, (including, without limitation,
as part of Tenant Improvements in the Post-Occupancy Expansion Space), where
Landlord, pursuant to Section 11(e), required removal as a condition to consent
to such work.
(c) At the sole option of Tenant, Tenant may leave in place any
floor covering without compensation to Tenant, or Tenant may remove any floor
covering and shall remove all fastenings, paper, glue, bases or other vestiges
and restore the floor surface to its previous condition. Tenant shall also
remove Tenant's furniture, machinery, safes, trade fixtures and other items of
movable personal property of every kind and description from the Premises and
restore any damage to the Premises caused thereby, such removal and restoration
to be performed prior to the expiration of the Term or no later than ten (10)
days following the earlier termination of this lease or Tenant's right of
possession, whichever might be earlier (and upon prior written notice to
Landlord, in the event such removal occurs after termination of this lease or
Tenant's right to possession). Landlord may remove such items if Tenant fails to
do so, subject to the provisions of Section 16(f). Tenant shall repair any
damage to the Premises caused by such removal. Notwithstanding anything herein
to the contrary, except as provided in Section 46, Tenant shall not be obligated
to remove the escalators within Tenant's Premises.
(d) All obligations of Tenant under this Section 7 shall survive the
expiration of the Term or sooner termination of this lease.
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8. Holding Over. Tenant shall pay Landlord for each day Tenant retains
possession of the Premises or any part thereof after the Expiration Date or
sooner termination of this lease or Tenant's possession hereunder, an amount
which is two hundred percent (200%) of the amount of Rent per day allocable to
such portion of the Premises retained, based on the annual rate of Base Rent and
Additional Rent applicable under Sections 1 and 2, for each day of the period in
which such retention of possession occurs, and if such retention of possession
is more than ninety (90) days Tenant shall also pay all damages (except that
Tenant shall not be responsible for consequential damages unless and until
Landlord has a bona fide third party tenant to whom Landlord has leased the
space in question and Landlord has notified Tenant of such tenant and that
Tenant's occupancy of the space is either preventing such tenant from timely
moving into the space or preventing the timely completion of tenant improvements
to such space to allow such tenant timely to move into such space) sustained by
Landlord by reason of such retention. Landlord agrees that Tenant's retention of
possession of the Premises, or any part thereof, shall not constitute a renewal
of this lease.
9. Rules and Regulations. Tenant agrees to observe and not to interfere
with the rights reserved to Landlord contained in Section 10 hereof and
elsewhere in this lease, and agrees, for itself, its employees, agents and
contractors, to comply with the rules and regulations set forth in Exhibit C
attached to this lease, and elsewhere in this lease, as may be reasonably
modified from time to time (upon no less than ten (10) days prior written
notice) and such other reasonable rules and regulations as shall be adopted by
Landlord, after consultation with Tenant, which do not conflict with the express
provisions of this lease, do not materially interfere with, disrupt, or require
an alteration of the Tenant's use and enjoyment of the Premises for the purposes
set forth in Section 3 of this Lease, and are consistent with, or necessary to,
the operation, maintenance and security of a first-class office building.
Landlord shall not discriminate against Tenant in enforcing any rules or
regulations applicable to all tenants and all such rules and regulations
applicable to all tenants should be enforced uniformly.
10. Rights Reserved to Landlord. Landlord reserves the following rights,
exercisable without notice except as expressly provided herein and without
liability to Tenant for damage or injury to property, person or business, and
without effecting an eviction or disturbance of Tenant's use or possession or
giving rise to any claim for setoff or abatement of Rent or affecting any of
Tenant's obligations under this lease:
(a) To change the name of the Building, except as set forth in
Section 40.
(b) To install and maintain signs on the exterior and interior of
the Building (other than the interior of the Premises), except as prohibited by
Section 40.
(c) To prescribe the location and style of the suite number and
identification sign or lettering: for the Premises (other than in the interior
of the Premises and for full floors of the Premises).
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(d) To retain at all times, and to use in performing janitorial and
other services to the Premises and in emergency situations to obtain access to
the Premises, pass keys to the Premises, but, subject to the requirements of the
Chicago Fire Department, excluding from the Premises safes, vaults and
electronic data processing rooms. Landlord shall not be required to clean, or
provide other services which require access to areas of the Premises to which it
is not given access.
(e) To grant to anyone the right to conduct any business or render
any service in the Building, whether or not it is the same as or similar to the
use expressly permitted to Tenant by Section 3, except as set forth in Section
54.
(f) To exhibit the Premises during the Term to lenders, purchasers
and investors and to prospective tenants during the last eighteen months of the
Term, but only at reasonable hours after reasonable prior notice to Tenant, and
to decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy at any time after Tenant surrenders the Premises.
(g) To enter the Premises at reasonable hours for reasonable
purposes, including, without limitation, for inspection or for supplying janitor
service or other service to be provided to Tenant hereunder. Except in an
emergency situation, Landlord shall give Tenant reasonable advance notice (which
may be oral) prior to its entry into the Premises.
(h) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to identify
themselves to security personnel by registration or otherwise in accordance with
Building security controls, and to establish their right to enter or leave in
accordance with the provisions of this lease. Landlord shall not be liable for
damages for any good faith error with respect to admission to or eviction or
exclusion from the Building of any person. In case of fire, casualty, invasion,
insurrection, riot, civil disorder, public excitement or other commotion, or
threat thereof, Landlord reserves the right to limit or prevent access to the
Building during the continuance of the same, shut down elevator service,
activate elevator emergency controls, or otherwise take such action or
preventive measures deemed necessary by Landlord for the safety or security of
the tenants or other occupants of the Building or the protection of the Building
and the property in the Building. Tenant agrees to cooperate in any reasonable
safety or security program developed by Landlord.
11. Alterations. The provisions of this Section 11 do not apply to Tenant
Improvements to which Section 37 applies. Tenant shall have the right to make
any alterations, improvements and additions to the Premises at any time or from
time to time during the Term, as extended, without Landlord's consent as
provided in this Section 11.
(a) Restricted Work. Tenant shall not, without Landlord's consent,
which consent may be withheld in Landlord's sole discretion, do (i) any
structural work in the Premises or Building or make any alterations in, or
additions to, basic Building systems which affect the integrity or operation of
the Building or its basic Building systems; (ii) perform any work which would,
in Landlord's reasonable judgment, (A) adversely
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affect Landlord's ability to perform its obligations or provide services to
Tenant or other tenants or (B) increase the costs thereof; or (iii) perform any
work in the Premises or Building visible from outside the Premises which would
materially detract from the aesthetic integrity of the Building or its design.
Landlord agrees not to act arbitrarily in withholding its consent. In the event
Landlord refuses to grant its consent, Landlord shall furnish Tenant with a
statement setting forth its reasons for doing so. Landlord further agrees not to
withhold its consent as to work described in clause (a)(ii)(B) above which would
result in increased costs to Landlord, if Tenant pays all such increased costs.
Landlord's consent to any work requiring its consent under this Section 11(a)
shall be deemed given if no response is received within ten (10) business days
after Tenant notifies Landlord as to the nature of the work desired but the
foregoing shall not require submittal of detailed plans and specifications. Such
notification shall include a statement that Landlord's failure to respond within
the aforesaid time period shall be deemed consent.
(b) Work Done by Tenant. Tenant may itself perform or employ
contractors to perform work which is not described in Section 11(a) and any work
described in clause (a) above for which Landlord's consent has been obtained
(except as set forth in (c) below); provided that Tenant shall notify Landlord
reasonably in advance as to any such work which costs more than $100,000.00
(increased from time to time by the percentage increase in the Consumer Price
Index (as defined in Section 12 hereof) for the calendar year prior to the
calendar year in which the determination is to be made over the Consumer Price
Index for 1992) or work which requires a building permit, with such specificity
as may reasonably be required under the circumstances. With respect to any work
done by Tenant, Tenant shall comply with Sections 1, 2 and 3 of Exhibit E
(except that Landlord shall not have the right to approve Tenant's plans and
specifications for work costing less than $100,000 which work is not described
in (a) above).
(c) Work Done by Landlord. Landlord may perform any work described
in (a)(i) above at Tenant's cost, but in no event shall such cost exceed that
amount which Tenant's contractors would charge for such work. In the event
Tenant allows Landlord to bid to perform work in the Premises, Tenant shall have
no obligation to accept Landlord's bid.
(d) Entry Into Other Tenants' Space. Landlord agrees to cooperate
reasonably with Tenant with respect to any Tenant work which would require entry
into another tenant's space; provided, however, unless the affected tenant
otherwise agrees, any Tenant work to be performed outside of the Premises shall
be subject to reasonable scheduling by Landlord, and any, work to be performed
by Tenant materially affecting other tenants shall be done during non-business
hours. Landlord may require that any work to be performed in other tenants
spaces be performed after regular business hours if such work will materially
interfere with the conduct of that other tenant's business operations in such
other tenant's judgment. Tenant agrees to defend and hold Landlord and such
other tenant harmless from and indemnify them against any and all claims and
liabilities which may arise in connection with Tenant's work in such other
tenant's space, and in the event such other tenant requires that Landlord rather
than Tenant perform the work in
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such other tenant's space Tenant shall pay Landlord's costs incurred therewith,
including overtime charges plus an amount equal to ten percent (10%) of such
cost as an overhead and supervision fee.
(e) Removal. Subject to Section 7(b) Landlord may, upon notice that
Tenant is making alterations, improvements or additions, require removal of such
items upon termination as set forth in Section 7(b). Landlord's requirement that
Tenant remove such alterations, improvements or additions shall be made
independently of Landlord's consent to such alterations, improvements or
additions and any such required removal shall have no bearing on whether
Landlord was reasonable in giving or withholding its consent to such
alterations, improvements or additions.
12. Assignment and Subletting.
(a) Tenant shall not, without the prior written consent of Landlord
in each instance, either prior or subsequent to the Low-Rise Commencement Date,
(i) assign, transfer, mortgage, pledge, hypothecate or encumber or subject to or
permit to exist upon or be subjected to any lien or charge (except as provided
in Section 30 hereof) any interest of Tenant under this lease, (ii) sublet the
Premises or any part thereof, or (iii) permit the use or occupancy of the
Premises or any part thereof for any purpose not provided for under Section 3 of
this lease or by anyone other than the Tenant and Tenant's directors, officers,
employees and agents. Notwithstanding the foregoing, Tenant shall have the right
to: (1) assign this lease or sublet all or a portion of the Premises (other than
the Lobby Space) to an Affiliate without Landlord's consent, and (2) sublet
space which was previously improved with tenant improvements ("Developed Space")
to third party subtenants with Landlord's approval of such subtenant's
character, such approval not to be unreasonably withheld or delayed, (3) sublet
the Lobby Space to an Affiliate subject to Landlord's prior written approval,
which approval shall not be unreasonably withheld or delayed and (4) sublet
Undeveloped Space of one (1) floor or less to third party subtenants with
Landlord's approval of such subtenant's character, such approval not to be
unreasonably withheld or delayed. For purposes of this lease, an "Affiliate"
shall mean any corporation, partnership, joint venture or other entity (i) which
controls Chicago Title and Trust Company, either directly or indirectly through
other wholly-owned subsidiaries; (ii) which is under the control of Chicago
Title and Trust Company, either directly or indirectly; (iii) which is under
common control with Chicago Title and Trust Company, either directly or
indirectly; or (iv) which results from a merger or consolidation with or
reorganization of Chicago Title and Trust Company. Landlord shall not be deemed
to have unreasonably withheld its consent to a proposed assignment of this lease
or to a proposed sublease of part or all of the Premises (where such consent is
required) if its consent is withheld because: (i) Tenant is then in Default
hereunder; (ii) either the portion of the Premises which Tenant proposed to
sublease, or the remaining portion of the Premises, or the means of ingress or
egress to either the portion of the Premises which Tenant proposes to sublease
or the remaining portion of the Premises, or the proposed use of the Premises or
any portion thereof by the proposed assignee or subtenant, will violate any
applicable city, state or federal law, ordinance or regulation, including,
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without limitation, building codes and zoning ordinances; (iii) the proposed use
of the Premises by the proposed assignee or subtenant does not conform with the
use clause set forth in Section 3 hereof; (iv) in the reasonable judgment of
Landlord the proposed assignee or subtenant is of a character or is engaged in a
business which would be deleterious to the reputation or operation of the
Building or Landlord or (v) in those instances stated herein which specifically
provide for a financial test, the proposed assignee or subtenant fails to meet
the stated test. Tenant agrees that all advertising by Tenant or on Tenant's
behalf with respect to the assignment of this lease or subletting of any part of
the Premises shall be in good taste but Tenant shall be entitled to fully
advertise all of the terms and conditions (economic or otherwise) of such
assignment or subletting. Notwithstanding anything in this Section 12 to the
contrary, for purposes of this Section 12, in no event shall Landlord be
entitled to any portion of the rent received by Tenant from any subtenant or
Affiliate, regardless of whether it is in excess of the Rent payable hereunder.
(b) Consent by Landlord to any assignment, subletting, use,
occupancy, transfer or encumbrance shall not operate to relieve Tenant from any
covenant or obligation hereunder, or be deemed to be a consent to, or relieve
Tenant from obtaining Landlord's consent to, any subsequent assignment,
subletting, use, occupancy, transfer or encumbrance by Tenant or anyone claiming
by, through or under Tenant as to which Landlord's consent is required. Tenant
shall pay all of Landlord's reasonable costs, charges and expenses, including,
without limitation, reasonable attorney's fees, incurred in connection with any
assignment, subletting, use, occupancy, transfer or encumbrance or release made
or requested by Tenant; provided, however, if Landlord recaptures that portion
of the Premises in question Tenant shall not be obligated for any amount
relating to such space.
(c) In the event Tenant desires to assign this lease or sublet any
part of the Premises for the balance or any part of the Term other than in
accordance with clauses (1), (3) and (4) of the second sentence of Section 12(a)
above and such space falls within any of the four categories hereinafter
described, Tenant shall, not more than one (1) year in advance, by notice in
writing, advise Landlord of its intention to assign this lease or sublet any
part or all of the Premises (which portion Tenant shall specify in its notice)
for the balance or any part of the Term and shall (but only if Tenant has
already identified the potential assignee or subtenant) provide Landlord with
the name and address of the proposed assignee or subtenant and such information
available to permit Landlord to determine the desirability of the proposed
subtenant or assignee. Landlord shall thereafter have the right, to be exercised
by giving written notice to Tenant within thirty (30) days after receipt of
Tenant's notice, to terminate this lease with respect to the space described in
Tenant's notice as of the date specified in Tenant's notice as the termination
date for such space. Nothing herein shall be construed to indicate that
Landlord's right to terminate this lease with respect to space described below
requires that the terms of the proposed sublet or assignment be agreed upon and
formalized in an instrument of sublease or assignment. The four categories are
as follows:
(i) Undeveloped Space in excess of one (1) floor;
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(ii) space proposed to be sublet or assigned to existing tenants in
the Building at a rate of Rent below Tenant's rate of Rent on such space,
if comparable space is available for lease in the Building;
(iii) during the first two Lease Years, any proposed sublease or
assignment, or during the first two years after leasing any Post-Occupancy
Expansion Space or First Offer Space, any proposed sublease of any such
Post-Occupancy Expansion Space or First Offer Space;
(iv) any proposed sublease or assignment, if at the time of such
sublease or assignment, Tenant or Affiliate occupies or leases less than
one hundred fifty thousand (150,000) square feet of Rentable Area in the
Building (taking into account the space then proposed to be sublet).
In the event Landlord does not terminate this lease with respect to
such space, Tenant's rights to sublet or assign such space shall be as stated
aforesaid and Landlord's consent shall not be unreasonably withheld after Tenant
has furnished to Landlord the relevant information so that Landlord can
determine whether such assignee or subtenant meets the appropriate criteria set
forth in subsection (a) above. However, if Tenant, having given notice of a
sublet or assignment of space described in the four categories (i) through (iv)
above (and Landlord does not terminate this Lease with respect to such space),
does not consummate such transaction within one (1) year of Tenant's notice,
Tenant shall resubmit a notice of proposed sublet or assignment and Landlord's
rights under this Section 12(c) shall again apply if Tenant intends to assign
the lease or sublet such space (to the extent that the space still falls within
one of such categories). If Landlord exercises its right to terminate this lease
with respect to such space then the Base Rent and the Tenant's Proportionate
Share shall be adjusted on the basis of the number of Rentable Square Feet
retained by Tenant, and this lease as so amended, shall continue thereafter in
full force and effect, except that in the case of an assignment, it shall
terminate.
Notwithstanding anything herein to the contrary, with regard to categories
(i) and (ii) above in this subparagraph (c) Landlord shall have a right to
terminate this lease prior to the time the transaction is consummated by Tenant
in accordance with the provisions of this paragraph. In such cases Tenant shall
furnish Landlord with the name and address of the proposed assignee or subtenant
and such information available to Tenant so as to permit Landlord to determine
the desirability of the proposed subtenant or assignee. In the event Landlord
does not so terminate this lease within ten (10) business days of receipt of the
aforesaid information Tenant may consummate such transaction.
With respect to space (falling within the aforesaid four categories (i)
through (iv)) proposed to be subleased for less than the remainder of the Term,
Landlord shall have the option to delete the proposed subleased space
("Recaptured Space") from the Premises for the proposed sublease term
("Recapture Period"), in which event all of the terms and provisions of this
lease accruing during the Recapture Period (including the payment of Rent)
applicable to the Recaptured Space (except for retroactive determinations of
Additional Rent respecting the
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Recaptured Space that relate to periods other than the Recapture Period) and
Tenant's Proportionate Share and Rentable Area of the Premises shall be adjusted
on the basis of the Rentable Area of the Premises retained by Tenant. The lease
of the remainder of the Premises shall not be affected by the deletion of the
Recaptured Space for the Recapture Period. From and after the expiration of the
Recapture Period, the terms and provisions of this lease shall commence and
continue to apply to the Recaptured Space for the remainder of the Term.
Landlord shall, at its sole cost and expense, construct at the beginning of the
Recapture Period any demising walls required to separate the Recaptured Space
from the Premises. During the Recapture Period, Landlord shall have the right to
lease or otherwise use the Recaptured Space in such manner as it determines and
shall redeliver possession of the Recaptured Space at the end of the Recapture
Period to Tenant "as is".
Tenant agrees that in the event that Landlord terminates the lease of any
space which was not previously improved with tenant improvements ("Undeveloped
Space"), Tenant shall refund Landlord's Allowance to Landlord, within thirty
(30) days of demand, at the rate of Fifty Dollars ($50.00) per square foot of
Rentable Area of Recaptured Space if Landlord's Allowance for such space had
previously been given to Tenant.
(d) If Tenant shall assign this lease as permitted herein, the
assignee shall expressly assume all of the obligations of Tenant hereunder in a
written instrument reasonably satisfactory to Landlord and furnished to Landlord
not later than fifteen (15) days prior to the effective date of the assignment.
(e) Under particular circumstances hereinafter set forth, Tenant may
be released from future obligations under the lease on the terms stated below.
Tenant may designate a prospective tenant to lease a portion of its Premises
("Released Space") for the balance of the Term and may request ("Release
Request") that Landlord enter into a direct lease with such prospective tenant
(in lieu of Tenant subleasing the Released Space to the prospective tenant).
Tenant shall furnish a Release Request to Landlord at the time it would
otherwise seek Landlord's consent to sublet such space, if such consent is
required by this Section 12, but in any event no later than sixty (60) days
prior to the proposed commencement date of the direct lease. The Release Request
shall include a description of the Released Space; the proposed commencement
date of the direct lease; the name and address of the prospective tenant; and
sufficient information to determine the financial responsibility and character
of the proposed tenant.
Tenant may be released from future obligations under the lease as to
that part of the Premises leased to a third party (but not less than seven
thousand five hundred (7,500) Rentable Area in each case) upon commencement of
the lease term and the commencement of the third party's obligation to pay rent
(i) on the terms of Tenant's lease for the balance of the Term (except those
rights or concessions as may not be transferred, granted or assigned as
described below), (ii) subject to Tenant's payment of all of Landlord's costs
and expenses (including but not limited to reasonable attorneys' fees) incurred
by Landlord in connection with such lease, (iii) subject to such prospective
tenant meeting the formula determining financial responsibility described below
and having
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a good reputation in the business community. Landlord approval shall not be
unreasonably withheld where the financial responsibility and character tests
have been met. Landlord shall not be deemed to have unreasonably withheld its
consent if in the reasonable judgment of Landlord the prospective tenant is of a
character or engaged in a business which would be deleterious to the reputation
of the Building or the Landlord. For the first seventy-five thousand (75,000)
square feet of Rentable Area of space to be released, the formula for
determining financial responsibility will be based on standards similar to those
being utilized by Landlord in determining whether to lease other space of
comparable size in the Building to tenants, but as to any further released
space, the proposed tenant will be deemed to be financially responsible if the
proposed tenant's net worth is equal to or greater than an amount determined by
multiplying $100,000,000.00 (increased from time to time by the percentage
increase in the Consumer Price Index for the calendar year prior to the calendar
year in which such determination is to be made over the Consumer Price Index
for 1992) times a fraction the numerator of which is the number of rentable
square feet to be leased by such subtenant and the denominator of which is the
number of rentable square feet in the Initial Premises, but in no event less
than standards similar to those being utilized by Landlord in determining
whether to lease other space of comparable size in the Building to tenants.
"Consumer Price Index" shall mean the Consumer Price Index, for the City
of Chicago, Illinois -- Northern Indiana, Urban Wage Earners and Clerical
Workers, All Items (base year 1982-84=100), as published by the United States
Department of Labor, Bureau of Labor Statistics. If the manner in which the
Consumer Price Index is determined by the Bureau of Labor Statistics is
substantially revised, including without limitation, a change in the base index
year, an adjustment shall be made in such revised index which would produce
results equivalent, as nearly as possible, to those which would have been
obtained if such Consumer Price Index had not been so revised. If the Consumer
Price Index shall become unavailable to the public because publication is
discontinued, or otherwise, or if equivalent data is not readily available, then
a comparable index measuring changes in the cost of living or purchasing power
of the dollar published by a governmental agency or, if no such index shall be
available, then a comparable index published by a major bank or other financial
institution or by a university or a recognized financial publication shall be
substituted therefor.
Tenant may not be released from the obligations of this lease with
respect to any space if at the time of the release or as a result of the release
Tenant is or would be leasing less than six (6) floors in the Building. No
release shall be given or be effective prior to the second (2nd) anniversary of
the Low-Rise Commencement Date.
Further, it is understood that if Landlord will be directly leasing
space to a third party resulting in the release of Tenant described above, then
Tenant may not transfer, grant or assign the following rights or concessions (in
addition to those expressly made personal to Chicago Title and Trust Company)
intended to be for the benefit of Tenant (which are not intended to be separated
from the lease to Tenant) and Landlord will not be bound by such provisions with
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respect to such new party: (i) options to extend under Section 36 (unless the
rent is at the Market Rental Rate); (ii) right to lease vault space under
Section 1; (iii) options to lease Pre-Occupancy Expansion Space under Section
39, Post-Occupancy Expansion Space under Section 44 (unless the rent is at the
Market Rental Rate) and First Offer Space under Section 45 (unless the rent is
at the Market Rental Rate); (iv) rights under this Section 12 to sublet, assign
or be released from liability under this lease or restricting Landlord's rights
of recapture or other rights on subletting or assignment (except that Landlord
and Tenant may agree on provisions permitting subletting where the subtenant is
financially responsible and the sublandlord shares equally with Landlord the
profit received by the sublandlord from a subletting after paying all costs and
expenses associated with such subletting and all Rent with respect to such
space, and Landlord will have a second right of recapture when the specific
terms of a subleasing transaction have been agreed to); (v) termination rights
under Section 46; (vi) if the space to be leased is less than 100,000 Rentable
Square Feet, rights to install an antenna or satellite dish under Section 49;
but in any case Landlord may charge market rent for use of roof space; (vii)
rights to receive reports under Section 47; (viii) rights to set-off as the
result of a Landlord Default under Section 29; (ix) rights to receive or share
in the condemnation award under Section 15; (x) rights to supply Tenant's own
cleaning services (and have the cost of such cleaning removed from the
calculation of Expenses) as set forth in Section 5(c); (xi) rights to use
tenant's contractors for tenant work under Section 11 if the space to be leased
is one floor or less (if more than one floor, such tenant must pay a 5%
coordination fee to Landlord if such tenant uses its own contractors); (xii)
rights to receive details of Projections, review Landlord's files in connection
with Projections and contest Projections under Section 2(c)(i)(A), (xiii) if the
space leased is less than one full floor, rights to terminate this lease under
Section 5, and (xiv) if the space to be leased is one floor or less, rights to
receive a non-disturbance agreement. While rights to use parking spaces in the
Garage may be granted by Tenant, any such rights granted to a third party who
will then be a direct tenant of Landlord will reduce the number of spaces
available to Tenant under Section 48, by the number of spaces granted to said
third party. Any rights to lease Post-Occupancy Expansion Space or First Offer
Space afforded by Tenant to any Third Party to whom Landlord is directly leasing
space shall reduce Tenant's rights under this lease and shall be coordinated in
a manner to facilitate Landlord's management of the Building.
Within thirty (30) days after receipt of the Release Request,
provided that the conditions relating to a release described above have been
met, and Tenant is not then in Default under this lease, Landlord and Tenant
will enter into an amendment to this lease deleting the Released Space from this
lease on the commencement date of the direct lease for the balance of the Term
("Release Date"), in which event: the Term shall expire but only with respect to
the Released Space on the Release Date; the Base Rent and Tenant's Proportionate
Share shall be reduced by the Base Rent and Tenant's Proportionate Share
applicable to the Released Space but in no event by an amount less than the Base
Rent and Tenant's Proportionate Share included in the direct lease with the
third party tenant; Tenant will surrender possession of the Released Space in
the
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condition required in the direct lease for delivery of possession of the
Released Space to the third party tenants including construction of any demising
walls necessary to separate the Released Space from the remainder of the
Premises.
This lease, as so amended, will continue in full force and effect.
If the conditions set forth above for a release of Tenant from future rental
obligations on the Released Space are not met by the Release Request, the
Release Request will constitute a notice to Landlord of a subletting under
Section 12(c).
(f) Notwithstanding anything contained in this lease to the
contrary, and except as to any Release Space expressly released pursuant to
Section 12(e) above, no assignment of any portion of the Premises shall be
deemed to release Chicago Title and Trust Company or any subsequent assignees
from any liability under this lease, and Chicago Title and Trust Company and
subsequent assignees shall at all times remain primary obligors (and not a
"surety" or "guarantor") of all covenants and obligations to be performed by
Tenant hereunder. Without limitation on the foregoing, in the case of an
assignment, Chicago Title and Trust Company shall remain a primary obligor of
all such covenants and obligations, notwithstanding (i) any exercise by an
assignee of any rights or options (including extension, expansion and other
options) expressly granted under this lease as of the date of such assignment;
(ii) Landlord's prior forebearance or waiver of any rights or remedies against
such subtenant or assignee under this lease; and (iii) any arbitration pursuant
to the terms of this lease. Landlord shall have no obligation to proceed against
any or all assignees or enforce Tenant's obligations against any or all
assignees before proceeding against Chicago Title and Trust Company or a
subsequent assignee. Any estoppel letters given, approvals granted, settlements
entered into or agreements on rental rates by any assignee, if done pursuant to
and in accordance with the terms of this lease, existing as of the date of such
assignment shall be binding on Chicago Title and Trust Company. Any
modifications or amendments to this lease (other than confirmatory amendments in
accordance with this lease) after the date of such assignment shall not be
binding on Chicago Title and Trust Company, but such modifications and
amendments shall not affect Chicago Title and Trust Company's status as a
primary obligor with respect to those terms, comments and conditions of the
lease existing as of the date of such assignment.
13. Waiver of Certain Claims; Indemnity.
(a) Waiver. To the extent not expressly prohibited by law, Landlord
and Tenant each releases and waives any and all claims for, and rights to
recover, damages against and from the other, and the other's respective agents,
partners and employees (collectively, the "Released Parties"), for loss, damage
or destruction to any of its property (including the Premises, the Building and
their contents), the elements of which are insured against or insurable under
property or physical damage insurance policies required under Section 19 hereof.
In no event shall this clause be deemed, construed or asserted (i) to affect or
limit any claims or rights against any Released Parties other than the right to
recover damages for loss, damage or destruction to property, or (ii) to benefit
any third party other than the Released Parties.
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(b) Indemnity. To the extent not expressly prohibited by law,
Landlord and Tenant each (in either case, the "Indemnitor") agrees to hold
harmless and indemnify the other and the other's respective agents, partners and
employees (collectively, the "Indemnitees") from any losses, damages, judgments,
claims, expenses, costs and liabilities (collectively "Liabilities") imposed
upon or incurred by or asserted against the Indemnitees, including reasonable
attorney's fees and expenses, for death or injury to third parties other than
Indemnitees or loss of or damage to property of third parties other than
Indemnitees that may arise from or be caused directly or indirectly by any
negligent act of omission or commission or any willful misconduct of the
Indemnitor or any of the Indemnitor's respective agents, partners, or employees.
Such third parties shall not be deemed third party beneficiaries of this
agreement. In case any action, suit or proceeding is brought against any of the
Indemnitees by reason of any such act of the Indemnitor or any of the
Indemnitors respective agents, partners or employees, then the Indemnitor will,
at the Indemnitor's expense and at the option of said Indemnitees, by counsel
approved by said Indemnitees, resist and defend such action, suit or proceeding.
(c) The provisions of this Section 13 shall not amend or modify any
warranty by Landlord of Tenant Improvement work performed by Landlord, if any.
14. Damage or Destruction by Casualty.
(a) If the Premises or the Building shall be damaged by fire or
other casualty and if such damage does not render all or a substantial portion
(as hereinafter defined) of the Premises or the Building untenantable, then
Landlord shall proceed with reasonable promptness to repair and restore the
Premises or the Building so as to render the Premises tenantable, subject to
zoning laws and building codes then in effect. If the nonsignificant portion of
the Building (hereinafter defined) that is made untenantable includes all or a
portion of the Premises and Landlord fails to repair or restore such portion of
the Building within one hundred eighty (180) days after the date of such fire or
casualty as extended on account of Tenant Delays (as such term is defined in
Attachment 15 hereto), then if damage to the Building has a material adverse
impact on Tenant's ability to conduct business at the Premises Tenant may
terminate this lease, effective as of the date of notice of such election, by
giving written notice to Landlord within thirty (30) days after the expiration
of the one hundred eighty (180) day period, as extended for Tenant Delays.
(b) If any such damage renders all or a substantial portion of the
Premises or the Building untenantable, Landlord shall, with reasonable
promptness after the occurrence of such damage, estimate the length of time that
will be required to substantially complete the repair and restoration of the
Premises or the Building, as the case may be, necessitated by such damage and
shall by notice advise Tenant of such estimate. If it is so estimated that the
amount of time required to substantially complete such repair and restoration
will exceed two hundred forty (240) days or, in the event such damage renders
75,000 rentable square feet or more of the Premises or the Building
untenantable, four hundred twenty (420) days from the date such damage occurred,
then either
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Landlord or Tenant (but Landlord shall have such right, only if all or a
substantial portion of the Building is rendered untenantable and the estimated
time required to substantially complete such repair or restoration of the
Building will exceed the aforesaid time period and Tenant shall have such right,
in the case where all or a substantial part of the Building but not the Premises
is rendered untenantable, only if such damage to the Building has a material
adverse impact on Tenant's ability to conduct its business at the Premises)
shall have the right to terminate this lease as of the date of notice of such
election by giving notice to the other at any time within twenty (20) days after
Landlord gives Tenant the notice containing said estimate (it being understood
that Landlord may, if it elects to do so, also give such notice of termination
together with the notice containing said estimate). Unless this lease is
terminated as provided in the preceding sentence, Landlord shall proceed with
reasonable promptness to repair and restore the Building or the Premises so as
to render the Premises tenantable, subject to zoning laws and building codes
then in effect. If the Premises and/or Building, as the case may be, are not
substantially repaired or restored within the aforesaid time period (or within
the time period estimated by Landlord as aforesaid, if longer than the aforesaid
240 or 420 day period, as the case may be, and neither party terminated the
Lease as permitted), as extended on account of Tenant Delays, then Tenant may
terminate this lease, effective as of the date of notice of such election, by
giving written notice to Landlord within the thirty (30) day period after said
day or other period but prior to substantial completion of repair or
restoration.
(c) As used in Sections 14 and 15 hereof the term "substantial
portion of the Premises" shall mean one or more floors of the Premises and the
term "substantial portion of the Building" shall mean four or more floors of the
Building. The term "nonsignificant portion" shall mean less than one floor of
the Premises, in the case of the Premises, and less than four floors of the
Building, in case of the Building.
(d) Notwithstanding anything to the contrary herein set forth, (i)
Landlord shall have no duty pursuant to this Section 14 to repair or restore
Tenant Improvements, or any portion of improvements, additions or alterations
made by or on behalf of Tenant in the Premises or the Building, (ii) if any such
damage rendering all or a substantial part of the Premises or Building
untenantable shall occur during the last twelve (12) months of the Term, either
party shall have the option to terminate this lease by giving written notice to
the other within thirty (30) days after the date such damage occurred, and if
such option is so exercised, this Lease shall terminate as of the date of such
notice, and (iii) if any such damage rendering all or a substantial part of the
Premises or Building untenantable shall occur during the last twenty-four (24)
months of the Term and such damage has a material adverse impact on Tenant's
ability to conduct its business at the Premises, Tenant shall have the option to
terminate this lease by giving written notice to Landlord within thirty (30)
days of the date such damage occurred, and if such option is so exercised, this
lease shall terminate as of the date of such notice.
(e) In the event any such fire or casualty damage renders the
Premises untenantable and if this lease is not
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terminated pursuant to the foregoing provisions of this Section 14 by reason of
such damage, then Rent shall xxxxx during the period beginning with the date of
such damage and ending with the date when Landlord substantially completes its
repair or restoration required hereunder. Such abatement shall be in an amount
bearing the same ratio to the total amount of Rent for such period as the
portion of the Premises being repaired and restored by Landlord and not occupied
by or theretofore delivered to Tenant from time to time bears to the entire
Premises. In the event of termination of this lease pursuant to this Section 14,
Rent shall be apportioned on a per diem basis based on the proportion of the
Premises occupied and used by Tenant, if any, after the date of such casualty
and be paid to the date of termination.
(f) In the event of any such fire or other casualty, and if the
lease is not terminated pursuant to the foregoing provisions, Tenant shall
repair and restore any portion of alterations, additions or improvements made by
or on behalf of Tenant in the Premises which Landlord is not required to restore
pursuant to Sections 14(a), (b) and (d) hereof.
15. Eminent Domain. If the entire Building or a substantial part thereof, or any
part thereof which includes all or a substantial part of the Premises, shall be
taken or condemned by any competent authority for any public or quasi-public
use or purpose the Term shall end as of the date of taking by the condemning
authority. If the taking is of less than substantially all of the Building or
Premises, Landlord and Tenant shall have the right to terminate this lease in
the following circumstances:
(i) Landlord may terminate if (1) in Landlord's reasonable business
judgment restoration of the Building to substantially the same size and
quality is not economically justified and (2) more than ten percent (10%)
of the gross area of the Building is so taken by eminent domain;
(ii) Tenant may terminate if (1) any material portion of the
Premises (as determined in Tenant's reasonable judgment) is so taken by
eminent domain and (2) within sixty (60) days after such taking Landlord
has not been able to provide other comparable space in the Building to
temporarily add to the Premises to restore the size of the Premises to its
Rentable Area then being occupied by Tenant (and not subtenants) prior to
such taking and Landlord will not, based on Landlord's estimate of the
Rentable Area of the restored Building (such estimate to be delivered to
Tenant not more than forty-five (45) days after such taking), be able to
restore the Premises to 100% of its Rentable Area then being occupied by
Tenant (and not subtenants) prior to such taking by a date not more than
three hundred (300) days after the date of such taking. Landlord shall not
be bound to offer Tenant more than Tenant's Proportionate Share (based on
the Premises compared to the Building prior to such taking) of the
restored Building and if Tenant fails to terminate this Lease as provided
herein the size of the Premises and the Rent shall be reduced to such
share of the restored Building;
(iii) Either Landlord or Tenant may terminate this Lease if the
taking occurs within twenty-four (24) months prior
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to the then effective Expiration Date of the Term, as it may have been
extended.
If the taking is of less than substantially all of the Building or
Premises and if this lease is not terminated as provided above, Landlord shall
as soon as possible restore the Building as nearly as can practicably be done
(including the Premises) using all of the award received by Landlord so as to
provide, to the extent reasonably possible, comparable space and amenities to
those enjoyed by Tenant under this lease prior to the taking (or Tenant's
Proportionate Share of the Project in case of the application of the last
sentence of clause (ii) above); in such event this Lease shall continue in force
at the square foot rental rates and adjustment herein provided for the Premises
applied to the rentable square feet of the Premises existing in the Building as
restored (or Tenant's Proportionate Share of the Building in case of the
application of the last sentence of clause (ii) above), but rent shall xxxxx as
to the untenantable portion of the Premises as to periods when such portions of
the Premises are untenantable as a result of such taking and work of
restoration.
In any of the above termination cases, such termination notice may be
given not more than thirty (30) days after the taking (the taking for purposes
of this paragraph shall be the date when the taking authority requires
possession) and termination must be effective for the portion not taken not less
than fifteen (15) or more than sixty (60) days after such notice is given. For
the portion taken, the termination shall be effective as of the date of the
taking. The amount of damages resulting to Landlord and Tenant respectively, and
to their respective interests in and to the Building and in, to and in
connection with lease, by reason of such exercise of the power of eminent
domain, shall be separately determined and computed by the court having
jurisdiction and separate awards and judgments with respect to such damages to
Landlord and Tenant, respectively, and to each of their respective interests,
shall be made and entered. In the event that such court shall make a single
award without separately determining the respective interests of Landlord and
Tenant, and if Landlord and Tenant shall not agree in writing as to their
respective portions of such award within twenty (20) days after the date of the
final determination of such court of the amount thereof, Landlord and Tenant
agree to submit the matter to such court in stipulation for the purposes of a
judgment determinative of their respective shares. Tenant shall have the right
to seek a separate award, if available, for loss or damage of its business or
personal property in the Premises or relocation costs. Any provisions of this
Lease which provide for termination of this Lease upon a taking shall not cause
Tenant's rights to any award to be less than would exist in the absence of such
provisions. Notwithstanding anything herein to the contrary, Tenant's rights to
any award for a taking or condemnation shall be subject and subordinate to the
rights of any holder of a First Mortgage.
16. Default: Landlord's Rights and Remedies.
(a) The occurrence of any one or more of the following shall
constitute a default by Tenant under this lease ("Default"):
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(i) Failure by Tenant to pay any Rent or any other moneys required
to be paid by Tenant under this Lease within ten (10) days after written
notice of the failure to pay on the due date;
(ii) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this lease (i.e., other than any
described in Section 16(a)(i), if such failure shall continue for thirty
(30) days after notice of the breach thereof (plus, if such failure cannot
be cured or corrected within that time, such additional reasonable time as
may be reasonably necessary if Tenant has commenced curing such failure
within such thirty (30) days and is diligently pursuing the remedies or
steps necessary to cure or correct such failure, so long as Tenant gives
Landlord weekly written reports of its progress;
(iii) The levy upon execution or the attachment by legal process of
the leasehold interest of Tenant, or the filing or creation of a lien in
respect of such leasehold interest, which lien shall not be released or
discharged within sixty (60) days from the date of such filing or
otherwise remedied pursuant to Section 32;
(b) If a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct, separate and cumulative and
shall not operate to exclude or deprive Landlord of any other right or remedy
allowed to it at law or in equity or elsewhere in this lease:
(i) Landlord may terminate this lease by giving Tenant written
notice of Landlord's election to do so, in which event the Term of this
lease shall end, and all right, title and interest of Tenant hereunder
shall expire on the date specified in such notice;
(ii) Landlord may terminate the right of Tenant to possession of the
Premises without terminating this lease, by giving Tenant written notice
of Landlord's election to do so, whereupon the right of Tenant to
possession of the Premises or any part thereof shall cease on the date
specified in such notice;
(iii) Landlord may exercise all of its remedies at law or in equity;
(iv) Landlord may set off any amounts owed to Landlord by Tenant
hereunder as a result of such Default against any amounts owed Tenant
under Section 47 for the CT&T Participation;
(v) Landlord may, but only under the circumstances set forth in
Section 47 and payment of any price required by Section 47, terminate the
CT&T Participation; and
(vi) In the event of a Default resulting from the breach of a
material covenant by Tenant hereunder, after Landlord has given Tenant any
notice required hereunder and any applicable grace period has expired,
then, ten (10) days after Landlord delivers an additional notice to Tenant
stating that Landlord intends to pursue its remedies under this Section
16(b)(vi), Landlord may perform such covenant
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on behalf of Tenant and any reasonable amount or amounts which Landlord
shall advance on that behalf shall be repaid by Tenant to Landlord within
ten (10) days after demand by Tenant together with interest thereon at the
Prime Plus Rate from the date of such advance to the repayment thereof in
full.
(c) If Landlord exercises either of the remedies provided for in
subparagraphs (i) and (ii) of the foregoing Section 16(b), Tenant shall
surrender possession of and vacate the Premises and immediately deliver
possession thereof to Landlord, and Landlord may re-enter and take complete and
peaceful possession of the Premises, with or without process of law, full and
complete license so to do being hereby granted to Landlord, and Landlord may
remove all occupants and property therefrom, using such force as may be lawful,
without being deemed in any manner guilty of trespass, eviction or forcible
entry and detainer, and without relinquishing Landlord's right to Rent or any
other right given to Landlord hereunder or by law or in equity.
(d) If Landlord terminates the right of Tenant to possession of the
Premises without terminating this lease, such termination of possession shall
not release Tenant, in whole or in part, from Tenant's obligation to pay the
Rent hereunder for the remainder of the Term. Landlord shall have the right,
from time to time, to recover from Tenant, and Tenant shall remain liable for,
all Rent and any other sums thereafter accruing as they become due under this
lease to the end of the Term. Landlord shall use reasonable efforts to relet
the Premises for the account of Tenant for such rent, for such time (which may
be for a term extending beyond the end of the Term), in such portions and upon
such terms as Landlord in Landlord's sole discretion shall determine, and
Landlord shall not be required to accept any tenant offered by Tenant or to
observe any instructions given by Tenant relative to such reletting. Landlord
may give priority over leasing the Premises to any other space Landlord desires
to lease in the Building and shall not be required in any case to offer rent,
length of terms or other terms for the Premises which are or would be less
favorable to Landlord than those being offered for comparable space by Landlord
in the Building. Also, in any such case, Landlord may make repairs, alterations
and additions in or to the Premises and redecorate the same to fulfill the
requirements of a specific tenant and the cost thereof shall be deemed to be a
cost of reletting the Premises; provided, however, expenses of reletting shall
not include such costs which would be amortized during periods after the then
remaining Term. Landlord may employ a leasing broker or finder and any broker's
commission or finder's fee paid by Landlord in connection with the reletting of
the Premises shall be deemed to be an expense of reletting the Premises;
provided, however, Landlord's expenses of reletting shall not include leasing
commissions computed with respect to periods after the then remaining Term.
Landlord may collect the rents from any such reletting and apply the same first
to the payment of the expenses of reentry, redecoration, repair and alterations,
brokerage fees and other such expenses of reletting and second to the payment of
Rent herein provided to be paid by Tenant, and any excess or residue shall
operate only as an offsetting credit against the amount of Rent due and owing or
as the same thereafter becomes due and payable hereunder, but the use of such
offsetting credit to reduce the amount of Rent due
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Landlord, if any, shall not be deemed to give Tenant any right, title or
interest in or to such excess or residue and any such excess or residue shall
belong to Landlord solely. No such re-entry, repossession, repairs,
alterations, additions or reletting shall be construed as an eviction or ouster
of Tenant or as an election on Landlord's part to terminate this lease, unless a
written notice of such intention is given to Tenant, or shall operate to release
Tenant in whole or in part from any of Tenant's obligations hereunder, and
Landlord may, at any time and from time to time, xxx and recover judgment for
any deficiencies from time to time remaining and expenses of reletting after the
application from time to time of the proceeds of any such reletting.
(e) In the event of the termination of this lease by Landlord as
provided for by subparagraph (i) of Section 16(b), Landlord shall be entitled to
recover from Tenant all the fixed dollar amounts of Rent accrued and unpaid for
the period up to and including such termination date, as well as all other
additional sums payable by Tenant, or for which Tenant is liable under any of
the provisions of this lease, which may be then owing and unpaid, and all costs
and expenses, including without limitation court costs and reasonable attorneys'
fees incurred by Landlord in the enforcement of its rights and remedies
hereunder, and in addition, Landlord shall be entitled to recover as damages for
loss of the bargain and not as a penalty (i) the excess, if any, at the time of
such termination, of the present value of the aggregate rents which would have
come due hereunder during the remainder of the Term pursuant to Sections 1 and 2
of this lease, over the then present value of the then fair rental value of the
Premises for the balance of the Term, such present value to be computed in each
case on the basis of a discount rate equal to the rate of interest then being
paid by Landlord on the loan secured by the First Mortgage or if no such loan
exists, then at the then current Prime Rate (as defined in Section 25(g)
hereof), and (ii) any damages in addition thereto, including reasonable
attorneys' fees and court costs, which Landlord shall have sustained by reason
of the breach of any of the covenants of this lease other than for the payment
of Rent.
(f) All property removed from the Premises by Landlord pursuant to
any provisions of this lease or by law may be handled, removed or stored by
Landlord at the cost and expense of Tenant, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant shall pay
Landlord for all expenses incurred by Landlord in such removal and for storage
charges for such property so long as the same shall be in Landlord's possession
or under Landlord's control. All such property not removed from the Premises or
retaken from storage by Tenant within thirty (30) days after the end of the
Term, however terminated, shall, at Landlord's option, be conclusively deemed to
have been conveyed by Tenant to Landlord as by xxxx of sale, without further
payment or credit by Landlord to Tenant.
(g) Tenant shall pay all of Landlord's costs, charges and expenses,
including without limitation court costs and reasonable attorneys' fees,
incurred in successfully enforcing Tenant's obligations under this lease.
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17. Subordination.
(a) Landlord may have heretofore or may hereafter encumber with a
mortgage or trust deed the Real Property, or any interest therein, and may have
heretofore and may hereafter sell and lease back the Land, or any part thereof,
and may have heretofore or may hereafter encumber the leasehold estate under
such lease with a mortgage or trust deed. (Any such mortgage or trust deed is
herein called a "Mortgage" and the holder of any such mortgage or the
beneficiary under any such trust deed is herein called a "Mortgagee". Any such
lease of the underlying land is herein called a "Ground Lease", and the lessor
under any such lease is herein called a "Ground Lessor". Any Mortgage which is a
first lien against the Building, the Land, the leasehold estate under a Ground
Lease or any interest therein is herein called a "First Mortgage" and the holder
or beneficiary of any First Mortgage is herein called a "First Mortgagee".)
(b) If requested by a First Mortgagee or Ground Lessor, Tenant will
either (i) subordinate its interest in this lease to said First Mortgage or
Ground Lease, and to any and all advances made thereunder and to the interest
thereon, and to all renewals, replacements, supplements, amendments,
modifications and extensions thereof, so long as any First Mortgagee or Ground
Lessor requesting said subordination executes and delivers to Tenant a
subordination, attornment and non-disturbance agreement reasonably satisfactory
to Tenant and the Mortgagee or Ground Lessor giving due consideration to the
concerns of a tenant and a mortgagee or ground lessor in all respects, which
agreement shall contain provisions allowing Tenant to continue to occupy the
Premises pursuant to this lease notwithstanding a foreclosure of the First
Mortgage or termination of the Ground Lease, so long as Tenant is not in default
hereunder, or (ii) make certain of Tenant's rights and interests in this lease
superior thereto and Tenant will promptly execute and deliver such agreement or
agreements as may be reasonably required by such First Mortgagee or Ground
Lessor and shall agree that this lease shall not be terminated (except pursuant
to the express terms of this lease) or amended to shorten the Term or reduce the
Rent without the First Mortgagee's or Ground Lessor's consent. Tenant covenants
it will not subordinate this lease to any mortgage other than a First Mortgage
without the prior written consent of the First Mortgagee.
18. Mortgagee Protection. Tenant agrees to give any First Mortgagee and Ground
Lessor, by registered or certified mail, a copy of any notice or claim of
default served upon the Landlord by Tenant, provided that prior to such notice
Tenant has been notified in writing (by way of service on Tenant of a copy of
an assignment of Landlord's interests in leases, or otherwise) of the address of
such First Mortgagee or Ground Lessor. Tenant's obligations under this Section
18 are solely for the benefit of a First Mortgagee and Ground Lessor and are
expressly intended not to benefit Landlord. The First Mortgagee and Ground
Lessor shall have the right to cure Landlord Defaults within the time periods
herein set forth before Tenant may exercise any rights under Sections 29(a) or
(c).
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19. Insurance and Subrogation.
(a) Tenant shall carry insurance during the entire Term hereof
insuring Tenant and insuring Landlord, Building Manager and their respective
agents, partners and employees, as their interests may appear, with terms,
coverages and in companies with a rating of A.M. Best "A" or better, and with
such increases in limits as Landlord may from time to time reasonably request,
but initially Tenant shall maintain the following coverages in the following
amounts:
(i) Public liability insurance with the broad form commercial
liability endorsement, including contractual liability insurance covering
Tenant's indemnity obligations hereunder, in an amount not less than
$10,000,000.00 per occurrence.
(ii) "All risk" physical damage insurance including fire, sprinkler
leakage, vandalism and extended coverage for the full replacement cost
of all additions, improvements and alterations to the Premises (except to
the extent the same are part of building standard work performed by
Landlord pursuant to the Workletter, if any, attached hereto) and of all
office furniture, trade fixtures, office equipment, merchandise and all
other items of Tenant's property on the Premises; plus valuable papers
insurance covering documents and papers of value in Tenant's vaults with
limits not less than those customarily carried by prudent tenants in such
businesses.
Tenant shall, prior to the commencement of the Term and from time to
time during the Term, furnish to Landlord policies or certificates (with proof
of payment) evidencing the foregoing insurance coverage. Tenant's policies shall
state that such insurance coverage may not be reduced or cancelled or be allowed
to expire without at least thirty (30) days' prior written notice to Landlord
and Tenant (unless such cancellation is due to non-payment of premium, and in
that case only ten (10) days' prior written notice shall be sufficient).
(b) Landlord and Tenant agree to have all policies of physical
damage insurance which may be carried by either of them endorsed with a clause
providing that any release from liability of or waiver of claim for recovery
from the other party or any of the parties named in Section 19(a) above entered
into in writing by the insured thereunder prior to any loss or damage shall not
affect the validity of said policy or the right of the insured to recover
thereunder. Each such policy shall provide further that the insurer waives all
rights of subrogation which such insurer might have against any of the parties
named in Section 19(a) above, and Landlord and Tenant shall first seek recovery
under any applicable insurance policy before proceeding against the other.
(c) Landlord shall carry insurance during the entire Term hereof,
with commercially reasonable deductible amounts and with insurance companies
with a rating of A.M. Best "A" or better, and with such increases in limits as
Tenant may from time to time reasonably request, but initially Landlord shall
maintain the following coverages in the following amounts: (i) "all-risk"
replacement cost property insurance on the Building against fire and other
extended coverage perils (including boiler and machinery and electrical
apparatus
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coverage) in an amount sufficient to prevent Landlord from being deemed a
co-insurer of the risks insured under the policy, but in no event less than the
amount, if any, required by the First Mortgagee, (ii) commercial liability
insurance, including contractual liability (which also insures Tenant but
excluding coverage over liability incurred by Tenant in the operation of its
business), in an amount not less than $10,000,000.00 per occurrence, and (iii)
rent loss insurance covering loss of rents from Tenant under this lease and
other tenants under other leases in the Building in such amounts as a prudent
owner of a first class office building in the City of Chicago, Illinois, would
carry.
20. Nonwaiver. No waiver of any condition expressed in this lease shall be
implied by any neglect of either party to enforce any remedy on account of the
violation of such condition, whether or not such violation be continued or
repeated subsequently, and no express waiver shall affect any condition other
than the one specified in such waiver and that one only for the time and in the
manner specifically stated. Without limiting Landlord's rights under the
provisions of Section 8, it is agreed that no receipt of moneys by Landlord from
Tenant after the termination in any way of the Term or of Tenant's right of
possession hereunder or after the giving of any notice shall reinstate, continue
or extend the Term or affect any notice given to Tenant prior to the receipt of
such moneys. It is also agreed that after the service of notice or the
commencement of a suit or after final judgment for possession of the Premises,
Landlord may receive and collect any moneys due, and the payment of said moneys
shall not waive or affect any said notice, suit or judgment.
21. Estoppel Certificate.
(a) Tenant agrees that from time to time upon not less than ten (10)
days (or five (5) business days if the entity issuing the estoppel certificate
is issuing it unconditionally) prior written request by Landlord, or any
existing or prospective First Mortgagee or Ground Lessor, Tenant will, and
Tenant will cause any subtenant, licensee, concessionaire or other occupant of
the Premises claiming by, through or under Tenant to, complete, execute and
deliver to Landlord or Landlord's designee or to any First Mortgagee or Ground
Lessor, a written estoppel certificate certifying (i) that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the lease as modified is in full force and effect and identifying the
modifications); (ii) the date upon which Tenant began paying Rent and the dates
to which the Rent and other charges have been paid; (iii) that to the best of
Tenant's knowledge the Landlord is not in default under any provision of this
lease, or, if in default, the nature thereof in detail; (iv) that the Premises
have been completed in accordance with the terms hereof and Tenant is in
occupancy and paying Rent on a current basis with no rental offsets or claims
(or if such is not the case, a statement as to the status of the Premises,
Tenant's offsets and/or claims); (v) that there has been no prepayment of Rent
other than that provided for in the lease; (vi) that there are no actions,
whether voluntary or otherwise, pending against Tenant under the Bankruptcy Code
or the bankruptcy laws of any state; (vii) the current CT&T Participation and
any other information reasonably requested in connection with the CT&T
Participation; and (viii) such other matters as may be
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reasonably required by the Landlord, First Mortgagee, or Ground Lessor,
including, without limitation, any other information concerning the status of
this lease or other parties' performance hereunder reasonably requested by the
party to whom such estoppel certificate is to be addressed. Tenant's failure to
complete, execute and deliver the aforesaid estoppel certificate within said
time period shall be deemed a default under Section 16 subject to notice and an
opportunity to cure or correct such default as provided in Section 16(a)(ii),
except that the time period for cure or correction shall be limited to three (3)
business days after Tenant's receipt of Landlord's notice of default.
(b) If Tenant in connection with any proposed assignment,
subletting, financing or other similar transaction desires an estoppel
certificate from Landlord, Landlord shall upon not less than ten (10) days (or
five (5) business days if the entity issuing the estoppel certificate is issuing
it unconditionally) prior written request by Tenant, complete, execute and
deliver to Tenant or Tenant's designee a written estoppel certificate certifying
(i) that this lease is unmodified and in full force and effect (or if there have
been modifications, that the lease as modified is in full force and effect and
identifying the modifications); (ii) the date upon which Tenant began paying
Rent and the dates to which the Rent and other charges have been paid; (iii)
that to the best of Landlord's knowledge the Tenant is not in default under any
provision of this lease, or, if in default, the nature thereof in detail; (iv)
that the Premises have been completed in accordance with the terms hereof and
Tenant is in occupancy and paying Rent on a current basis and that Landlord has
no unsatisfied claims against Tenant (or if such is not the case, a statement as
to the status of the Premises and/or Landlord's claims); (v) that there has been
no prepayment of Rent other than that provided for in the lease; (vi) that there
are no actions, whether voluntary or otherwise, pending against Landlord under
the Bankruptcy Code or the bankruptcy laws of any state; and (vii) such other
matters as may be reasonably required by the Tenant or its designee, including,
without limitation, any other information concerning the status of this lease or
other parties' performance hereunder reasonably requested by the party to whom
such estoppel certificate is to be addressed. Landlord's failure to complete,
execute and deliver the aforesaid estoppel certificate within said time period
shall be deemed a default under Section 29 subject to notice and an opportunity
to cure such default as provided in Section 29 except that the time period for
cure shall be three (3) business days after Landlord's receipt of Tenant's
notice of default.
22. Authority. Tenant (a) represents and warrants that this lease has been duly
authorized, executed and delivered by and on behalf of Tenant and constitutes
the valid and binding agreement of Tenant in accordance with the terms hereof
and (b) if Landlord so requests, shall deliver to Landlord, concurrently with
the delivery of this lease executed by Tenant, certified resolutions of the
board of directors of Tenant authorizing Tenant's execution and delivery of this
lease and the performance of Tenants obligations hereunder. Landlord represents
and warrants that all of the persons who are general or managing partners in
said partnership have executed this lease on behalf of Tenant, or that this
lease has been executed and delivered pursuant to and in conformity with
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a valid and effective authorization therefor by all of the general or managing
partners of such partnership and is and constitutes the valid and binding
agreement of the partnership in accordance with the terms hereof.
23. Real Estate Brokers. Tenant represents and warrants that Tenant has directly
dealt with and only with Equis Corporation ("Equis") (whose commission, if any,
shall be paid by Landlord pursuant to separate agreement dated November 28,
1988, as amended by agreements dated May 5, 1989 and June 30, 1989) as broker in
connection with this lease and agrees to indemnify and hold Landlord, and the
Building Manager and leasing agent of the Real Property harmless from all
claims, losses, liabilities, damages, liens, costs and expenses including
without limitation reasonable attorneys' fees, arising from any claims or
demands of any other broker or brokers or finders or Equis other than pursuant
to the aforesaid brokerage agreement for any commission due or alleged to be due
such other broker or brokers or finders or Equis other than pursuant to the
aforesaid brokerage agreement claiming to have dealt with Tenant in connection
with this lease or with whom Tenant hereafter deals or whom Tenant hereafter
employs.
Landlord represents to Tenant that Landlord has not dealt with any broker
other than Equis in negotiating this lease and agrees to indemnify and hold
Tenant harmless from and against any and all claims, losses, liabilities,
damages, liens, costs and expenses, including, without limitation, reasonable
attorneys' fees arising from any claims or demands of Equis arising pursuant to
the aforesaid brokerage agreement or any other broker or brokers or finders for
any commission due or alleged to be due Equis arising pursuant to the aforesaid
brokerage agreement or such other broker or brokers or finders claiming to have
dealt with Landlord in connection with this lease or with whom Landlord
hereafter deals or whom Landlord hereafter employs. The failure of Landlord to
pay Equis any amounts due Equis from time to time pursuant to the aforesaid
brokerage agreement between Landlord and Equis shall constitute a Landlord
default under Section 29 hereof, subject to the notice and cure periods
contained in Section 29.
24. Notices. All notices, requests, demands, or other communications to or upon
Landlord or Tenant desired or required to be given under any of the provisions
hereof shall be in writing. Any notices or demands from Landlord to Tenant shall
be deemed to have been given if a copy thereof has been personally delivered to
Tenant (including without limitation delivery by facsimile transmission,
messenger or courier, with evidence of receipt) or mailed by United States
registered or certified mail addressed to Tenant prior to the Low-Rise
Commencement Date at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, to the
attention of both the General Counsel and the Senior Vice president-Real
Estate Administration, and after the Low-Rise Commencement Date at the
Premises. Any notices or demands from Landlord to Tenant may be signed by
Landlord, its beneficiary, the managing agent of the Building (the "Building
Manager") or any agent of any of them. After the Low-Rise Commencement Date if
Tenant is a corporation and is not in occupancy of the Premises, any notices or
demands from Landlord to Tenant shall also be deemed to have been given if a
copy thereof is mailed by registered or certified mail to Tenants registered
agent in Illinois. Any notices or demands
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from Tenant to Landlord shall be deemed to have been given if a copy thereof has
been personally delivered to Landlord (including without limitation delivery by
facsimile transmission, messenger or courier, with evidence of receipt) at
Landlord's address for payment of Rent or mailed by registered or certified mail
return receipt requested at Landlord's address for payment of rent, with a copy
to the Building Manager who shall initially be The Linpro Company whose address
is 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx or such other corporation,
partnership or other entity selected by Landlord, in its sole discretion, as the
manager for the Building. Either party may, upon notice to the other, change its
address for receipt of notices or demands. All notices to or demands upon
Landlord or Tenant mailed by registered or certified mail shall be deemed served
at the time the same were posted.
25. Miscellaneous.
(a) Each provision of this lease shall extend to and shall bind and
inure to the benefit not only of Landlord and Tenant, but also their respective
heirs, legal representatives, successors and assigns, but this provision shall
not operate to permit any assignment, subletting, mortgage, lien, charge, or
other transfer or encumbrance contrary to the provisions of this lease.
(b) No modification, waiver or amendment of this lease or any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in
writing signed by the party against whom such modification, waiver or amendment
is asserted.
(c) Submission of this instrument for examination shall not
constitute a reservation of or option for the Premises or in any manner bind
Landlord, and no lease or obligation of Landlord shall arise until this
instrument is signed and delivered by Landlord and Tenant.
(d) Clauses, plats, exhibits, attachments and riders, if any,
affixed to this lease are made an integral part hereof.
(e) The headings of Sections are for convenience only and do not
limit or expand, or affect the interpretation of, the contents of the Sections.
(f) Time is of the essence of this lease and of each and all
provisions hereof.
(g) All amounts (including, without limitation, Base Rent and
Additional Rent) owed by Tenant to Landlord or by Landlord to Tenant pursuant to
any provision of this lease shall not be deemed a loan but shall bear interest
from the date due in the case of Base Rent and Additional Rent, and in the case
of other amounts, seven days from the date due, until paid at the annual rate
equal to the rate of interest announced from time to time by The First National
Bank of Chicago at Chicago, Illinois, or any successor thereto, as its corporate
base rate (the "Prime Rate"), changing as and when said corporate base rate
changes plus two percent (2%) per annum (the "Prime Plus Rate"), unless a lesser
rate shall then be the maximum rate permissible by law with respect thereto, in
which event said lesser rate shall be charged. Notwithstanding the foregoing, if
Tenant is responsible for Taxes pursuant to
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Section 2(c)(i)(C) hereof, in the event Tenant fails to pay Taxes in accordance
with said Section 2(c)(i)(C) the amount of Taxes owed pursuant to said Section
shall bear interest from the date due until paid at the penalty rate then
charged by the Xxxx County Assessor's Office.
(h) The invalidity of any provision of this lease shall not impair
or affect in any manner the validity, enforceability or effect of any other
provision of this lease.
(i) All understandings and agreements, oral or written, including
that certain 38-page letter of intent dated December 22, 1988, heretofore made
between the parties hereto and any of their agents with respect to a lease at
the Building are merged in this lease, which alone fully and completely
expresses the agreement between Landlord and Tenant.
(j) Any rights, reserved or granted to Landlord hereunder may be
exercised by Landlord, its beneficiaries (if Landlord is a land trust) or the
Building Manager or their respective agents, employees, contractors or
designees.
26. Quiet Enjoyment. The Landlord covenants and agrees that Tenant, on paying
the Rent, charges for services and other payments herein reserved, and, on
keeping, observing and performing all the other terms, covenants, conditions,
provisions and agreements herein contained on the part of Tenant to be kept,
observed and performed, shall, during the Term, peaceably and quietly have, hold
and enjoy the Premises subject to the terms, covenants, conditions, provisions
and agreements contained herein. Without limiting the generality of the
foregoing, the Landlord shall during the Term of the lease regularly and timely
pay all payments of principal and interest and other obligations of the Landlord
under any mortgage, trust deed or ground lease (if Tenant's right to possession
of the Premises would be disturbed, or Tenant's rights under Section 47 would be
adversely affected, by foreclosure of the mortgage or trust deed or termination
of the ground lease), any Taxes (except as may be contested pursuant to the
terms hereof and of any mortgage or trust deed), and any amounts due mechanics
or materialmen performing any work on behalf of Landlord in or about the
Building which would have priority over Tenant's right to possession of the
premises (except any which are in good faith contested by Landlord as allowed by
the terms of any mortgage or trust deed).
27. Building Directory. Landlord will provide for three computerized Building
directories, two to be located in the Building lobby and one to be located in
the rotunda. Landlord covenants to maintain such directories and to keep them
operational throughout the Term. During the Term, Landlord will list the names
of Tenant and all of Tenant's departments and divisions, and individual officers
and managers who are working in the Premises in such directories at no cost to
Tenant. Landlord shall make such subsequent additions, deletions and changes in
the names of Tenant, Tenant's departments and divisions and individual officers
and managers as Tenant requests from time to time in and to the initial listing
after the Low-Rise Commencement Date at no cost to Tenant.
28. Good Faith and Reasonableness. Tenant and Landlord acknowledge their duty to
exercise their rights and remedies,
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and perform their obligations, reasonably and in good faith. Wherever a party's
consent or approval is required, such consent or approval shall not be
unreasonably withheld, denied or delayed. Whenever the provisions of this lease
allow the Landlord or the Tenant to perform or not perform some act at its
option, in its judgment, or to its satisfaction, the decision of the Landlord
and Tenant to perform or not perform such act shall be reasonable.
29. Landlord's Default and Tenant's Remedies. In the event of the Landlord's
default under any covenant, term or provision of this lease, other than those
which are the subject of Sections 50 and 51 of this lease, subject to Tenant's
compliance with the provisions of Section 18 the Tenant shall have, and may
exercise, the following rights and remedies in addition to (and without limiting
or being limited by) any other rights and remedies as provided in this lease, or
as otherwise afforded at law or in equity, all such rights and remedies to be
distinct, separate and cumulative, and the exercise or assertion of any of them
not to operate to preclude the simultaneous, or subsequent exercise, or to
deprive the Tenant, of any right or remedy:
(a) Termination of Lease. The Tenant may terminate this lease by
delivering to the Landlord written notice thereof in the event the
Landlord fails to observe or perform any material covenant, agreement,
condition or provision of this lease if such failure shall continue, after
receipt by the Landlord of written notice from the Tenant specifying such
failure, for a period of thirty (30) days, unless such failure requires
work to be performed, acts to be done, or conditions to be removed which,
by their nature, cannot reasonably be performed, done or removed, as the
case may be, within such period, in which event, if the Landlord shall
have commenced curing or correcting the same within such period, and shall
have diligently and continuously prosecuted such cure or correction to
completion, and shall, at Tenant's request, have provided the Tenant with
weekly written reports of the status of such cure, then such rights of
termination shall be extinguished as to such failure.
(b) Damages. The Tenant may recover from the Landlord as damages any
loss, cost or expense of any kind or nature at any time suffered or
incurred by any of them on account of the failure by the Landlord to
observe and abide by any covenants, agreements, provisions or conditions
of this lease for a period of thirty (30) days after written notice therof
from Tenant (except that if such default cannot be cured within said
30-day period, this period shall be extended for a reasonable additional
time, provided that Landlord commences to cure such default within the
30-day period and proceeds diligently thereafter to effect such cure and
provides Tenant, at Tenant's request, with weekly written reports of the
status of such cure). As to any such damages, whether suffered or incurred
before or after (or on account of) any termination of this lease, such
right to recovery shall survive such termination.
(c) Offset for Non-Performance. In case the Landlord shall fail or
neglect to keep and perform any of the covenants or agreements in this
lease contained on the part
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of the Landlord to be kept and performed, and if said default shall
continue for thirty (30) days (or such longer period as may reasonably be
required to perform such covenant provided Landlord promptly commences and
diligently pursues performance or such shorter reasonable period if
emergency repairs, maintenance, restorations, renewals or alterations are
required and Landlord shall have provided Tenant with weekly written
reports of the status of such cure) after written notice to Landlord to
cure the specific default, then, in such event, the Tenant, in addition to
all other remedies provided hereunder, may at its election, (i) compel
Landlord's performance or prevent breach of any of the covenants or
agreements to be kept or performed by Landlord by appropriate legal
proceedings; or (ii) in the case of a covenant, an agreement or work which
is material to Tenant's occupancy of the Premises, give to Landlord an
additional notice stating that Tenant intends to pursue its remedies under
this Section 29(c)(ii) and then, ten (10) days after the giving of such
notice, perform such covenant, agreement or work for or on behalf of the
Landlord or make good any such default and any reasonable amount or
amounts which the Tenant shall advance on that behalf, shall be repaid by
the Landlord to the Tenant within ten (10) days after demand by Tenant,
together with interest thereon at the Prime Plus Rate from the date of
such advance to the repayment thereof in full; and if the Landlord shall
not repay any such amount or amounts within ten (10) days after demand by
Tenant, the Tenant may, without forfeiture of its Term herein, withhold or
deduct the same, together with interest thereon as aforesaid, from the
next installment or installments of Base Rent and Additional Rent
thereafter to become due to Landlord under this lease until the amount so
advanced and interest thereon is fully recovered. Nothing herein contained
shall preclude the Tenant from proceeding by other means to collect the
amount so paid by it as aforesaid without waiting for rental offsets to
accrue. In the event Tenant elects to perform such covenant, agreement or
work for or on behalf of Landlord or make good any such default Tenant
shall use reasonable efforts not to cause an additional default under the
First Mortgage or adversely affect other tenants' occupancy of the
Building. In addition, before Tenant performs any work involving the
structure or systems of the Building, Tenant will notify Landlord and
Landlord shall have three (3) business days thereafter in which to submit
to Tenant the name of a contractor that is acceptable to Landlord to
perform such work, and provided such contractor is able and willing to
perform such work on a timely basis, Tenant shall use such contractor to
perform such work.
30. Title and Covenant Against Liens. Landlord's title is and always shall be
paramount to the title of Tenant, and nothing in this Lease contained shall
empower Tenant to do any act which can, shall or may encumber the title of
Landlord. Tenant covenants and agrees not to suffer or permit any lien of
mechanics or materialmen to be placed upon or against the Premises, the
Building, the Land or against the Tenant's leasehold interest in the Premises
and, in case of any such lien attaching, (i) to immediately pay and remove same,
or (ii) to contest such lien in good faith and to cause Landlord's title insurer
(if Tenant or a company affiliated with Tenant is such title insurer, then such
title insurer shall act as a
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fiduciary and apply underwriting standards similar to those which would be
applied in other similar situations, but where the title insurer is an
independent third party) to insure over such lien or deliver an indemnity bond
in favor of Landlord or such other persons as Landlord shall designate in an
amount reasonably requested by Landlord or deliver such other security or
indemnity as Landlord may reasonably require. In the case of (ii) above, Tenant
shall regularly advise Landlord as to the status of such lien claim and shall in
any event cause such lien to be released prior to foreclosure thereof. Tenant
has no authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon the Premises, the Building or the Land, and any and
all liens and encumbrances created by Tenant shall attach only to Tenant's
interest in the Premises. If any such liens so attach and Tenant fails to
fulfill the requirements of (i) or (ii) above, then Landlord, at its election,
may pay and satisfy the same, and in such event the sums so paid by Landlord,
with interest from the date of payment at the Prime Plus Rate shall be deemed to
be additional rent due and payable by Tenant immediately upon written notice
from Landlord.
31. Secured Area.
(a) Notwithstanding anything contained in this lease to the
contrary, Tenant may, if Tenant complies with Section 31(b) below, provide its
own locks to areas within the Premises (individually a "Secured Area" and
collectively the "Secured Areas"). Tenant need not furnish Landlord with keys to
the Secured Areas, but at the termination of the Term, Tenant shall surrender
all such keys to Landlord. If Landlord reasonably determines that an emergency
or other situation exists in the Building or the Premises, including without
limitation, a fire or flood, requiring Landlord to gain access to a Secured
Area, then Landlord may forcibly enter such Secured Area. In such event,
Landlord shall have no liability whatsoever to Tenant to repair or reconstruct
any entrance, corridor or other door or other portions of the Premises or the
Secured Area damaged as a result of the forcible entry by Landlord.
Notwithstanding the foregoing, Landlord shall make a reasonable effort to
contact Tenant or its representative to secure access to such Secured Area prior
to a forcible entry. Landlord shall have no obligation to provide janitorial,
maintenance or any other services to any of the Secured Areas if Landlord must
have access to the Secured Area to perform such service.
(b) Tenant may designate an area of the Premises as a Secured Area
by giving ten (10) days prior written notice to Landlord showing the Secured
Area and the name of a representative of Tenant to be contacted and the manner
of contact to avoid a forcible entry as described in Section 31(a) above. Tenant
may revoke its designation of an area of the Premises as a Secured Area by
giving ten (10) days prior written notice to Landlord and delivering to Landlord
copies of the keys to the locks restricting access to such area, whereupon
Landlord will again be obligated to provide janitorial service to such area.
32. Bankruptcy or Insolvency.
(a) Neither Tenant's interest in this lease nor any estate hereby
created in Tenant shall pass to any trustee
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[except as may specifically be provided pursuant to the provisions of the
bankruptcy laws promulgated by the United States government, currently codified
in the Bankruptcy Code, 11 U.S.C. 101 et seq. as amended from time to time (the
"Bankruptcy Code")] or receiver or assignee for the benefit of creditors or
otherwise by operation of law.
(b) In the event the interest or estate created in Tenant hereby
shall be taken in execution or by other process of law, or its executors,
administrators, or assigns, if any, shall be adjudicated insolvent pursuant to
the provisions of any state law or an order of relief is entered pursuant to the
Bankruptcy Code or if Tenant is adjudicated insolvent or admits in writing its
inability to pay its debts as they mature, or if a receiver or trustee of some
or all of the property of Tenant shall be appointed by reason of insolvency or
inability to pay its debts, or if any assignment shall be made of the property
of Tenant for the benefit of creditors, excepting an assignment by a trustee
pursuant to the provisions of the Bankruptcy Code then such event shall be
deemed a Default under this lease. For purposes hereof, the term "insolvent" or
"insolvency" shall mean that the fair market value of all of the assets of the
Tenant are less than all of the liabilities (including contingent liabilities)
of the Tenant.
(c) Tenant shall not cause the appointment of a trustee or receiver
of the assets of Tenant and shall not make any assignment for the benefit of
creditors or become or be adjudicated insolvent. The allowance of any petition
under any insolvency law, except under the Bankruptcy Code, or the appointment
of a trustee or receiver of Tenant shall be conclusive evidence that Tenant
allowed such petition or caused such appointment, unless such allowance of the
petition, or the appointment of a trustee or receiver, is vacated within the
earlier of the permissible time period under the law for seeking to vacate the
allowance or appointment or ninety (90) days after such allowance or
appointment.
(d) Upon the filing of a petition by or against Tenant under the
Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any trustee
who may be appointed agree that Tenant or the trustee shall determine within a
reasonable time set by the court whether to assume or reject this lease and
adequately protect Landlord.
(e) No breach of this lease by Tenant, either prior to or subsequent
to the filing of a petition under the Bankruptcy Code, shall be deemed to have
been waived unless expressly done so in writing by Landlord.
(f) Notwithstanding anything in this lease to the contrary, all
documents payable by Tenant to or on behalf of Landlord under this lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of the Bankruptcy Code.
(g) Any payment received from Tenant may be applied by Landlord at
any time against any obligation due and owing by Tenant under this lease,
notwithstanding any statement appearing on or referred to in any remittance from
Tenant or any prior application of such payment. If a petition under the
Bankruptcy Code is initiated within ninety (90) days after receipt by Landlord
of any payment from Tenant, the payment shall be applicable to any unpaid
obligations then due in the inverse order of their maturity.
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33. Environmental Matters. Landlord represents, warrants, covenants and agrees
with the Tenant that:
(a) (i) the Land and Building (when constructed) are not and will
not be the subject of any liens, actions or proceedings relating to Hazardous
Substances (as hereinafter defined) or Environmental Laws (as hereinafter
defined) and the Landlord is not a party to any such action or proceeding and
the Landlord has received no notice of any such lien, action or proceeding that
is pending or threatened. Landlord shall notify Tenant of any subsequent lien,
action or proceeding which may hereafter be pending or threatened.
(ii) to Landlord's knowledge
(A) no Hazardous Substances are or have been located, stored
or disposed on or released or discharged from (including
groundwater contamination) the Land in violation of Environmental
Laws, except that PCB transformers were once located on the Land
and have been removed; no PCBs contaminated the groundwater or soil
and the removal of such transformers was performed by Commonwealth
Edison Company; fuel tanks are located in the buildings currently
located on the Land and will be removed during the demolition of
those buildings;
(B) the Land and Building (when constructed) and its use and
operation currently comply with and will comply with all federal,
state and local requirements relating to the protection of health
and with all Environmental Laws, and all necessary permits have
been obtained under Environmental Laws;
(C) there is not past or ongoing leakage or spillage of
Hazardous Substances from fuel tanks located in or below the lower
levels of the Building or any migration of Hazardous Substances
onto the Land from neighboring property, in violation of
Environmental Laws.
(iii) The shell and core of the Building and the Premises (other
than in the Tenant Improvements) as of the date Tenant takes possession will not
contain any Hazardous Substances in violation of Environmental Laws and further,
that in the event any Hazardous Substance is found in the shell and core of the
Building or the Premises in violation of Environmental Laws (other than in the
Tenant Improvements) Landlord shall remove the same at its sole cost and
expense. In addition, without limitation of the foregoing, Landlord shall, at
no cost or expense to the Tenant as Expenses or otherwise, take all actions
necessary to comply with all Environmental Laws affecting the Land and Building,
including, without limitation, removal, containment and remedial actions
required by any Environmental Laws or any governmental agencies in the
enforcement of Environmental Laws affecting the Land and Building, and shall
indemnify Tenant from and against any and all costs, claims, expenses, damages,
liens, losses and judgments arising out of the presence of Hazardous Substances
or Landlord's failure to comply with Environmental Laws; provided, however, that
the foregoing obligations of Landlord shall not extend to Tenant Improvements
unless such condition occurs because Landlord (by Landlord's contractor)
performs the
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Tenant Work and deviates from the plans and material's theretofore approved by
Tenant's Architect, except as may otherwise be provided in any construction
contract subsequently entered into between Landlord and Tenant.
(b) (i) For purposes of this Section the term "Hazardous Substances" shall
mean the following:
(A) Any "hazardous substance" as now defined pursuant to the
Comprehensive Environmental Response, Compensation and Liability
Act ("CERCLA"), 42 U.S.C.A. ss. 9601(14) as amended by the
Superfund Amendments and Reauthorization Act ("XXXX"), and
including the judicial interpretation thereof;
(B) Any "pollutant or contaminant" as defined in 42 U.S.C.A.
ss. 9601 (33);
(C) Any material now defined as "hazardous waste" pursuant to
40 C.F.R. Part 260;
(D) Any petroleum, including crude oil or any fraction
thereof;
(E) natural gas, natural gas liquids, liquefied natural gas,
or synthetic gas usable for fuel;
(F) any "hazardous chemical" as defined pursuant to 29 C.F.R.
Part 1910; and
(G) any other substance subject to regulation as a hazardous
or toxic substance under Environmental Laws.
(ii) For purposes of this Section the term "Environmental Laws"
shall mean and include all federal, state and local statutes, ordinances,
regulations and rules presently in force or hereafter enacted relating to
environmental quality, contamination and clean-up, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. A. ss. 9601 et seq., as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976,
42 U.S.C. ss. 6901 et seq., as amended by the Hazardous and Solid Waste
Amendments of 1984, and the Environmental Protection Act of Illinois, Ill. Rev.
Stat. ch. 111 1/2, ss. 1001 et seq., as amended, and state superlien and
environmental clean-up statutes and all rules and regulations presently or
hereafter promulgated under said statutes as amended. The term "knowledge" does
not require any separate investigation for purposes of making the representation
and warranty in this Section 33 and does not impute any knowledge of tenants or
former owners of the Land or improvements located thereon.
34. Exculpatory Provisions.
(a) It is expressly understood and agreed by and between the parties
hereto, as to any Landlord which is a land trust, anything herein to the
contrary notwithstanding: that each and all of the representations, warranties,
covenants, undertakings and agreements herein made on the part of any Landlord
while in form purporting to be the represenations, warranties, covenants,
undertakings and agreements of such
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Landlord are nevertheless each and every one of them made and intended, not as
personal representations, warranties, covenants, undertakings and agreements by
such Landlord, or for the purpose or with the intention of binding such Landlord
personally, but are made and intended for the purpose only of subjecting such
Landlord's interest in the Premises, the Building and the Land to the terms of
this lease and for no other purpose whatsoever, and in case of default hereunder
by such Landlord (or default through, under or by any of its beneficiaries, or
any of the agents or representatives of said beneficiaries), Tenant shall look
solely to the interest of such Landlord in the Premises, the Building and the
Land; that this lease is executed and delivered by Landlord not in its own
right, but solely in the exercise of the powers conferred upon it as such
Trustee; that no Landlord which is a land trust or any of its beneficiaries
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained and no
liability or duty shall rest upon any Landlord which is a land trust to
sequester the trust estate or the rents, issues and profits arising therefrom,
or the proceeds arising from any sale or other disposition thereof; that no
personal liability or personal responsibility of any sort is assumed by, nor
shall at any time be asserted or enforceable against any trustee of any land
trust owning the Building or the Land who is or becomes Landlord individually or
personally, or against any of its beneficiaries or any of the beneficiaries
under any land trust which is or may become the owner of the Building or Land,
on account of this lese or on account of any representation, warranty, covenant,
undertaking or agreement of Landlord in this lease contained, either express or
implied, all such personal liability, if any, being expressly waived and
released by Tenant and by all persons claiming by, through or under Tenant;
provided, however, that nothing contained in this Section 34 shall be construed
to limit or impair the ability of Tenant to realize upon and collect under the
Personal Guaranty described in Section 55.
(b) It is expressly understood and agreed between the parties
thereto, as to any Landlord which is a partnership, anything to the contrary
notwithstanding: that, except as otherwise expressly provided in the Personal
Guaranty, no partners of any partnership which is a Landlord shall have any
personal liability arising out of or in connection with this lease or any
instruments or documents executed by Landlord relating to this lease. Tenant
hereby acknowledges and agrees that the liability of a partnership which is a
Landlord (other than under the Personal Guaranty) shall be limited to and
enforceable solely against the interest of such partnership in and to the Land
and the Building and not the other assets of such partnership. The assets and
property of a partnership which is a Landlord shall not include a deficit
capital account of any partner or any obligation of a partner to make
contributions to such partnership.
(c) It is expressly understood and agreed between the parties
hereto, as to any Landlord which is a corporation, anything to the contrary
notwithstanding: that no directors, officers, employees or shareholders of any
corporation which is a Landlord shall have any personal liability arising out of
or in connection with this lease or any instruments or documents executed by
Landlord relating to this lease. Tenant hereby acknowledges and agrees that the
liability of a corporation
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which is a Landlord (other than under the Personal Guaranty described in Section
55) shall be limited to and enforceable solely against the interest of such
corporation in and to the Land and the Building and not the other assets of such
corporation.
35. Scheduled Commencement Date. The Term shall commence on the Low-Rise
Commencement Date. The "Low-Rise Commencement Date" will be the latest of the
following dates: (i) the date which is thirty-four (34) weeks after the Low-Rise
Access Date (hereinafter defined), as may be extended as provided in Section
50(d); (ii) the Gate of Substantial Completion of the low-rise portion of the
Building; and (iii) thirty (30) days after the date on which the low-rise
portion of the Building (not including Tenant Improvements or other work to be
performed by or desired by Tenant) is sufficiently completed to allow Tenant's
furniture move-in and installation of telephone, communications systems and
security system) ("Beneficial Occupancy"). Within thirty (30) days after the
request of Landlord and after the Low-Rise Commencement Date is determinable,
Landlord and Tenant shall enter into a written supplement to this lease, in
recordable form, specifying the Low-Rise Commencement Date and such other dates
that are determined with reference to the Low-Rise Commencement Date. The
Low-Rise Commencement Date is sometimes herein referred to as the "Commencement
Date."
The "Low-Rise Access Date" will be deemed to have occurred when the
Access Date Specifications attached hereto as Attachment 2 have been satisfied
with respect to low-rise space in the Initial Premises.
The "High-Rise Access Date" will be deemed to have occurred when the
Access Date Specifications attached to this lease as Attachment 2 have been
satisfied with respect to the Top Floor. The "High-Rise Commencement Date" will
be the latest of the following dates: (i) the date which is twenty (20) weeks
after the High-Rise Access Date; (ii) the date of Substantial Completion of the
high-rise portion of the Building; and (iii) thirty (30) days after the date on
which the high-rise portion of the Building has been sufficiently completed to
allow Beneficial Occupancy. Within thirty (30) days after the request of
Landlord and after the High-Rise Access Date is determinable, Landlord and
Tenant shall enter into a written supplement to this lease, specifying the
High-Rise Access Date and such other dates that are determined with reference
to the High-Rise Access Date.
"Substantial Completion" of the low-rise portion of the Building shall be
deemed to occur on the date the latest of the following to occur has occurred:
(a) A certificate of occupancy for that portion of the Building on
which the low-rise and vault space of the Premises are located (exclusive of
tenant improvements) has been issued by the department of the City of Chicago
which issues such certificate (or if not Issued as standard practice, then all
items [other than tenant improvements] of construction of the Building have
been sufficiently completed to permit legal occupancy of the portion of the
Building containing the low-rise and vault portions of the Premises, as
evidenced by statements from Landlord and its architect stating that such
portion of the Building is built in accordance with Sections
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62(a),(b),(c) and (e) and substantially completed (in accordance with those
plans and specifications upon which governmental permits were issued) and
Landlord's statement that the Department of Inspectional Services and the Fire
Department of the City of Chicago have performed their review and such review
did not disclose any major items of work left to be done which would prevent
legal occupancy);
(b) The base building mechanical systems serving the low-rise and
vault portions of the Premises are operational, as evidenced by a statement from
Landlord's architect and engineer that such systems are substantially complete
and operational and have been tested;
(c) The ground floor lobby has been sufficiently completed to permit
Tenant access from main lobby areas and the rotunda to elevators and escalators
serving the low-rise and vault portions of the Premises (but workmen and
materials may be present in the lobby and there may be ongoing work; temporary
barriers and scaffolding will be allowed if they can be relocated, if required).
Ground level barricades at Xxxxx Street and Xxxxxxxx Streets outside the
Building shall have been removed.
"Substantial Completion" of the Top Floor shall be deemed to occur on the
date the latest of the following to occur has occurred:
(a) A certificate of occupancy for the Top Floor (exclusive of
tenant improvements) has been issued by the department of the City of Chicago
which issues such certificate (or if not issued as standard practice, then all
items [other than tenant improvements] of construction of the Building have been
sufficiently completed to permit legal occupancy of the Top Floor, as evidenced
by statements from Landlord and its architect stating that such portion of the
Building is built in accordance with Section 62 and substantially complete (in
accordance with those plans and specifications upon which governmental permits
were issued) and Landlord's statement that the Department of Inspection Services
and Fire Department of the City of Chicago have performed their review and such
review did not disclose any major items of work left to be done which would
prevent legal occupancy);
(b) Base building mechanical systems serving the Top Floor are
operational, as evidenced by a statement from Landlord's architect and engineer
that such systems are substantially complete and operational and have been
tested.
If, for reasons other than Tenant Delay (as defined in the definition of
Force Majeure in Attachment 15), the Low-Rise Commencement Date would fall
within a month other than a February or an October, then to accommodate Tenant's
scheduling and move-in requirements, Tenant may extend the Low-Rise
Commencement Date to the next February 1, if it would otherwise have fallen
within the period from November to January, or to the next October 1, if it
would otherwise have fallen within the period from March to September; provided
that such date may not be extended beyond October 1, 1993 without the
Landlord's consent. If Tenant does take partial occupancy between a February and
the next October, or between October and the next February, which it may do if
Substantial Completion of the low-rise portion of the Building has occurred, the
Low-Rise
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Rent Commencement Date will occur thirty (30) days after the date of Tenant's
occupancy, subject to the provisions of Section 38.
The Landlord shall initially determine the date on which the tests set
forth in clauses (b) and (c) above relating to Substantial Completion of the
low-rise portion of the Building and in clause (b) above relating to substantial
completion of the high-rise portion of the Building have been met and shall
notify Tenant in writing no later than three (3) business days after such date.
Tenant shall then have five (5) business days in which to send written notice to
Landlord disagreeing with Landlord's determination of such date and stating the
reasons Tenant so disagrees. If Landlord and Tenant do not agree on such date
within three (3) business days of the date of Tenant's notice to Landlord, then
the Architect and the Tenant shall each individually set forth in writing the
basis of their disagreement within ten (10) days and such matter shall be
determined by arbitration in accordance with the provisions of Section 65
hereof.
36. Option to Extend.
(a) Provided that this lease is then in full force and effect and
Tenant is not in Default, Landlord hereby grants to the Tenant an option to
extend the Term of this lease (but as to Lobby Space, only if elected under
Section 36(e)) on the same terms, conditions and provisions as contained in this
lease, except as otherwise provided herein, for three (3) successive periods
(each such period called an "Option period") of five (5) years each. The First
Option Period will commence on the date after the expiration of the Initial
Term, and each successive Option Period will commence upon expiration of the
prior Option Period.
(b) Landlord shall deliver written notice to Tenant of Landlord's
determination of the Market Rental Rate for an Option Period no later than
twenty-four (24) months prior to the commencement of such Option Period. Tenant
may, no earlier than thirty-six (36) months nor later than twenty-five (25)
months prior to the expiration of the Initial Term or the Option period, as
applicable, request in writing that Landlord advise Tenant in writing of
Landlord's determination of the Market Rental Rate for multiple successive
Option Periods, in which case Landlord shall deliver such rates in accordance
with the provisions of the immediately prior sentence. In the event there is any
disagreement over the Market Rental Rate such disagreement shall, at Tenant's
election, be resolved in accordance with the provisions of Section 61(b) hereof.
(c) Tenant's option to extend shall be exercisable by Tenant's
written notice of Tenant's election to exercise given to Landlord no later than
eighteen (18) months prior to the expiration of the initial Term or the Option
Period which precedes the Option period for which the option is being exercised;
it being understood and agreed that if Landlord quotes to Tenant the Market
Rental Rate, Tenant need not exercise the option. If not so exercised, Tenant's
option for such Option Period under this Section 36 shall thereupon expire.
Tenant shall have the right to exercise its right to extend the term for more
than one (1) Option Period by delivering written notice of Tenant's election to
exercise more than one (1) Option Period no later than eighteen (18) months
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prior to the expiration of the initial Term or the Option Period, whichever
immediately precedes the Option period(s) for which the option is being
exercised. Tenant's notice of exercise once given is irrevocable.
(d) Rent per square foot of Rentable Area of the Initial Office
Premises payable during the Option Period with respect to the Initial Office
Premises shall be equal to eighty-five percent (85%) of the Market Rental Rate.
Rent per square foot of the Rentable Area of the remainder of the premises
(except Vault Space) payable during the Option Period shall be at the Market
Rental Rate. Base Rent per square foot of Rentable Area of Original Vault Space
and Additional Vault Space (as hereinafter defined) during the first Lease Year
of the Option Period shall increase over Base Rent for such space payable during
the initial Term by a percentage equal to the percentage increase in Base Rent
for low-rise office space from a Base Rent of Twenty-Two and 50/100 Dollars
($22.50) to the Base Rent for Lease Year twenty-one (21), subject to further
increases in each Lease Year thereafter corresponding (on a percentage basis)
with subsequent increases in Base Rent for low-rise office space. No Additional
Rent shall be payable with respect to Original Vault Space and Additional Vault
Space.
(e) Provided that Tenant (and/or any of its Affiliates) is then
occupying at least one hundred thousand (100,000) square feet of Rentable Area,
Tenant may, but shall not be obligated to, extend the Term of this lease for the
Lobby Space for the same period, in the same manner and at the same time that
Tenant is extending the Term of this lease for the Premises. Rent for the Lobby
Space during the Option Period shall be at the Market Rental Rate (not
including those elements included in the definition of Market Rental Rate in
Section 61 which are not applicable to leasing of retail/lobby space, but also
including other elements which are used in determining rent for comparable
retail/lobby space and which are not included in the definition of Market Rental
Rate in Section 61). Any disagreement over the Market Rental Rate shall be
resolved in accordance with the provisions of Section 61(b) hereof.
(f) Upon the valid exercise by Tenant of its option to extend and
determination of the Rent for the Option Period, at the request of either party
hereto and within thirty (30) days after such request, Landlord and Tenant shall
enter into a written supplement to the lease confirming the terms, conditions
and provisions applicable to the Option Period.
37. Tenant Improvement Allowance.
(a) Landlord will grant Tenant an allowance ("Landlord's Allowance")
of Fifty Dollars ($50.00) per Rentable Square Foot of Initial premises,
including Vault Space and Lobby Space, to complete Tenant's initial improvements
to the Premises ("Tenant Improvements" or "Work"), to cover moving and
moving-related costs and architectural, consulting and engineering fees, to
purchase furniture and equipment for the Initial Premises and to pay other costs
and expenses of Tenant directly related to occupancy of or moving in to the
Initial Premises. Tenant is entitled to tenant improvement and other allowances
for Post-Occupancy Expansion Space as provided in Section 44 or First Offer
Space as provided in Section 45. In the event that Tenant contracts with an
entity other than
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Landlord for performance of Tenant Improvements, Tenant shall conform with
requirements for construction set forth in Exhibit E attached hereto. Landlord
or Landlord's designee may, at Tenant's option, have the right to submit a
proposed contract for the Tenant Improvements, but Tenant will not be obligated
to select Landlord or Landlord's designee as its contractor. Payment of
Landlord's Allowance to Tenant shall be made by Landlord only after the Low-Rise
Access Date, except as set forth in Section 37(b), as work progresses (based on
percentage completion) pursuant to a draw schedule approved in advance by
Landlord based on Tenant's presentation of invoices or lien waivers (on a 30 day
trailing waiver basis so long as Landlord and any Mortgagee are insured against
mechanic's liens through and including such 30 day period) and other
documentation customarily required for disbursement of construction loans,
including requirements of Landlord's construction lender. Tenant shall cause
Chicago Title Insurance Company to apply the same procedures and standards as
would be applied to an independent third party in the lien review procedure with
respect to Tenant Improvements despite its relationship to Tenant and shall
comply with such procedures. Notwithstanding anything herein to the contrary,
Tenant shall have no obligation whatsoever to deposit any of its own funds into
a construction escrow, if any is required by the construction lender for
disbursement of the Landlord's Allowance. Landlord's failure to timely pay any
portion of Landlord's Allowance shall constitute a Landlord default under
Section 29 hereof, subject to the notice and cure periods provided in Section
29.
(b) A portion of Landlord's Allowance will be disbursed prior to the
Low-Rise Access Date for the items shown on Attachment 18 hereto not to exceed
the total amounts shown on the schedule included in Attachment 18 for the
periods shown in the schedule ("Pre-Construction Allowance"). In no event will
Landlord be required to pay more than One Dollar ($1.00) per square foot of
Rentable Area of the Initial Premises of the Pre-Construction Allowance before
expiration or waiver of the final milestone dates in Section 52 or more than One
Million Three Hundred Fifty Thousand Dollars ($1,350,000) as a Pre-Construction
Allowance, notwithstanding the schedule in Attachment 18. Interest on any
portion of the Pre-Construction Allowance in excess of Three Dollars ($3.00) per
square foot of Rentable Area of the Initial Premises will be payable by Tenant
monthly from the date of disbursement until the earlier of the actual or Target
Low-Rise Access Date (normal schedule) (as shown on Attachment 13 hereto) at the
same interest rate as under the first mortgage loan obtained to finance the cost
of construction of the Building. Any portion of the Pre-Construction Allowance
required to be paid before the first disbursement of the construction loan for
the Building will bear interest from payment to the date of the first
disbursement under the construction loan at the Prime Rate plus one percent
(1%), changing as and when such Prime Rate changes. Such interest will be a cost
of Tenant payable out of the proceeds of the Landlord's Allowance at the date of
the first disbursement of the construction loan obtained for the construction of
the Building. Any payments of the Pre-Construction Allowance will be deemed part
payment of the Existing Tenant Vacation Termination Payment (as hereinafter
defined in Section 50) and Construction Termination Payment (as hereinafter
defined in Section 51) in the event of a lease termination under such
provisions, except as set forth in
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Section 55. At Landlord's request Tenant will verify the use and disbursement of
Landlord's Allowance for permitted purposes.
(c) As such costs and expenses are incurred, Tenant will pay
Landlord for (or Landlord may apply Landlord's Allowance toward) costs and
expenses related to Tenant Improvements such as construction utilities,
security, coordination of such tenant work with base building work, accounting
expenses, printing, telephone charges, travel expenses, floor levelness surveys.
Such costs and expenses other than the costs and expenses identified below will
be reimbursed to Landlord on a lump sum basis equal to One Hundred Thousand
Dollars ($100,000) (to be paid as work progresses based on percentage of
completion of Tenant Improvements) regardless of whether the actual costs are
higher or lower. The following costs and expenses will not be included in the
lump sum stated above and are to be reimbursed to Landlord (or Landlord may
apply Landlord's Allowance toward them) as incurred: charges for material hoist
and rubbish containers (but such charges will be similar to rates charged to
base building contractors [but not to exceed customary charges for similar
buildings in Chicago]); charges for architects and engineers reviewing Tenant's
plans and specifications or construction where Tenant's plans and specifications
or construction requires a change in the base building or systems or require a
change in plans and specifications not provided for in the specifications or
drawings attached hereto as Attachments 6, 10 and 11, such charges to be in
accordance with Landlord's contracts with its architects and engineers, without
any profit or overhead being charged Tenant by Landlord. Landlord will notify
Tenant if it is applying Landlord's Allowance toward costs and expenses in this
Section 37(c) not included in the lump sum, and Tenant will have the right to
approve the correctness of such application. If, at any time during the
construction of the Tenant Improvements, the expected cost of Tenant
Improvements (based on contracts then entered into by Tenant for the
construction of the Tenant Improvements) as certified by Tenant's Architect
("Estimated T/I Cost") exceeds the amount of the Landlord's Allowance (such
excess is herein referred to as the "Excess T/I Cost"), then Landlord and Tenant
will fund the Landlord's Allowance and the Excess T/I Cost, respectively, in
accordance with the following as construction of the Tenant Improvements
progresses: (i) Landlord will fund the Landlord's Allowance in accordance with
the terms of this lease, except that the amount to be funded at a particular
time shall, when added to amounts of Landlord's Allowance previously funded,
equal the then percentage completion of the Tenant Improvements as certified by
Tenant's Architect multiplied by the Landlord's Allowance; and (ii) upon the
funding by Landlord described in (i) above, Tenant will fund a portion of the
Excess T/I Cost in an amount which, when added to amounts previously funded by
Tenant toward the Excess I/I Cost, shall equal the then percentage completion
of the Tenant Improvements multiplied by the Excess T/I Cost. Without limitation
of the foregoing, Tenant shall pay for all costs and expenses in connection with
the Tenant Improvements in excess of Landlord's Allowance.
(d) Tenant Improvements shall not include work which Landlord is
obligated to perform under Section 62. All interior walls and demising
partitions (other than load bearing or structural walls), doors, ceiling, floor,
electric, plumbing (except for temporary fire sprinklers) and HVAC distribution
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work for the Vault Space is to be performed by Tenant as part of Tenant
Improvements; provided, however, Landlord shall provide, at Landlord's cost,
base Building electrical and HVAC risers to a point within thirty (30) feet from
the core.
(e) Subject to the provisions of Section 41 hereof, in addition to
Landlord's Allowance provided aforesaid, Landlord shall provide Tenant with a
Fifteen Thousand Dollar ($15,000) per floor lobby allowance.
(f) Notwithstanding anything herein to the contrary, Landlord shall
have no obligation to pay the last $200,000 of the allowable Landlord's
Allowance.
38. Existing Leases.
(a) Landlord hereby assumes the existing rent obligations, including
base rent and rent adjustments based on increases in taxes and expenses and
increases in rent based upon increases in the consumer price index (but no
damages or other liabilities or obligations regardless of characterization as
"rent" or "additional rent" under such leases except as provided in Section 51)
of Tenant for existing leases at 000 Xxxx Xxxxxxxxxx, Xxx Xxxxx XxXxxxx Xxxxxx
and 000 Xxxxx Xxxxx Xxxxxx (collectively, the "Existing Leases"), for the
remainder of their terms accruing as of and after the Low-Rise Rent Commencement
Date, but in no event earlier than the date Tenant has moved into all low-rise
space in the Initial Premises and is paying Rent on all such space in the
Initial Premises (but with regard to taxes or expenses generally paid on an
accrual basis, amounts payable after such date but attributable to prior periods
will be excluded) except as provided in the following sentence; provided that
Landlord will not assume the rent for any space while Tenant is occupying such
space, subject, however, to the provisions of Section 51. If Tenant takes
partial occupancy pursuant to the next to last paragraph of Section 35, then
Landlord shall assume rent obligations for space under Existing Leases as
provided in Section 38(b) below when Tenant is paying Rent for the corresponding
amount of area occupied in the Premises.
(b) Within five (5) days prior to the date that Tenant takes
occupancy of space within the Premises pursuant to the next to last paragraph of
Section 35, Tenant shall deliver to Landlord a certificate from both Tenant and
Tenant's Space Planner certifying both the area that Tenant has vacated or is
about to vacate under the Existing Leases and the areas in the Premises which
will be occupied by the department which has vacated the space so certified.
Absent fraud or manifest error, such areas in the Premises to be occupied will
be deemed to correspond to the vacated area. Such certification shall be done on
a department by department basis as opposed to individual persons.
(c) Tenant represents that it has heretofore delivered complete and
correct copies of the Existing Leases and the 30 North Lease and that there are
no other agreements, oral or written, amending these leases or Tenant's
obligations under them. The "30 North Lease" is the lease of floors 37 and 38 to
Tenant at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx. Tenant shall also furnish
to Landlord promptly after receipt by tenant copies of statements from landlords
under the Existing Leases which are furnished to Tenant as to (i) tax bills and
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assessed valuations for the buildings in which the premises leased pursuant to
the Existing Leases are located, and (ii) annual and monthly statement of rent
adjustment, additional rent, escalations, CPI increases, or other payments on
account of taxes and expenses (the amounts of which are not set forth in the
leases), which copies Tenant shall certify as having been received from such
landlords.
(d) Tenant may not increase the rent, extend the term of, or renew
any of the Existing Leases (except as permitted by Section 51), add any
additional space to the existing premises under any of the Existing Leases, or
agree to any termination payment or amend any of the Existing Leases in any way
which would have the effect of increasing Landlord's obligations or liabilities
under this Section 38 or other provisions whereby Landlord is assuming or
agreeing to pay a rent obligation of Tenant or Holdover Costs; provided,
however, if Tenant does any of the foregoing, then Landlord (as its sole remedy
as it relates to such acts by Tenant) shall not have any obligations with
respect to such Existing Lease or rent assumption or payment of Holdover Costs.
Tenant may contest payments owed under Existing Leases, but Landlord will not be
obligated to pay any costs or increases in rent as a result of such contest.
Tenant shall cooperate with Landlord in any efforts to effect an early
termination or assignment of, or a sublease under, an Existing Lease to produce
additional income to offset the cost incurred by Landlord in performing its
obligations under this Section 38, so long as Tenant's operations are not
disrupted other than on account of Tenant's own acts, and Existing Lease
obligations and liabilities are not increased. Landlord agrees not to take any
action which would put Tenant in default under the Existing Leases.
(e) The failure of Landlord to timely pay any obligation of Landlord
under this Section 38 shall constitute a Landlord default under Section 29
hereof, subject to the notice and cure periods contained in Section 29.
39. Pre-Occupancy Expansion Space. Subject to the provisions hereinafter set
forth, Landlord hereby grants to Tenant the option to lease, as of the Low-Rise
Commencement Date, on the terms and conditions hereinafter set forth, up to
eighty-four thousand (84,000) square feet of Rentable Area ("Pre-Occupancy
Expansion Space") consisting of the remainder of floor 10 not included in the
Original Office Space, all of floors 11 and 12 of the Building and space on
floor 13 to the extent necessary for the Pre-Occupancy Expansion Space to equal
84,000 square feet of Rentable Area. All space leased by Tenant as Pre-Occupancy
Expansion Space shall be contiguous to the Original Office Space (other than the
top floor) and all floors containing Pre-Occupancy Expansion Space shall be
contiguous.
(a) Tenant shall exercise its option to lease Pre-Occupancy
Expansion Space by a notice or notices (each notice called a "Pre-Occupancy
Expansion Notice") to Landlord on or before February 1, 1992. If Tenant's option
is not so exercised, said option shall thereupon terminate and Tenant shall not
have any further right to lease any portion of the Pre-Occupancy Expansion Space
pursuant to this Section.
(b) Each Pre-Occupancy Expansion Notice shall state the approximate
location and Rentable Area of Pre-Occupancy
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Expansion Space which Tenant is thereby electing to lease, which, in each case,
must be a minimum of a half floor, unless Tenant has previously leased at least
one half of that floor. Each portion of Pre-Occupancy Space leased by Tenant
shall (i) meet the contiguity requirements of this Section 39; (ii) be a minimum
of a half floor, unless Tenant has previously leased at least one-half of a
particular floor, in which case this requirement shall not apply to the
remainder of that floor; (iii) fill out one (1) entire floor before leasing part
of another, and (iv) in the case of Pre-Occupancy Space of less than a full
floor where Tenant has not previously leased the remainder of that floor, must
be in configurations reasonably acceptable to Landlord such that any remaining
space on a floor will be reasonably commercially leaseable. If Tenant would be
the only tenant on a floor and desires to lease ninety percent (90%) or more of
that floor, Tenant must also lease the remaining space so it is then leasing the
entire floor. Landlord shall give Tenant written notice of the exact location
and Rentable Area of the Pre-Occupancy Expansion Space within twenty (20) days
after Landlord receives the Pre-Occupancy Expansion Notice.
(c) If Tenant has exercised its option to lease Pre-Occupancy
Expansion Space, then, effective as of the Low-Rise Commencement Date, the
portion of the Pre-Occupancy Expansion Space leased by Tenant shall be included
in the Premises, subject to all of the terms, conditions and provisions of this
lease (including payment of Additional Rent for such space), except that:
(i) Base Rent for Pre-Occupancy Expansion Space leased
(regardless of the date or amount of space then taken) prior to February
1, 1992 shall be as follows:
A. Base Rent for the first seventy thousand (70,000)
square feet of Rentable Area shall be at the same rate of Base Rent
per square foot of Rentable Area as for the low-rise space in the
Original Office Premises and Landlord shall give to Tenant the
Landlord's Allowance of $50.00 per square foot of Rentable Area with
respect to such space; and
B. Base Rent for the next fourteen thousand (14,000)
square feet (i.e., 70,001 to 84,000 square feet) of Rentable Area
shall be at the same rate of Base Rent per square foot of Rentable
Area as for low-rise space in the Original Office Premises plus Two
Dollars ($2.00) per square foot of Rentable Area for the initial
twenty (20) year Term and Landlord shall give to Tenant the
Landlord's Allowance; and
(ii) the Rentable Area of the Premises shall be increased by the
Rentable Area of the Pre-Occupancy Expansion Space.
(d) Tenant may only exercise said option, and an exercise thereof
shall only be effective, if at the time of Tenant's exercise of said option this
lease is in full force and effect and Tenant is not in Default.
(e) If Tenant exercises its option to lease any Pre-Occupancy
Expansion Space, then within thirty (30) days
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after request by either party, Landlord and Tenant shall enter into a written
amendment to this lease confirming the terms, conditions and provisions
applicable to the Pre-Occupancy Space as determined in accordance with this
Section.
(f) In the event any portion of Pre-Occupancy Expansion Space is
leased to Tenant other than pursuant to this Section 39, such space shall be
deleted from Pre-Occupancy Expansion Space, and shall reduce the area which
Landlord is obligated to make available to Tenant and which Tenant may lease
under this Section 39.
40. Project Identification: Address.
(a) The Building will be the first phase of a two phase twin tower
development (provided, however, Landlord has no obligation to build the second
tower). The entire two-phase development (the "Entire Development") will be
named Chicago Title Center or Chicago Title and Trust Center and may also be
known as CT&T Center (or such other name recognizing Chicago Title and Trust
Company as may be mutually agreed upon). The Building (hereinafter referred to
as the "South Tower" or "Phase One") will furthermore be named the Chicago Title
Tower or Chicago Title and Trust Tower (or a similar name mutually agreed upon).
Landlord agrees to use the aforesaid names for the Building and Entire
Development (and no other names) in connection with all material facets of the
marketing, advertising and promotion of the Building and the Entire Development,
during the period that Landlord is required to identify the Building and Entire
Development by such names. Tenant shall defend and hold Landlord harmless from
and against any suit, proceeding or claim made against Landlord or damage or
loss suffered or incurred by Landlord by or as the result of any party having or
claiming to have the right, by virtue of a contractual arrangement with Tenant,
to require that Landlord not use such names as aforesaid or by the landlord
under any Existing Lease. Landlord has no obligation to use any of the
aforesaid names if prevented by injunction or other court order or decree from
using such names. The second phase of the Entire Development will be a tower
built to the north of the Building ("North Tower" or "Phase Two") which may have
a separate name (e.g., The White Company Tower at Chicago Title Center).
(b) Prior to and during the first ten (10) Lease Years, so long as
this lease has not been terminated, Landlord may, at its option, use the names
described in Section 40(a) above for identifying and marketing the Entire
Development and Building regardless of the size of the presence of Chicago Title
and Trust Company in the Building. If during such period, Chicago Title and
Trust Company changes its name, Landlord may, as its sole option: (i) continue
to use the then existing names as described in Section 40(a) above if Tenant
consents thereto, and if Tenant does not consent thereto, to change such name(s)
to a neutral name, in which case Tenant will pay all costs and expenses of
physically changing the identification of the Entire Development or the
Building, or both, but not including the costs and expenses incurred by other
tenants in the Building as a result of the change of such name(s); (ii) if
Tenant has requested that the name of the Entire Development or the Building, or
both, be changed to Tenant's new name, or if Tenant has refused pursuant to
clause (i) above to allow its old name to be used and Landlord has
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elected to use Tenant's new name, change the name(s) to such new name, in which
case Tenant will pay all costs and expenses of physically changing the
identification of the Entire Development or the Building, or both, but not
including the costs and expenses incurred by other tenants in the Building as a
result of the change of such name(s); or (iii) use a "neutral" name, in which
case Landlord and Tenant will share equally the costs and expenses of physically
changing the Building or identification of the Entire Development or the
Building, or both, but not including the costs and expenses incurred by other
tenants in the Building as a result of the change in name(s). A "neutral" name
means a name such as the address of the Building or the Entire Development or a
component of such address, or a name which does not identify a particular tenant
but possibly a location or general function such as "Chicago Commerce Center".
After the expiration of the first ten (10) Lease Years, if Chicago Title and
Trust Company changes its name and requests a change in identification of the
Building or the Entire Development, or both, Landlord may agree, at its sole
option, to such change, in which case Tenant will pay all costs and expenses of
physically changing the identification of the Entire Development or the
Building, or both, but not including the costs and expenses incurred by other
tenants in the Building as a result of the change in name(s). If Landlord does
not agree to such change, then Landlord, in any event, will use a "neutral"
name, and Landlord and Tenant will share equally the costs and expenses of
physically changing the identification of the Entire Development or the
Building, or both, but not including the costs and expenses incurred by other
tenants in the Building as a result of the change in names(s). If Tenant has not
requested a change in identification of the Entire Development or the Building,
or both, as a result of its name change, Landlord, at its sole option may keep
the existing names or use a "neutral" name; if a change to a "neutral" name is
made, Tenant will not be obligated to pay the costs and expenses of physically
changing the identification of the Entire Development or the Building, or both.
Tenant exterior identification permitted over Building entrances may bear the
name "Chicago Title and Trust Company" without the word "Tower".
(c) Landlord will create a restriction or cause the owner of the
North Tower to be bound by a covenant enforceable by Chicago Title and Trust
Company and Landlord, or either of them, restricting such owner from naming the
North Tower for a title insurance company using the word "title insurance" in
its identification or any other entity whose primary business is then title
insurance. The identification of the Entire Development delineated in Section
40(a) and the foregoing restriction on identification of the North Tower will be
required only so long as Chicago Title and Trust Company and/or its Affiliates
maintain a presence of at least one hundred fifty thousand (150,000) square feet
of Rentable Area in the Building. The identification of the South Tower
delineated in Section 40(a) will be required only so long as Chicago Title and
Trust Company and/or its Affiliates maintain a presence of at least one hundred
thousand (100,000) square feet of Rentable Area in the Building. So long as
Chicago Title and Trust, Company and/or its Affiliates maintains a presence of
at least one hundred thousand (100,000) square feet of Rentable Area in the
Building and Chicago Title and Trust Company and/or its Affiliates in the
Building are engaged in the title insurance business, Landlord will not permit
signage (other than signage
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promoting a tenant's move-in or special announcement) on the exterior of the
Building or in the Building ground floor lobby identifying by name another
tenant if any of such other tenant's business at the Building is the conduct of
title insurance or uses the words "title insurance" in its name. In no event
will this prohibit identification of any tenant engaged in the practice of law
which is involved in the title insurance business as an adjunct to the practice
of law, so long as identification on suite entrance doors or the Building
directory or signage outside the tenant's premises does not state that the
tenant is an agent for a title insurance company or a bar fund. The same
restriction shall apply to the North Tower so long as Landlord or Landlord's
beneficiary or an affiliate of The Linpro Company owns an interest in the
ownership of the North Tower (or the ground upon which it is to be located) and
is a controlling principal of the North Tower ownership, and Chicago Title and
Trust Company and/or its Affiliates maintains a presence of at least one hundred
fifty thousand (150,000) square feet in the Building and Chicago Title and Trust
Company and/or its Affiliates in the Building are engaged in the title insurance
business.
(d) The Building will have three entrances located on Xxxxx Street,
the central one of which will be designated as the Tenant entrance allowing for
a specialized lobby development and rotunda design as indicated in Attachments
6, 10 and 11 hereto. Landlord shall allow Chicago Title and Trust Company to
provide signage on the lower and upper portions of the Building exterior (which
shall be maintained by Landlord at Tenant's cost), in the rotunda and in the
lobby, all of which shall be mutually agreed upon, but as to relative size, the
total number of signs allowable and the location thereof shall be substantially
as shown in Attachment 5 hereto. The actual lettering, quality of materials and
integration with the Building of Tenant's signage as well as the actual signs
themselves will be subject to Landlord's reasonable approval. Other rights of
Tenant with respect to signage, including cost allocations, exclusive use
restrictions and directory rights are also shown on Attachment 5 hereto. An
example of acceptable upper building identification is also attached as part of
the Building perspective rendering included in Attachment 5.
(e) Landlord agrees to use reasonable efforts to obtain as the
address of the Building a so-called "vanity address" using the name of the
Building as its address, in addition to a number and street name address.
Landlord agrees to seek 000 Xxxxx Xxxxx Xxxxxx as the street address for the
Building. To Landlord's knowledge no one else has applied for the street address
000 Xxxxx Xxxxx Xxxxxx. Counsel for Landlord and Tenant shall agree on the
manner and procedure to be utilized in connection with such efforts to obtain a
"vanity address" and, thereafter, Landlord shall work to obtain such "vanity
address' within normal legal channels (but without the requirement of resorting
to litigation or continuing to pursue the effort after a bona fide governmental
rejection).
(f) The rights granted in this Section 40 are personal to Chicago
Title and Trust Company and, where specifically stated, its Affiliates.
(g) Notwithstanding anything herein to the contrary Landlord shall
not obtain and is not hereby granted any rights
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in or to the name or logo "Chicago Title and Trust", "Chicago Title", or
"Chicago Title Insurance" as used in identifying the Building, except such right
to refer to the Building which it owns by such name, as provided in this
Section. After the expiration of the Term, Landlord shall not employ the name
"Chicago Title", "Chicago Title and Trust Company" or "Chicago Title Insurance
Company" or any logos, trademarks, tradenames or other words, designs, graphics,
names or marks used by the Tenant in connection with the Building as the name of
the Building or otherwise in any manner without Tenant's prior written
agreement.
41. Escalators. Landlord shall, at its sole cost and expense, construct two (2)
pairs of escalators, one (1) pair between the lobby level and the second floor
of the Building and the second pair between the second and third floors of the
Building. Escalators will also be provided between the third and fourth floors,
if Tenant elects the third pair of escalators by December 8, 1989. The cost of
said escalators provided by Landlord is in addition to Landlord's Allowance
under Section 37. In the event Tenant elects to include the third pair of
escalators (as described in the Specifications in Attachment 11 hereto),
Landlord shall not be obligated to pay a Fifteen Thousand Dollar ($15,000) per
floor lobby allowance (which lobby allowance is in addition to Landlord's
Allowance). Landlord shall pay for three floor openings required for three
escalator installations and for the finish of the first (1st) floor escalator
with finish materials compatible with and of similar quality to the finish
materials used in the ground floor, rotunda lobby. Acceptable manufacturers and
model numbers for the escalators are included on Attachment 3 hereto, but
Landlord may substitute equal quality escalators, with Tenant's prior written
consent. Landlord covenants to maintain the escalators in a first class running
condition and fully operational throughout the Term of the Lease at Tenant's
expense which shall be an amount equal to 110% of Landlord's direct
out-of-pocket cost. The service contract for the escalators will be bid along
with the elevator contract and must be reasonably satisfactory to Tenant. Tenant
may elect to contract directly for escalator maintenance services, in which
case Landlord shall not have any maintenance obligation with respect to the
escalators.
42. Pedestrian Tunnel. A below grade pedestrian tunnel connected to the lobby
level of the Building by escalators and an elevator from the lower level of the
Building and linking the Building to the State of Illinois Building is to be
included as part of the development of the Building. The pedestrian tunnel is
presently estimated to be operational one (1) year after the Low-Rise
Commencement Date. Landlord agrees to diligently pursue completion of the tunnel
by such date by all reasonably necessary and appropriate means, including but
not limited to, seeking cooperation and approval of all governmental authorities
and utility companies involved. However, Landlord shall not be liable for
failure to meet such date, except if the tunnel is not operational within
eighteen (18) months after the High Rise Commencement Date, subject to delay due
to Force Majeure (as defined in Attachment 15). If the tunnel is not operational
by the end of such eighteen (18) month period (subject to Force Majeure, as
stated aforesaid) Landlord shall pay to Tenant, as Tenant's sole remedy, Forty
Thousand Dollars ($40,000) per month, in arrears (prorated for a partial month
if the tunnel becomes operational in mid-month)
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as liquidated damages for each month thereafter until the tunnel is operational;
provided, that if at the end of such eighteen (18) month period as extended for
Force Majeure, Landlord can reasonably demonstrate that the tunnel will be
operational within the subsequent 90-day period, then such eighteen (18) month
period, as previously extended for Force Majeure, will be extended for an
additional ninety (90) days and the liquidated damages of Forty Thousand Dollars
($40,000) per month shall not commence until the expiration of such additional
ninety 90 day period. Tenant shall have the right to set off against the next
Rent due any such liquidated damage payment owed by Landlord which is more than
thirty (30) days past due but only in the absence of a bona fide dispute
concerning Landlord's liability to pay such liquidated damages. The rights
granted under this Section 42 are personal to Chicago Title and Trust Company
and its Affiliates. For purposes of this Section 42, "Force Majeure" also
includes "municipal utility company approvals, actions (or failure to act) and
requirements."
43. Display/Mini-theater Area, Security Desk Console and Lobby.
(a) Landlord hereby grants Tenant (subject to the terms and
conditions of this lease and the right of Landlord to enter the area for the
purposes of providing maintenance and making repairs and for such other purposes
as would entitle Landlord to enter the Premises under the terms and conditions
of this lease) an exclusive license to use the display/mini-theater area shown
on Attachment 8 hereto (which area will be three hundred fifty (350) square feet
of useable (i.e. column free) floor area) in the general location and
configuration as set forth in Attachment 10 in connection with Tenant's conduct
of business in the Premises for a use approved by Landlord (which Landlord may
withhold in its sole discretion). Landlord approves the use of said area by
Tenant only as a display/mini-theater, including seating for customers, for
promotional displays, shows, and business conferences and meetings in connection
with Tenant's business in the Premises (which may include occasional public
service and charitable events sponsored by Tenant incidental to Tenant's
business). Tenant shall not be obligated to pay Base Rent, Tax Adjustment or
Expense Adjustment for such space.
Tenant will be responsible for all improvements for the
display/mini-theatre (except for lobby-side perimeter wall finishes [exclusive
of storefront entrance or security gate]) which will be supplied and installed
by Landlord at Landlord's cost of providing the same and will be compatible and
similar to rotunda lobby finishes to such space. Tenant will also be responsible
for any costs to comply with building codes or other ordinances due to Tenant's
use of such space. All of such improvements and the storefront' entrance and
security gate, for which Tenant is responsible, shall be subject to Landlord's
approval. Tenant's improvements to the display/mini-theatre area must be
compatible with the quality and design of the rotunda area and the display
mini-theater must be constructed so that it is sound proof when its doors are
closed; in other respects, Landlord will not unreasonably withhold its approval
of such improvements. Tenant will keep all doors closed during presentation of
shows or programs.
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The license granted by this Section 43 will have a term concurrent with
the Term, as extended, except that if the space is not improved and used within
eighteen (18) months after the Low-Rise Commencement Date, (as extended on
account of Landlord delay in completing its construction obligations with
respect to such display/mini-theatre area) or if Tenant does not continuously
use and operate the area for permitted uses (excluding reasonable periods for
remodeling, changing use, repairing damage by fire and casualty and the like and
intermittent non-use for isolated periods not to exceed four (4) weeks in
duration at any one (1) time or more than ninety (90) days in the aggregate in
any one (1) twelve-month period), it may be revoked. Non-manned displays open to
the public will not be considered "non-use."
(b) Landlord hereby grants Tenant (subject to the terms and
conditions of this lease and the right of Landlord to enter the area for the
purposes of providing maintenance and making repairs and for such other purposes
as would entitle Landlord to enter the Premises under the terms and conditions
of this lease) an exclusive license during the Term to use a
security-information desk/console area in the ground floor rotunda lobby shown
on Attachment B hereto so long as Tenant staffs such area with its personnel
during its business hours (after Landlord's completion of any required
improvements). Landlord will provide improvements to such area only as expressly
provided in the Specifications attached hereto as Attachment 11 with respect to
such area.
(c) Tenant may also occasionally use the lobby and rotunda area on
the ground floor for after-hours social functions consistent with the public
nature of such areas, provided that Tenant shall pay the cleaning and other
expenses of such use, and provided that such use shall also be subject to
Landlord's reasonable conditions governing such use.
(d) The grant of licenses in this Section 43 are personal to Chicago
Title and Trust Company and its Affiliates in the title insurance and/or
Financial Services businesses.
(e) For purposes of Sections 6, 7, 9, 10, 13, 19, the term
"Premises" will include the areas licensed to Tenant under Section 43.
Restrictions elsewhere in the lease on the condition, use or occupancy of the
Premises shall also be deemed to apply to these licensed areas.
44. Post-Occupancy Expansion Space. Subject to the provisions hereinafter set
forth, Landlord hereby grants to Tenant the options to lease, on the terms and
conditions hereinafter set forth, the balance of the floor in the low-rise
portion of the Building on which Pre-Occupancy Expansion Space is located which
would not otherwise be included in the Initial Office Premises if Tenant has
elected to lease all of the Pre-Occupancy Expansion Space (the "Leftover Space")
plus up to a total of three (3) full floors of additional space ("Post-Occupancy
Expansion Space"); provided, however, that the Post-Occupancy Expansion Space
shall include the Leftover Space only if Tenant has leased all of the
Pre-Occupancy Expansion Space pursuant to Section 39 hereto. Such options are
referred to herein as the "First Expansion Option", "Second Expansion Option"
and "Third Expansion Option" and are individually referred to as a
"Post-Occupancy Expansion Option".
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(a) On or before February 2, 1992, Landlord, by written notice to
Tenant, shall identify the Post-Occupancy Expansion Space. The Post-Occupancy
Expansion Space (other than the Leftover Space) shall be the three (3) full
floors which are contiguous to the highest floor of the Initial Office premises
(other than the Top Floor). Any floor of Post-Occupancy Expansion Space not
located in the low-rise will be located in the mid-rise. Floors of
Post-Occupancy Expansion Space will be identified sequentially; i.e. the lowest
floor identified plus the Leftover Space, if the Leftover Space is a part of the
Post-Occupancy Expansion Space, will be the space ("First Expansion Space")
which may be leased under the First Expansion Option under Section 44(b)(i); the
next lowest floor identified will be the space ("Second Expansion Space") which
may be leased under the Second Expansion Option under Section 44(b)(ii); and the
highest floor will be the space ("Third Expansion Space") which may be leased
under the Third Expansion Option under Section 44(b)(iii). If more than one (1)
floor of Post-Occupancy Expansion Space is located in the mid-rise, such floors
will be contiguous to one another. Except as set forth in this Section 44,
Landlord is not required to make any Post-Occupancy Expansion Space contiguous
to the Initial Office premises. Tenant acknowledges and agrees that at
Landlord's option, Post-Occupancy Expansion Space located in the low-rise may be
reduced in size below the size of other low-rise floors (but only if Landlord
reduces the physical size of the floors accordingly) as follows: (i) first
(1st) floor above other low-rise floors may be reduced in size by up to one
thousand five hundred (1,500) rentable square feet below the size of the floor
immediately below it, (ii) second (2nd) floor above other low-rise floors may be
reduced in size by up to two thousand five hundred (2,500) rentable square feet
below the size of the floor immediately below it, (iii) third (3rd) floor above
other low-rise floors may be reduced in size by up to one thousand five hundred
(1,500) rentable square feet below the size of the floor immediately below it.
(b) With respect to each floor of Post Occupancy Expansion Space,
Landlord shall give Tenant written notice ("Post-Occupancy Expansion Notice") of
the date it determines will be the commencement date of the term for the
Post-Occupancy Expansion Space (a "Post-Occupancy Expansion Space Commencement
Date") no later than thirteen (13) months prior to the Post-Occupancy Expansion
Space Commencement Date. Notwithstanding anything herein to the contrary, the
Term for all Post-Occupancy Expansion Space pursuant to any one Post-Occupancy
Expansion Option shall commence on the same Post-Occupancy Expansion Space
Commencement Date. If Tenant in good faith desires to lease Post Occupancy
Expansion Space, Tenant may request that Landlord advise Tenant of its
determination of the Market Rental Rate (and shall, if possible, specify the
amount of space Tenant desires to lease), and in such event Landlord shall
notify Tenant of its determination of Market Rental Rate for such
Post-Occupancy Expansion Space no later than fifteen (15) months before the
actual Post-Occupancy Expansion Space Commencement Date but no earlier than
eighteen (18) months prior to the first possible Expansion Space Commencement
Date. If Tenant has not advised Landlord of the amount of space it intends to
lease, and if the Market Rental Rate will vary depending on the amount of space
leased, Landlord may indicate how Market Rental Rate will vary for the amount
of space leased. If the parties cannot agree on the Market Rental Rate, such
Rate shall be determined in
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accordance with the provisions of Section 61(b) hereof. The Post-Occupancy
Expansion Space Commencement Dates shall fall within the periods set forth below
for portions of Post-Occupancy Expansion Space which Tenant may lease:
(i) First Expansion Option: The Post-Occupancy Expansion Space
Commencement Date for the First Expansion Space shall be on or after the
fifth (5th) anniversary of the Low-Rise Commencement Date, but in no event
later than seventy-eight (78) months after the Low-Rise Commencement Date.
(ii) Second Expansion Option: The Post-Occupancy Expansion
Space Commencement Date for the Second Expansion Space shall be on or
after the tenth (10th) anniversary of the Low-Rise Commencement Date, but
in no event later than one hundred thirty-six (136) months after the
Low-Rise Commencement Date.
(iii) Third Expansion Option: The Post-Occupancy Expansion
Space Commencement Date for the Third Expansion Space shall be on or after
the fifteenth (15th) anniversary of the Low-Rise Commencement Date, but in
no event later than one hundred ninety-two (192) months after the Low-Rise
Commencement Date.
Each of the aforesaid time periods (i.e. 60 months through 78 months, 120
months through 136 months and 180 months through 192 months) is herein referred
to as a "Window Period".
(c) Tenant's option to lease Post-Occupancy Expansion Space shall be
exercisable by written notice from Tenant to Landlord of Tenant's election to
exercise said option given not more than thirty (30) days after the applicable
Post-Occupancy Expansion Notice. Tenant's notice shall specify the Rentable Area
Tenant elects to lease, which must comply with Section 44(d), and whether it
elects that Rent be at Market Rental Rate or at the rate set forth in Section
44(g)(i) below. If no election is made by Tenant as to the Rent, the Rent shall
be the rate set forth in Section 44(g)(i) below.
(d) Tenant may not elect to lease less than a minimum thousand five
hundred (7,500) square feet of Rentable Area of Post-Occupancy Expansion Space
on a floor in order to exercise its option as to that floor and must lease space
in portions and configurations subject to Landlord's reasonable approval so as
to allow commercially reasonable leaseable remaining area. In the event that
Tenant would be the only Tenant on a floor and desires to lease ninety percent
(90%) or more of that floor, Tenant must also lease the remaining space so it is
leasing the entire floor.
(e) Tenant may only exercise a Post-Occupancy Expansion Option, if
at the time of Tenant's exercise, this lease is in full force and effect and
Tenant is not in Default.
(f) At Tenant's written request, from time to time Landlord will
advise Tenant of the expiration dates of leases with tenants occupying
Post-Occupancy Expansion Space. The purpose of such advice is to give Tenant a
general idea of when such space will become available, and Landlord will not be
bound by such dates as the availability date for such space unless and until
Landlord expressly designates such date as a
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Post-Occupancy Expansion Space Commencement Date pursuant to a Post-Occupancy
Expansion Notice.
(g) If Tenant has exercised a Post-Occupancy Expansion Option, then
effective as of the Post-Occupancy Expansion Space Commencement Date, the
portion of Post-Occupancy Expansion Space which Tenant will lease shall be
included in the Premises, subject to all of the terms, conditions and provisions
of this lease, except that:
(i) unless Tenant has elected that Rent be at Market Rental
Rate, Base Rent per square foot of Rentable Area of the Post-Occupancy
Expansion Space shall be equal to Twenty-Four and 50/100 Dollars ($24.50)
escalated by one and one-half percent (1.5%) compounded annually from the
Low-Rise Commencement Date to the Post-Occupancy Expansion Space
Commencement Date, and Tenant shall pay Additional Rent for such space;
(ii) the Rentable Area of the Premises shall be increased by
the Rentable Area of the Post-Occupancy Expansion Space; and
(iii) the term of the demise covering the Post-Occupancy
Expansion Space shall commence on the Post-Occupancy Expansion Space
Commencement Date and, except as permitted by Section 46, shall expire
simultaneously with the expiration or earlier termination of the Term of
this lease, including any extension or renewal thereof;
(iv) If the rate of Base Rent set forth above in Section
44(g)(i) and not Market Rental Rate applies,
A. Landlord will provide Tenant a Fifty Dollar ($50.00)
per square foot of Rentable Area construction allowance for space
not previously improved for office occupancy ("Undeveloped Space")
and a Twenty Dollar ($20.00) per square foot of Rentable Area
construction allowance for space previously improved for office
occupancy ("Developed Space") (such amount for Developed Space to be
inflated by the Dodge Construction Index [for the area which
includes Chicago, Illinois and the smallest surrounding areas] from
the Low-Rise Commencement Date to the Post-Occupancy Expansion
Space Commencement Date, or in the event the Dodge Construction
Index is no longer available, then a comparable index published by a
major bank or other financial construction or by a university or a
recognized financial publication); and
B. Tenant shall be entitled to an abatement of Base Rent
for the periods set forth below from and after the applicable
Post-Occupancy Expansion Commencement Date for both Developed and
Undeveloped Space:
(1) ninety (90) days for less than one-half (1/2) floor, but
no later than Tenant's occupancy; or
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(2) one hundred twenty (120) days for one half (1/2) floor
or more, but no later than Tenant's occupancy.
(v) Rent shall be at the Market Rental Rate, if Tenant has so
elected at the time it exercised such Post-Occupancy Expansion Option;
(vi) the Post-Occupancy Expansion Space shall be leased in its
"as is" condition as of the Post-Occupancy Expansion Space Commencement
Date unless the Market Rental Rate includes as a component thereof a
different level of tenant improvement, and, except as stated aforesaid,
Landlord shall have no obligation to improve such space for Tenant's
occupancy;
(h) In the event Landlord wilfully fails to deliver possession of
any Post-Occupancy Expansion Space on the pertinent Post-Occupancy Expansion
Space Commencement Date for any reason, such failure shall be deemed a default
of this lease by Landlord under Section 29 hereof, subject to the notice and
cure provisions contained therein. The failure of Landlord to deliver such space
on account of a hold-over by a prior tenant or occupant or an account of Force
Majeure shall not, except as hereafter provided, be deemed wilful and Landlord
shall not, except as hereafter provided, be deemed in default if such space is
delivered within the Window Period; provided, however, Tenant shall have no
obligation to commence payment of Rent for such Post-Occupancy Expansion Space
until it is in possession of all of such Post-Occupancy Expansion Space.
Landlord's failure to deliver such Post-Occupancy Expansion Space within the
Window Period shall be deemed a default of this lease by Landlord under Section
29 hereof, subject to the notice and cure provisions contained therein.
(i) In the event any portion of Post-Occupancy Expansion Space is
leased to Tenant other than pursuant to this Section 44, such portion of
Post-Occupancy Expansion Space shall thereupon be deleted from the total
Post-Occupancy Expansion Space which Landlord is obligated to make available to
Tenant and which Tenant may lease under this Section 44, but if Tenant fails to
lease such space as Post-Occupancy Expansion Space, such space shall continue to
be First Offer Space under Section 45 hereof.
45. Right of First Offer. Subject to the provisions hereinafter set forth,
Landlord hereby grants to Tenant the right to lease, on the terms and conditions
hereinafter set forth, (i) all of the Post-Occupancy Expansion Space ("First
Offer Space") at the time when Landlord is making a serious proposal to lease
such space to a prospective tenant and (ii) all of the First Offer Space which
becomes "Available for Leasing" (as hereinafter defined), during the First Offer
Period (as hereinafter defined).
(a) During the First Offer Period Landlord shall notify Tenant
("First Offer Notice") on or about the time Landlord is making a serious
proposal to a prospective tenant for a term of lease which would fall, in whole
or part, during the First Offer Period. The First Offer Notice shall contain the
location and Rentable Area of such portion of the First Offer Space, a date for
commencement of the term with respect to such portion of the First Offer Space
if leased by Tenant
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(the "First Offer Space Commencement Date"), and the Market Rental Rate for such
space as determined by Landlord for a term commencing on the First Offer Space
Commencement Date. If Tenant disputes Landlord's determination of the Market
Rental Rate (and the space in question is 7500 square feet or more and the term
is two years or greater), Tenant shall so notify Landlord as provided in Section
61(b) hereof and such dispute shall be determined in accordance with the
provisions of Section 61(b) hereof; provided, however, if the Market Rental Rate
has not been finally determined pursuant to Section 61(b) as aforesaid by the
First Offer Space Commencement Date, then, until the time of such determination,
Tenant shall pay Rent for such First Offer Space based on Landlord's preliminary
determination of the Market Rental Rate and upon such final determination in
accordance with Section 61(b), if the Market Rental Rate as so determined is
less than Landlord's preliminary determination of Market Rental Rate, then
Tenant shall thereafter pay the lesser amount as Rent for such First Offer Space
and Landlord shall refund to Tenant any excess Rent previously paid by Tenant
for such First Offer Space together with interest thereon at the Prime Plus
Rate. The First Offer Space Commencement Date shall not be less than sixty (60)
days after the date such notice is given by Landlord. Tenant shall have the
right to lease all, but not less than all, the First Offer Space described in
the First Offer Notice upon written notice from Tenant to Landlord of Tenant's
election to exercise said right given not later than fifteen (15) business days
after the First Offer Notice is given. Tenant's notice shall also specify
whether Tenant elects that Rent for such First Offer Space be at the Market
Rental Rate (or if Tenant does not specify Market Rental Rate, then Rent will be
the alternative rate, in accordance with Section 44(d)(i)). If Tenant's right to
lease such First Offer Space is not so exercised, Landlord shall have a period
("Marketing Period") of nine (9) months, with respect to First Offer Space
containing from seventy percent (70%) of a floor to a full floor, and six (6)
months, with respect to First Offer Space containing less than seventy percent
(70%) of a floor, to market such space and enter into a letter of intent or
lease with respect to such space with a bona fide tenant before being obligated
to again offer such First Offer Space to Tenant. However, Landlord shall again
be obligated to offer such First Offer Space to Tenant pursuant to this Section
45(a) if (i) such Marketing Period ends without Landlord entering into a letter
of intent or lease, or (ii) negotiations with such prospective tenant are
abandoned prior to the end of such Marketing Period.
(b) From time to time during the First Offer Period, if Tenant in
good faith desires to lease First Offer Space, Tenant may request that Landlord
notify Tenant of the First Offer Space which is then Available for Leasing and
the Market Rental Rate therefor, and Landlord shall notify Tenant ("Availability
Notice") within fifteen (15) days after such request as to which First Offer
Space is Available for Leasing and the Market Rental Rate therefor for terms
commencing on or about sixty (60) days thereafter. If Tenant disputes Landlord's
determination of the Market Rental Rate (and the space in question is 7500
square feet or more and the term is two years or greater), Tenant shall so
notify Landlord as provided in Section 61(b) hereof and such dispute shall be
determined in accordance with the provisions of Section 61(b) hereof; provided,
however, if the Market Rental Rate has not been finally determined pursuant to
Section 61(b) as aforesaid
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by the First Offer Space Commencement Date, then, until the time of such
determination, Tenant shall pay Rent for such First Offer Space based on
Landlord's preliminary determination of the Market Rental Rate and upon such
final determination in accordance with Section 61(b), if the Market Rental Rate
as so determined is less than Landlord's preliminary determination of Market
Rental Rate, then Tenant shall thereafter pay the lesser amount as Rent for such
First Offer Space and Landlord shall refund to Tenant any excess Rent previously
paid by Tenant for such First Offer Space together with interest thereon at the
Prime Plus Rate. Tenant may elect by notice to Landlord to lease First Offer
Space which is then Available for Leasing as of a First Offer Space Commencement
Date no earlier than ten (10) days nor later than thirty (30) days after its
notice to Landlord electing to lease such space. Tenant shall designate the
First Offer Space Commencement Date in its notice and shall also specify in its
notice whether it is electing that Rent be at the Market Rental Rate (or if
Tenant does not specify Market Rental Rate, then Rent will be the alternative
rate, in accordance with Section 44(d)(i)). If Tenant's notice of election is
given more than thirty (30) days after Landlord's Availability Notice, Landlord
may notify Tenant of any change in its determination of the Market Rental Rate
which shall again be subject to arbitration in accordance with Section 61(b)
hereof. Tenant may not elect to lease less than all contiguous First Offer Space
then Available for Leasing, on a floor, but if space on more than one floor is
then Available for Leasing, Tenant shall not be obligated to lease space on more
than one floor. A portion of the First Offer Space shall be deemed to be
"sAvailable for Leasing" following the satisfaction or occurrence of the
following events:
(i) the expiration of a Current Lease (as hereinafter defined) of
such portion of the First Offer Space (including any extensions or
renewals), if such portion of the First Offer Space is not then subject to
an option to lease such space granted in another Current Lease; or
(ii) if such portion of the First Offer Space is subject to an
option granted in another Current Lease, which option is not exercised,
the later to occur of (A) the expiration of such option and (B) the
expiration of the Current Lease of such portion of the First Offer Space
(including any extensions or renewals); or
(iii) if such portion of the First Offer Space is subject to an
option granted in another Current Lease, which option is exercised, the
expiration of the term of such other Current Lease or any later date on
which the term of the demise of such portion of the First Offer Space
created by the exercise of such option (including any renewals or
extensions thereof) expires; or
(iv) The First Offer Space is vacant and there are no Current Leases
or legal rights to possession held by persons other than Landlord;
and in all cases, all negotiations by prospective tenants to lease First
Offer Space have been abandoned, and Landlord has not subsequently made a
serious proposal which would trigger Tenant's right to lease First Offer
Space under Section 45(a).
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First Offer Space shall not be deemed "Available For Leasing" at any time
Tenant's rights under Section 45(a) are applicable or have revived.
(c) Tenant may only exercise its right to lease First Offer Space,
if at the time of Tenant's exercise, this lease is in full force and effect and
Tenant is not in Default.
(d) If Tenant has exercised its right to lease a portion of the
First Offer Space, then effective as of the First Offer Space Commencement Date
such portion of the First Offer Space shall be included in the Premises subject
to all of the terms, conditions and provisions of this lease except that:
(i) the Rent and Landlord's Allowance for such portion of the
First Offer Space shall be at the same rate as would have been established
under Section 44(g) if such space were being leased as Post-Occupancy
Expansion Space, except if Tenant has not elected that Rent be at the
Market Rental Rate, the one and one-half percent (1.5%) annual compounding
described in Section 44(g) shall be from the Low-Rise Commencement Date to
the applicable First Offer Space Commencement Date, and if Tenant has
elected that Rent be at Market Rental Rate, the Market Rental Rate shall
be as determined pursuant to this Section 45;
(ii) the Rentable Area of the Premises shall be increased by
the Rentable Area of such portion of the First Offer Space;
(iii) the term of the demise covering such portion of the
First Offer Space shall commence on the First Offer Space Commencement
Date and, except as permitted by Section 46, shall expire simultaneously
with the expiration or earlier termination of the Term of this lease,
including any extension or renewal thereof; and
(iv) subject to clause (i) above, the First Offer Space shall
be leased in its "as is" condition as of the First Offer Space
Commencement Date unless Tenant has elected Market Rental Rate and the
Market Rental Rate includes as a component thereof a different level of
tenant improvement, and except as stated aforesaid, Landlord shall have no
obligation to improve such space for Tenant's occupancy.
(e) If Tenant has exercised its right to lease a portion of the
First Offer Space, within thirty (30) days after request by either party,
Landlord and Tenant shall enter into a written supplement to this lease
confirming the terms, conditions and provisions applicable to such portion of
the First Offer Space.
(f) If Landlord wilfully fails to deliver possession of any First
Offer Space on the pertinent First Offer Space Commencement Date for any reason,
such failure shall be deemed a default of this lease by Landlord under Section
29 hereof, subject to the notice and cure provisions contained therein. The
failure of Landlord to deliver such space on account of a hold-over by a prior
tenant or occupant or on account of Force Majeure shall not be deemed wilful.
(g) As used herein, the following terms shall have the following
meanings:
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(i) the term "First Offer Period" shall mean the portion of
the initial Term of this lease commencing on February 2, 1992 (or if
Tenant has committed before February 2, 1992 to take all of the
Pre-Occupancy Expansion Space, the date upon which Tenant so committed)
and excluding the last five (5) years of the initial Term; provided, that,
during the last five (5) years of the initial Term, Tenant's rights shall
be in effect only as to Section 45(a) and only if proposals then being
made which trigger the offer of First Offer Space to Tenant under Section
45(a) are for terms which would expire before the end of the initial Term.
(ii) the term "Current Lease" shall mean a lease of any space
in the Building in effect on or before February 2, 1992 or entered into
after Tenant failed to exercise its option under Section 45(a) (including
extensions and renewals thereof pursuant to options granted therein),
whether or not the term of such lease has yet commenced.
46. Termination Option. Tenant shall have the option (the "Termination Option")
to terminate this lease with respect to all or any part of the Premises, subject
to the terms and conditions hereinafter set forth.
(a) Provided that this lease is in full force and effect and Tenant
is not in Default, Tenant may elect to terminate this lease with respect to all
or part of the Original Premises, Pre-Occupancy Expansion Space or Post
Occupancy Expansion Space as of the day before the fifteenth (15th) anniversary
of the Low-Rise Commencement Date (the "Termination Date") by written notice to
Landlord ("Termination Notice") delivered no later than fifteen months prior to
such Termination Date. The Termination Notice shall identify that portion of the
Original Premises, Pre-Occupancy Expansion Space or Post-Occupancy Expansion
Space as to which Tenant as elected to terminate this lease.
(b) In consideration of said termination, Tenant shall pay to
Landlord a termination payment ("Lease Termination Payment") equal to the sum of
all costs necessary to demolish the following components of the base building
customized for Tenant and the related costs of rebuilding or restoring such base
building components:
(i) Building signage identifying Tenant;
(ii) Tenant escalator/interfloor stairs;
(iii) Tenant features in the central lobby;
(iv) Tenant raised floor area; and
(v) Tenant specialized areas, e.g., Kitchen Facilities, dining
rooms, auditorium and any customized areas where the base building
structure or building systems has changed from that provided for in the
specifications and drawings attached hereto as Attachments 10 and 11 as
result of Tenant Improvements or at Tenant's request.
Notwithstanding the foregoing, the Lease Termination Payment shall
not exceed the lesser of (x) One Million Dollars
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($1,000,000.00) or (y) Landlord's actual cost of demolishing, restoring and
rebuilding the items specified in (i) through (v) above in anticipation of the
next occupancy of such space as determined or determinable within the period
ending on the date ("Payment Determination Date") which is the earlier to occur
of (A) three (3) years after the effective date of the termination, and (B) the
date on which the demolition, restoration and rebuilding is completed.
(c) On the Termination Date, Tenant shall pay to Landlord Landlord's
reasonable estimate of the Lease Termination Payment, which shall be determined
by taking into account the amount of space being vacated by Tenant and
reasonable likelihood of a prospective tenant desiring to use Tenant's
customized tenant improvements. The Lease Termination Payment shall be placed in
an interest-bearing account, with interest accruing for the benefit of Tenant,
and which Landlord may use for demolition, restoration and rebuilding. In the
event that the demolition, restoration and rebuilding of such space as provided
in subsection (b)(y) above is (x) less than the Lease Termination Payment
deposited with Landlord, the difference shall be refunded to Tenant upon the
Payment Determination Date, together with the interest earned on said sum or (y)
more than the Lease Termination Payment deposited with Landlord, Tenant shall
pay to Landlord within fifteen (15) days after notice the balance owed.
(d) In addition to the Lease Termination Payment specified above, on
the Termination Date, Tenant shall pay to Landlord the sum of Seventy-Five
Dollars ($75.00) per square foot of Rentable Area of the Premises with respect
to which this lease is terminated by Tenant pursuant to this section for Rent
lost by Landlord.
(e) With respect to the Office Premises, Tenant shall have no right
to terminate less than one-half (1/2) of a floor. In the event that Tenant
elects to exercise its right of termination under this Section 46 with respect
to less than a full floor of the Office Premises, such termination is subject to
Landlord's approval as to location and configurations to allow commercially
reasonably leaseable remaining area.
(f) Provided that this lease is in full force and effect and Tenant
is not in Default, Tenant may by written notice to Landlord ("Lobby Termination
Notice"), elect to terminate this lease with respect to the Lobby Space as of
the day before the fifth (5th) anniversary of the Low-Rise Commencement Date or
as of the day before each subsequent anniversary date. The Lobby Termination
Notice shall specify the effective date ("Lobby Termination Date") of such
termination, which date shall be no earlier than twelve (12) months after the
date of the Lobby Termination Notice. On the Lobby Termination Date, Tenant
shall pay to Landlord an amount equal to the unamortized Landlord's Allowance
previously paid with respect to the Lobby Space (using straight line
amortization over the initial Term).
47. Participation in Net Cash Flow and Proceeds of Sale and Refinancing.
(a) Tenant is hereby granted a contractual right to receive a
percentage interest (the "CT&T Percentage"), equal to fifty percent (50%) of a
fraction having a numerator equal to
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the Rentable Area of the Initial Office Premises and having a denominator equal
to the total Rentable Area of the Building determined pursuant to Section 1(a)
hereof, in (i) net cash flow after operating and capital reserves and also in
(ii) the proceeds that the Development Partnership receives upon a sale or
refinancing of the Building, in each case after repayment of loans (including
interest thereon), equity invested by the Partners in the Development
Partnership and a rate of return on such equity as provided in the partnership
agreement for the Development Partnership ("CT&T Participation"). "Development
Partnership" means the partnership which is created for the development of the
Building, one of whose partners will initially be Linpro Chicago Property I
Limited Partnership, an Illinois limited partnership ("Linpro"), or a Linpro
Affiliate, but if no new partnership is created for the development of the
Building and Linpro Chicago Land Limited Partnership will develop the Building
after a transfer of partnership interests from the non-Linpro partner to a new
investor partner other than Linpro or a Linpro Affiliate, the "Development
Partnership" will be the reconstituted Linpro Chicago Land Limited Partnership.
If at any time a land trust ever is Landlord, the Development Partnership shall
not be Landlord but shall be its beneficiary. Net cash flow and proceeds of sale
or refinancing will be distributed to Tenant at the time it is distributed to
Linpro. Tenant hereby agrees to contribute cash for the benefit of the Building
if and when the partners in the Development Partnership are required to make
capital contributions or loans. The amount to be contributed by Tenant shall be
equal to the CT&T Percentage multiplied by the total amount to be contributed
both by Tenant and for or on behalf of the Development Partnership; provided
that Tenant's obligation to contribute cash hereunder will be limited to the
amount of cash Tenant previously received with respect to net cash flow or
proceeds of refinancing (and is only enforceable against the CT&T
Participation); and further provided that Tenant will be entitled to repayment
of amounts so contributed if, as and when the partners in the Development
Partnership are repaid their loans or are distributed their cash contributions.
In lieu of contributing cash up to the amount of refinancing proceeds received
by Tenant, or if the contribution required is in excess of cash previously
received, then Tenant's right to future sale and refinancing proceeds will be
reduced by the amount of cash it did not contribute. As used herein the terms
"net cash flow", "proceeds of sale or refinancing" and "rate of return on equity
shall have the meanings ascribed to them in the partnership agreement for the
Development Partnership; provided that such meanings shall be developed in good
faith, shall be reasonable and in accordance with industry standards, and shall
not unfairly discriminate against Tenant. The CT&T Participation will be diluted
on a pro rata basis with Linpro, which means that the CT&T Percentage will be
reduced to be that percentage obtained by multiplying the CT&T Percentage by the
initial percentage interest in the newly-created or reconstituted Development
Partnership held by Linpro and/or a Linpro Affiliate after initial dilution for
debt and equity. The interest of Transportation Leasing Co. (formerly Greyhound
Lines, Inc.) under the Development Participation Agreement dated December 31,
1986 will not reduce the CT&T Participation. In no event shall the CT&T
Percentage be reduced below twenty-five percent (25%) of a fraction whose
numerator is the Rentable Area of the Initial Office Premises and whose
denominator is the total Rentable Area of the Building, determined pursuant to
Section 2(a) hereof. In the event of cost overruns, the CT&T Participation is
hereby
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subordinated to repayment of third party loans or loans by the Development
Partnership or partners therein to the extent Tenant does not participate in the
payment of such excess costs.
Tenant shall be furnished with a copy of the partnership agreement (and
all amendments and modifications thereto) for the Development Partnership and
shall be furnished with annual reports of the Development Partnership consisting
of an annual balance sheet and profit and loss statement, certified by one of
the Big 8 accounting firms, within 120 days after the close of each calendar
year and on a quarterly basis, a statement of cash flow and a leasing status
report containing names of tenants and square feet committed. Landlord shall
also furnish Tenant no later than October 30th of each calendar year with a
statement of projected cash flow for the next calendar year and periodically
shall furnish Tenant with any other material information necessary to accurately
calculate, evaluate and determine the CT&T Participation. Tenant shall also be
furnished with copies of the note, mortgage, loan agreement and any other
material loan and/or equity documentation pertaining to the CT&T Participation,
Tenant's operation and/or the construction of the Building.
(b) If Linpro sells all or part of its partnership interest in the
Development Partnership to an entity other than a Linpro Affiliate, then,
Landlord shall cause Tenant to receive a portion of the proceeds of sale based
upon its CT&T Participation as if its interest were a partnership interest being
sold at the same time at the same ratio of dollars to partnership interest as
received by Linpro and Tenant's interest will be reduced proportionately
(except as hereinafter provided). For purposes of this Section 47(b), the sale
of a partnership interest will include any transfer pursuant to a right of
first offer or buy-sell or squeeze down, but shall exclude a voluntary non-arms
length transfer. Tenant's interest will not be reduced below the minimum
fraction for dilution set forth above except where Linpro's partnership interest
is entirely diluted or transferred from a squeeze-down (i.e., to zero). For
purposes of this Section 47, "Linpro's partnership interest" will be deemed to
mean the aggregate interests held by Linpro or a Linpro Affiliate and the
partners of Linpro or a Linpro Affiliate at the time of the signing of this
lease, as reorganized and reconfigured from time to time. As used in this lease
the term "Linpro Affiliate" shall mean any entity comprised of (i) persons
(including their family members) who operate as partners or employees of the
group of entities identified by the name "The Linpro Company", and/or (ii)
entities comprised of such persons and which entity holds itself out and
effectively operates as part of the group of entities so identified.
(c) The CT&T Participation will serve as security for Tenant's
performance of its obligations under this lease. Because the CT&T Participation
is being granted to Tenant in consideration of its faithful performance of its
lease obligations and continuation as a tenant for the entire Term, if there is
a Default under this lease (after the expiration of all notice and cure
periods), the CT&T Participation will terminate, be valued at zero (0) and be of
no further force and effect; except that after the date which is the earlier to
occur of (a) the date on which ninety percent (90%) of the Rentable Area of the
Building is leased to tenants who are in occupancy and paying rent, and (b) five
(5) years after substantial completion of the Building, the CT&T Participation
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will be valued at market value upon termination of this lease. In the case of
(b) Landlord may, in its discretion, waive termination of the CT&T Participation
upon a Default and there will be no valuation of the CT&T Participation. For
purposes of this subsection (c), any non-monetary default disputed by Tenant
shall not be deemed a Default permitting the termination of the CT&T
Participation until said non-monetary default has been adjudicated by a court of
competent jurisdiction. Market value of the CT&T Participation shall be
determined in accordance with Section (h) hereof.
(d) Landlord is hereby granted a right to purchase the CT&T
Participation at market value under the following circumstances: in the event of
an early lease termination by Tenant; in the event Chicago Title and Trust
Company or an Affiliate elects to transfer its interest to a third party or an
Affiliate described in subsection (iii) of the definition of Affiliate in
Section 12(a) hereof in accordance with Section 47(e) below; or if the CT&T
Participation is ever held by an Affiliate, then at the time such Affiliate no
longer qualifies as an "Affiliate" unless the CT&T Participation is reconveyed
to Chicago Title and Trust Company or to an Affiliate permitted under Section
47(e) hereof; or in the event of a bankruptcy of Tenant where Tenant is not
otherwise in Default. Upon a purchase of the CT&T Participation by Landlord, the
CT&T Participation shall terminate.
(e) Landlord must elect to exercise its purchase right in any
particular case within forty-five (45) days after the right accrues; provided
however, if Landlord is exercising its right on account of any reason other than
a transfer of the CT&T Participation to a third party or an Affiliate described
in subsection (iii) of the definition of Affiliate in Section 12(a) hereof, such
exercise may be revoked in writing within ten (10) days after the market value
is determined in accordance with Section 47(h) hereof. In the event Landlord
fails to timely notify Tenant of its revocation, Landlord shall be deemed to
have waived its right to revoke its exercise. Chicago Title and Trust Company
may transfer the CT&T Participation to a third party or an Affiliate described
in subsection (iii) of the definition of Affiliate in Section 12(a) hereof,
subject to Landlord's purchase right at market value (as described below) and
approval right as to the character and financial stability of the transferee,
such approval not to be unreasonably withheld; or if the CT&T participation is
ever held by an Affiliate, then such approval right shall also apply at the time
such Affiliate no longer qualifies as an "Affiliate" unless the CT&T
Participation is reconveyed to Chicago Title and Trust Company or to an
Affiliate permitted under this Section 47(e). The tests of character and
financial stability should be similar to those contained in Section 12 hereof.
The offer of any third party offeree shall be taken into account when
determining the market value. Notwithstanding anything to the contrary contained
herein, Chicago Title and Trust Company may transfer the CT&T Participation to
an Affiliate described in subsections (i), (ii), or (iv) of the definition of
Affiliate in Section 12(a) hereof. Tenant shall have the right to grant a
security interest in and to the CT&T participation as collateral for financing,
subject to the Landlord's rights under this Section 47 and this lease with
respect to the CT&T Participation and under terms and conditions which are
reasonably acceptable to Landlord; provided, however, that
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Tenant shall not have the right to encumber, mortgage or pledge Tenant's
interest in the leasehold estate or to permit any liens or encumbrances on the
Land or the Building in connection with the CT&T Participation. For purposes of
this Section 47 an Affiliate shall be deemed not to be a third party.
(f) Provided that Landlord has fully and completely performed its
obligations under this Section 47, the CT&T Participation will terminate on the
sale of the Building (including a foreclosure or transfer to a lender of the
entire ownership interest) or sale of Linpro's entire interest in the
Development Partnership, in either case, other than a sale to a Linpro
Affiliate.
(g) The CT&T Participation is not a partnership interest and Tenant
is not and will not be a partner of Landlord or Linpro.
(h) In the event that Landlord is to purchase the CT&T Participation
and market value is to be used in determining the price to be paid, Landlord may
notify Tenant of its determination of the market price. If Tenant does not
respond in writing within ten (10) days of its disagreement and determination of
the market value, then Landlord's determination shall be binding. If Landlord
does not so notify Tenant, or if it does notify Tenant and Tenant disagrees as
provided above, then Landlord and Tenant shall each select an appraiser within
ten (10) days after request of either party for determination of market value
under this Section 47(h). The two (2) appraisers selected by Landlord and Tenant
shall within ten (10) days after their respective appointments, each make a
determination of the market value. If the difference between the market values
determined by each of the appraisers is less than five (5%) percent of the
lesser value, the average of the two values shall be the market value to be used
in determining the purchase price to be paid. If the difference between the two
values is more than five (5%) percent of the lesser value, then the two
appraisers shall within twenty five (25) days after their respective
appointments appoint a third appraiser. The third appraiser shall make his
determination of the market value within ten (10) days of his appointment. If
the difference between the third appraiser's determination of market value and
the average of the market values specified by the first two appraisers is less
than ten percent (10%) of the lower of the third appraiser's determination and
said average, then the average of the three market value determinations shall be
market value to be used in determining the purchase price to be paid. Otherwise,
the average of the two closest market value determinations shall be the market
value to be used in determining the purchase price to be paid for the CT&T
Participation. The three (3) appraisers shall be MAI appraisers licensed by the
State of Illinois and shall have at least ten (10) years experience in
appraising commercial real estate in the Chicago metropolitan area.
48. Parking. Throughout the Term, as extended, Tenant shall have the right to
use up to thirty (30) reserved parking spaces in the Garage at prevailing
monthly rates for reserved spaces, such spaces relating to the Original Office
Premises, so long as Tenant pays all charges for parking when due; provided,
however, if the operator of the Garage provides for more favorable rates for
periods longer than one month, then Tenant shall be entitled to use all or part
of its parking spaces for
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such longer period at the more favorable rate. Tenant shall be entitled to
exercise all rights and privileges with respect to its parking spaces that are
granted to any other user of parking in the Garage upon payment by Tenant of the
prevailing charges for such privileges, if any. As used in the foregoing
sentence, the word "rights and privileges" is intended to include, but not be
limited to, items such as car starting services, security, rights to pay for
parking spaces on a quarterly or annual basis at reduced rates and car cleaning
and washing or polishing services. The approximate location of the initial
reserved parking spaces is shown in Attachment 9 hereto to this lease which will
be adjacent to the Vault Space. Tenant has the right to expand parking beyond
the initial thirty (30) spaces at the rate of one (1) space per ten thousand
(10,000) rentable square feet of office space leased in addition to the Original
Office Premises, subject to a cap of fifty (50) spaces overall (including
initial and additional spaces). Landlord shall xxxx such spaces or otherwise
indicate by signs that they are reserved for Tenant's use, but Landlord shall
not be obligated to police use of such spaces on a daily basis. Tenant shall be
required to execute the form of parking agreement, if any, in use from time to
time and abide by parking regulations applicable from time to time for parking
in the Garage. Landlord will cooperate with Tenant if it desires spaces in
addition to the fifty (50) spaces provided for above, but it will not be
obligated to make additional reserved parking available. Tenant may allow
customers to use its reserved parking spaces for business purposes only.
Tenant's right to reserved parking spaces shall terminate (and shall not be
revived) at the rate of one (1) space per ten thousand (10,000) square feet of
Rentable Area of office space with respect to which this lease is terminated
under Section 46 after the termination of the first fifty thousand (50,000)
square feet of Rentable Area of office space, but if the entire lease is
terminated, Tenant shall have no further right to use any parking spaces (except
that certain parking rights may be transferred under circumstances of a release
and termination under Section 12).
49. Antenna/Satellite Dish. Subject to the conditions hereinafter set forth,
Landlord hereby grants to Tenant the right during the Term and any extension
thereof to mount a TV antenna and/or a satellite dish for Tenant's use only (and
not for sale, license or use by any third party) on the roof of the Building.
Within thirty (30) days after Tenant gives Landlord written notice of Tenant's
intention to exercise the right granted hereby, specifying in detail the
requirements of such installation, Landlord shall reasonably designate by
written notice to Tenant an appropriate area for suchs installation
("Installation Area"). Tenant shall be responsible for all installation charges,
governmental permit charges and costs, if any, to architecturally conceal the
antenna and/or satellite dish into the overall Building appearance, including
related engineer and architect fees; provided, however, notwithstanding the
foregoing the costs to conceal an antenna of up to two (2) meters in height
and/or satellite dish of up to two (2) meters in diameter are Landlord's
responsibility under the specifications attached hereto as Attachment 11.
Tenant shall be responsible for all costs of operation and maintenance to keep
the antenna or satellite dish in good working order and repair. The antenna or
satellite dish shall be connected, at Tenant's cost, to the premises through
then existing electrical, telephone or mechanical shafts. Tenant shall bear
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all risk of loss or damage to or theft of the antenna and/or satellite dish and
shall include such equipment under Tenant's insurance policies required under
Section 19. Notwithstanding anything to the contrary, the rights herein granted
to Tenant shall be subject to the following conditions precedent:
(a) there must then be available space on the roof and existing
electrical, telephone or mechanical shafts from the roof to the Premises for
Tenant's proposed roof installation; provided that if Tenant notifies Landlord
prior to the Low-Rise Commencement Date that it is exercising its right,
Landlord agrees that there will be space available;
(b) Landlord's architect or engineer shall approve of the design and
specifications of the antenna or satellite dish, such approval shall not to be
unreasonably withheld; and
(c) Tenant shall, at its expense, comply with the applicable
requirements of any municipal, county, state, federal or other governmental
ordinance, law, rule or regulation including obtaining all permits, licenses and
any necessary zoning variances and other governmental approvals. Landlord will
cooperate with Tenant in gaining such approvals; provided any expense of
Landlord in so cooperating shall be borne by Tenant. The installation and
operation of the antenna or satellite dish shall not interfere with the safety
or operations of the Building or the reception or transmission of signals by the
other tenants or occupants of the Building and shall comply with any provisions
of this lease relating to Tenant's performance of construction or making
alterations, additions or improvements.
If Tenant requires any additional structural support not provided
for in the outline specifications attached hereto as Attachment 11, Tenant shall
pay the cost of such additional support. Normal Tenant transmission (other than
general broadcasting) from approved equipment will not be deemed to violate the
foregoing restriction on interference, but Landlord reserves the right to
relocate Tenant's equipment at Landlord's expense (and Landlord shall pay all of
Tenant's reasonable related costs provided that Tenant shall have identified
categories of such costs in advance of such relocation) to avoid such
interference.
Tenant's equipment on the roof which is removable without damage to
the Building shall remain the property of Tenant and shall be removed by Tenant,
at its sole cost and expense, upon the termination of this lease by lapse of
time or otherwise; cables, wires and other facilities in mechanical shafts and
any equipment wherever located which would cause damage to the Building if
removed shall, at Landlord's election, become the property of Landlord upon the
termination of this lease by lapse of time or otherwise, or Landlord may require
their removal by Tenant or Tenant's payment of the cost of removal by Landlord.
Landlord agrees that once the paths of transmission of Tenant's TV antenna
and/or satellite dish have been established the installation and operation of
other antenna and satellite dishes on the roof of the Building by other tenants
or occupants of the Building shall not interfere with the reception or
transmission of signals by Tenant over its fixed identified path.
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50. Existing Tenant vacation; Commencement of Construction; Termination
Payment; Schedule Advancement; Failure to Meet Low-Rise Access Date.
(a) Landlord agrees that if the tenants under the leases of the
existing buildings on the Land do not vacate the existing buildings by September
1. 1990, then Tenant may, within five (5) days after such date, terminate this
lease and receive a termination payment of Two Million Dollars ($2,000,000)
("Existing Tenant Vacation Termination Payment"). If Tenant so terminates this
lease, Landlord and Tenant shall be released from all liabilities and
obligations under or in connection with this lease, except that Landlord shall
be liable to make the Existing Tenant Vacation Termination Payment. The failure
of Tenant to terminate this lease within said five (5) day period shall be
deemed a waiver of the right to terminate this lease and waiver of the right to
receive the Existing Tenant Vacation Termination Payment by reason of the
failure of the tenants to vacate the existing buildings as aforesaid and this
lease shall remain in full force and effect.
(b) Landlord shall commence construction of the Building by March 1,
1991. Landlord will have no liability for failure to commence construction by
such date, except as hereinafter provided. "Commencement of construction" under
this paragraph means commencement of excavation and commencement of installation
of caissons. If Landlord fails to commence construction by March 1, 1991,
whether or not due to Force Majeure, then for informational purposes only
Landlord will promptly furnish Tenant a letter ("Informational Letter") from a
person or entity with sufficient experience and knowledge of the facts (who may
be a contractor, construction consultant, architect or other third party,
whether or not independent or employed by Landlord) stating whether or not
Landlord can achieve Substantial Completion of the low-rise portion of the
Building (as defined in Section 35 hereof) by the last date on which Tenant may
terminate this lease for failure to achieve Substantial Completion of the low
rise portion of the Building under Section 51, assuming no Force Majeure, and
which may be appropriately qualified if Force Majeure has already occurred. The
Informational Letter may assume that Landlord may use overtime or additional
work shifts.
(c) If Landlord fails to commence construction of the Building by
March 1, 1991, subject to Force Majeure (within the time limits hereafter
provided in this Section 50(c)), Tenant will have the right to terminate this
lease (subject to the restrictions set forth in this subsection) and receive a
termination payment of Ten Million Dollars ($l0,000,000) ("Construction
Termination Payment") upon such termination, as its sole remedy. If Landlord
fails to commence construction of the Building by March 1, 1991, as extended by
Force Majeure, and Tenant has not already terminated this lease as permitted
above, then Landlord will notify Tenant approximately thirty (30) days in
advance of the date on which Landlord anticipates it will commence construction
of the Building. In such case, Tenant may extend the March 1, 1991 date (and
correspondingly extend the right of Tenant to terminate this lease) for
commencement of construction, as extended by Force Majeure, each month on a
monthly basis, but not beyond April 1, 1992 in any event (and by each such
extension also extending its right to terminate this lease for Landlord's
failure to commence construction by March 1, 1991, as extended by Force
Majeure).
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In the event Landlord then fails to commence construction on or before March 1,
1991, as extended by Tenant and by Force Majeure, then as Tenant's sole remedy,
Tenant will have the right to terminate this lease and receive the Construction
Termination Payment upon such termination. Prior to an extension and at Tenant's
request, Landlord will deliver an updated Informational Letter to Tenant.
Tenant's notice of termination shall be made, if at all, within thirty (30) days
after Landlord's failure to meet the required date, but in no event later than
ten (10) days prior to Landlord's anticipated commencement of construction as
set forth in the 30-day advance notice from Landlord. Notwithstanding anything
to the contrary, but subject to Section 51 hereof, once Landlord has commenced
construction, Tenant may not terminate this lease or receive the Construction
Termination Payment. Extension of the date for commencement of construction due
to Force Majeure not constituting Extraordinary Force Majeure (as defined on
Attachment 15 hereto) will be limited to ninety (90) days. Landlord will not be
entitled to an extension of such date due to a Force Majeure event which would
have been avoided had Landlord acted in a timely and diligent manner intending
to meet target dates set forth in the schedule attached hereto as Attachment 13.
If Landlord has not commenced construction on or before April 1, 1992,
regardless of whether Extraordinary Force Majeure has occurred, then this lease
will automatically terminate; such automatic termination will be Tenant's sole
remedy and will have the same effect as a termination by Tenant under this
Section 50(c) and Tenant shall be entitled to prompt payment of the Construction
Termination Payment.
(d) On or about October 1, 1990, Landlord will review with Tenant
Landlord's proposed schedule for construction of the Building. No later than
sixty (60) days after commencement of construction, Landlord shall notify Tenant
whether it is advancing the schedule of events described in the time schedule
attached hereto as Attachment 13. Landlord will notify Tenant fourteen (14)
months in advance of the anticipated Low-Rise Access Date and will revise its
notice as may subsequently be necessary. If Landlord fails to meet the
anticipated Low-Rise Access Date or any revised date, then as Tenant's sole
remedy (except for the remedy expressly provided in Section 51 for failure to
meet the Low-Rise Access Date by the Outside Access Date) Landlord will pay
Tenant's reasonable costs and expenses payable to third parties which resulted
from mobilization of equipment or forces for the anticipated Low-Rise Access
Date which could not be avoided, postponed or minimized by Tenant when the date
was not met. If the schedule has been advanced as shown on Attachment 13 hereto
and Landlord meets the advanced target Low-Rise Access Date and the advanced
target date for Substantial Completion of the low-rise portion of the Building
(as defined in Section 35), then the Low-Rise Commencement Date will be the date
shown on the advanced schedule as shown on Attachment 13 hereto. Landlord will
not have any liability for failure to give notice of or meet any advanced
schedule date, except as expressly provided in Sections 50 and 51 and the second
to last paragraph of Section 35. If Landlord fails to give Tenant at least
fourteen (14) months' notice of the advanced Low-Rise Access Date, then as
Tenant's sole remedy the thirty-four (34) week period after the Low-Rise Access
Date described in the definition of Low-Rise Commencement Date will be extended
by the number of days between fourteen (14) months and the actual notice period
given before the advanced Low-Rise Access Date, but not in excess of
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the number of days between the Low-Rise Access Date and Tenant's subsequent
commencement of construction of Tenant Improvements for the Initial Premises.
The rights granted Tenant under this Section 50 are personal to
Chicago Title and Trust Company and its Affiliates.
51. Low-Rise Access Date; Substantial Completion; Termination Payment.
(a) Landlord hereby agrees to achieve Substantial Completion of the
low-rise portion of the Building (as defined in Section 35 hereof) by February
1, 1993, subject to extension for Force Majeure. Landlord will not have any
liability for failure to achieve Substantial Completion of the low-rise portion
of the Building by such date or any later date, except as hereinafter provided.
Remedies provided Tenant under this Section 51 will be Tenant's sole remedies
for Landlord's failure to achieve Substantial Completion of the low-rise portion
of the Building by such dates. If Landlord fails to achieve Substantial
Completion of the low-rise portion of the Building by February 1, 1993, whether
or not extended by Force Majeure, at Tenant's request Landlord will furnish
Tenant an Informational Letter.
In any event, if Landlord fails to achieve Substantial Completion of
the low-rise portion of the Building by February 1, 1993, then Landlord will be
responsible for any (a) rent and (b) Holdover Costs (as hereinafter defined), in
each case which would have been payable for the space then occupied by Tenant
after March 1, 1993 through October 31, 1993 (other than for space occupied by
persons intended to occupy the Top Floor); provided, however, if Force Majeure
has occurred, then Landlord shall not be obligated to pay rent, but only
Holdover Costs. If Landlord fails to achieve Substantial Completion of the
low-rise portion of the Building by February 1, 1993, then the target date for
Substantial Completion of the low-rise portion of the Building will then be
October 1, 1993, as shown on Attachment 13 hereto. If Substantial Completion of
the low-rise portion of the Building has not occurred by October 1, 1993,
Landlord will be responsible for any rent and Holdover Costs, in each case which
would have been payable for the space then occupied by Tenant for the period
after November 1, 1993 (other than for space occupied by persons intended to
occupy the Top Floor); provided, however, if Force Majeure has occurred, then
Landlord shall not be obligated to pay rent, but only Holdover Costs. If
Landlord has met the February 1, 1993, or October 1, 1993 Substantial Completion
dates, but because either: (a) the Low-Rise Access Date occurred less than
thirty (30) weeks before February 1, 1993 (or October 1, 1993, as the case may
be), or (b) Beneficial Occupancy did not occur at least thirty (30) days prior
to. February 1, 1993 (or October 1, 1993, as the case may be), or (c) a Landlord
Delay occurred, Tenant retained possession under Existing Leases after
expiration of the terms thereof and incurred Holdover Costs (for the reason that
Tenant was unable to move into the low-rise portion of the Initial Premises),
Landlord will be responsible for Holdover Costs of Tenant (other than for space
occupied by persons intended to occupy the Top Floor) incurred from March 1,
1993 until Tenant moves into the low-rise portion of the Premises, it being
understood and agreed that, as provided in Section 35 hereof, Tenant has no
obligation to move into the Premises other than
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in a February or October. However, Tenant shall only be entitled to such
Holdover Costs if within such thirty (30) week period or period of Beneficial
Occupancy Tenant would otherwise have completed its Tenant Work and moved into
the low-rise portion of the Premises. A statement from Tenant's architect or
contractor to the effect that Tenant could have completed its Tenant Work and so
moved in shall be conclusive, absent fraud. For purposes hereof the term
"Landlord Delay" shall mean the failure of Landlord to do any of the following:
(v) allow Tenant's contractors reasonable access to the Building or hoist in
accordance with this lease and the Access Date Specifications attached hereto as
Attachment 2, (w) provide temporary utilities to the Premises during
construction, (x) provide the proper physical environment necessary to perform
the Tenant Improvements, (y) provide permanent power to the Premises by twenty
four weeks after the Low-Rise Access Date, or the High-Rise Access Date, as the
case may be, so as to allow equipment testing prior to the move-in, and (z)
promptly inform Tenant's architect/consultant and designer of changes identified
to Landlord (presently being the entities identified as such in Schedule I to
Exhibit E) in the base building specifications and documents which would impact
on Tenant's ability to perform the Tenant Improvements. Tenant shall notify
Landlord in writing of the occurrence of a Landlord Delay.
If Substantial Completion of the low-rise portion of the Building is
not achieved by October 1, 1993, subject to extension for Extraordinary Force
Majeure, as Tenant's sole remedy for such failure (except for Landlord's
obligation to pay rent and Holdover Costs as stated aforesaid) Tenant will have
the right to terminate this lease and receive the Construction Termination
Payment. Tenant may waive the requirement that Substantial Completion of the
low-rise portion of the Building be achieved by October 1, 1993, and extend such
date to February 1, 1994, as extended by Extraordinary Force Majeure, in which
event Tenant shall have as its sole remedy for such failure (except for
Landlord's obligation to pay rent and Holdover Costs), the right to terminate
this lease and receive the Construction Termination Payment.
Notwithstanding the foregoing, if Landlord fails to meet either the
October 1, 1993 or February 1, 1994 dates (as extended as provided herein) and
at that, time Landlord provides an Informational Letter stating that Landlord
can achieve Substantial Completion of the low-rise portion of the Building
within ninety (90) days after the applicable date, as so extended (the end of
such 90-day period is herein called the "Outside Date"), and other back-up
evidence reasonably required by Tenant, then Tenant may not terminate this lease
and receive the Construction Termination Payment (and any prior termination will
be ineffective) until the Outside Date has occurred without Landlord having
achieved Substantial Completion of the low-rise portion of the Building.
Termination of this lease by Tenant shall be made, if at all, within fifteen
(15) days after the missed dates, as so extended, but in no event after
Substantial Completion of the low-rise portion of the Building. This lease will
automatically terminate if the Outside Date has occurred without Landlord having
achieved Substantial Completion of the low-rise portion of the Building,
notwithstanding that Tenant has not elected to terminate. For purposes of this
lease, such automatic termination will be Tenant's sole remedy (except for
Landlord's obligation to pay
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rent and Holdover Costs) and will have the same effect as a termination by
Tenant; in such event Tenant will also be entitled to receive the Construction
Termination Payment. Landlord agrees to immediately make such payment.
Notwithstanding anything herein to the contrary, if Substantial
Completion of the low-rise portion of the Building is not achieved by March 1,
1994 (without regard to whether Force Majeure or Extraordinary Force Majeure has
occurred), as Tenant's sole remedy for such failure (except for Landlord's
obligation to pay rent and Holdover Costs as stated herein), Tenant will have
the right (subject to Tenant's fraud) to terminate this lease and receive the
Construction Termination Payment. Landlord agrees to immediately make such
payment.
(b) If as of any date after the Outside Access Date, (i) the
Low-Rise Access Date has not occurred and (ii) less than thirty-four (34) weeks
remain prior to the Outside Date, then as Tenant's sole remedy, Tenant may,
subject to Tenant's fraud, within ten (10) days after such date, terminate this
lease and receive the Construction Termination Payment (less amounts previously
paid under Section 50(d)), unless at such date Landlord provides a letter from a
reputable and experienced contractor or construction consultant stating that
Tenant could nevertheless substantially complete its Tenant Improvements by the
Outside Date, including any back-up evidence reasonably required by Tenant, and
Landlord agrees to pay all overtime charges and other reasonable costs of
expediting the Tenant Work required to substantially complete it by the Outside
Date (and if such letter and agreement is provided, any termination will be
ineffective). Subject to fraud or manifest error, the opinion of Landlord's
consultant will be final. The "Outside Access Date" means July 1, 1993, as
extended by Force Majeure, but in no event later than August 1, 1993. Tenant may
exercise both the remedy provided for in this Section 51 and the remedy
provided for in Section 50(d), but any amounts payable under Section 50(d) and
this Section 51 will not exceed Ten Million Dollars ($10,000,000) and amounts
payable under one remedy shall be deducted against any amounts owed under the
other.
(c) If Landlord fails to achieve Substantial Completion of the
high-rise portion of the Building by July 1, 1993, then Landlord agrees to pay
Holdover Costs incurred by Tenant as a result of holdover occupancy by persons
intended to occupy the Top Floor after July 1, 1993. If Tenant has not
theretofore moved into the Top Floor, Landlord will also be responsible for
Holdover Costs of Tenant after August 1, 1993, if Landlord has met the July 1,
1993 Substantial Completion date, but because, either (a) the High-Rise Access
Date occurred less than thirty (30) weeks before July 1, 1993; or (b) Beneficial
Occupancy did not occur at least thirty (30) days prior to July 1, 1993; or (c)
a Landlord Delay occurs, Tenant retained possession under Existing Leases (as a
result of holdover occupancy by persons intended to occupy the Top Floor after
such missed date) after expiration of the terms thereof and incurred Holdover
Costs for the reason that it was unable to move into the Top Floor. However,
Tenant shall only be entitled to such Holdover Costs if within such thirty (30)
week period or period of Beneficial Occupancy Tenant would otherwise have
completed its Tenant Work and moved into the Top Floor. A statement from
Tenant's architect or contractor to the effect that Tenant could have completed
its Tenant Work and so moved in shall be conclusive, absent fraud.
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(d) Upon any termination of this lease under Section 50(c) or
Section 51, Landlord and Tenant shall be released from all liabilities and
obligations under or in connection with this lease, except that Landlord shall
be liable to make the Construction Termination Payment and rent payments
required by this Section 51 but shall have no further obligation to pay Holdover
Costs. Holdover Costs paid by Landlord shall reduce the Construction Termination
Payment, and Landlord will not have any obligation to pay Holdover Costs
exceeding Ten Million Dollars ($10,000,000) in the aggregate.
(e) Subject to the second paragraph of Section 51(a) and the second
sentence of Section 51(c), in any case where Landlord is responsible for rent or
Holdover Costs under this Section 51, such obligation shall not extend beyond
the date of Substantial Completion of the low-rise portion of the Building (in
the case of an obligation incurred due to the failure to achieve Substantial
Completion of the low-rise portion of the Building) or the high-rise portion of
the Building (in the case of an obligation incurred due to failure to achieve
Substantial Completion of the high-rise portion of the Building) or termination
of this lease, whichever is earlier. However, if Tenant does not terminate this
lease, then Landlord's obligation to pay Holdover Costs will survive, other than
for Holdover Costs attributable to Tenant's occupancy of existing space after
the date of Substantial Completion of the Building, except as stated in the
second paragraph of Section 51(a) and the second sentence of Section 51(c).
(f) Tenant will use its reasonable efforts to prevent or minimize
Holdover Costs and will cooperate with Landlord in effecting short-term
extensions, consolidating locations or coordinating move-outs to avoid
holdovers; provided, however, Tenant shall have no obligation to move into the
Premises other than in February or October or to incur any material and
unreasonable operational disruptions (it being understood and agreed for
purposes of this Section, that moving in and of itself shall not be considered
an operational disruption).
(g) The term "Holdover Costs" means any rent costs in excess of
normal rent which would have otherwise been payable for the applicable period
under the Existing Leases, direct or consequential damages provided for under
the terms of Existing Leases for holding over, costs of defense of suits by
landlords under Existing Leases and rent for any lease renewal by the landlords
as a result of the holdover permitted under the Existing Leases. If at the time
this lease is executed Tenant has waived its option under Section 2 to defer
occupancy of forty-six thousand (46,000) square feet of Rentable Area beyond the
Low-Rise Commencement Date, so that rent on such space commences on the Low-Rise
Rent Commencement Date, then for purposes of this Section 51 payment of Holdover
Costs (but not any of Landlord's obligations under Section 38), the term
"Existing Leases" shall include the 30 North Lease.
(h) upon Substantial Completion of the low-rise portion of the
Building or payment of the Construction Termination Payment to Tenant and
provided that Tenant has not terminated this lease pursuant to Sections 50 or 51
hereof, Tenant shall release to Landlord the personal guaranty and Letter of
Credit (to the extent not drawn under) described in Section 55.
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The rights granted Tenant under this Section 51 are personal to
Chicago Title and Trust Company and its Affiliates.
52. Financing Contingency. Landlord plans to meet a certain financing
milestone as follows:
By November 3. 1989, Landlord must have completed loan documentation
for financing of the construction of the Building.
Landlord has deposited cash in the amount of Five Hundred Thousand
Dollars ($500,000) (the "Deposit") in an escrow (the "Escrow") with American
National Bank and Trust Company as escrow agent (the "Escrowee") under an escrow
agreement (the "Escrow Agreement") dated January 4, 1989 and identified as
Escrow Trust No. 89539001, which Tenant has also executed. The Escrow Agreement
will not be deemed to supersede the provisions of this lease but merely to
facilitate the implementation of this Section 52. Landlord shall be entitled to
all interest on the Deposit. The Deposit is to be released to Landlord upon
satisfaction (or waiver by Landlord as described below) of the above financing
milestone and also delivery of the guaranty and a Letter of Credit substantially
in the form of Attachment 19 hereto as described in Section 55. The Deposit will
be released to Tenant from the Escrow (a) with consent of Landlord, or (b) upon
Tenant's affidavit delivered to Escrowee and Landlord that Tenant is entitled to
the payment under this Section 52 because (i) the appropriate milestone has not
been met, or (ii) the Personal Guaranty (as hereinafter defined) or the Letter
of Credit has not been delivered when required under Section 55. The failure to
meet the appropriate milestone and the failure to deliver the Personal Guaranty
or Letter of Credit are the only circumstances for which Tenant may receive and
retain the Deposit.
In any case where the financing milestone described above is not
met, Tenant and Landlord may mutually extend the date for occurrence of such
milestone. However, Landlord may waive satisfaction of the milestone for both
Landlord and Tenant in which case this lease will not automatically terminate
for failure to meet such date under any circumstances. Absent any such
extension, this lease will automatically terminate, and as Tenant's sole remedy,
it may receive and retain the Deposit as liquidated damages.
Upon termination of this lease under this Section 52, Landlord and
Tenant shall be released from all liabilities and obligations under or in
connection with this lease, except that Tenant shall be entitled to receive the
Deposit.
Tenant shall be furnished with reasonable verification regarding
compliance with the foregoing.
53. Design Approval South Tower.
(a) Tenant is hereby granted the right to approve which approval
shall be given in writing: (i) changes to the design of the Building made by
Landlord which are not within the scope of the schematic drawings attached to
this lease as Attachment 10 and renderings attached to this lease as Attachment
6 and specifications attached to this lease as Attachment 11 and the design
development drawings and specifications, if such changes directly and physically
affect
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the premises or the overall appearance or physical layout of the ground floor
lobby rotunda, (ii) the overall level of quality of design and use of materials
of the exterior wall only if and to the extent the design development drawings
and specifications do not meet the overall level of quality of design and use of
materials of the typical exterior wall for the following four (4) buildings
designed by Kohn, Pedersen, Fox & Associates (except that the schematic drawings
and specifications attached to this lease will supersede the design of the four.
comparison buildings: 000 Xxxxxxx Xxxxxx, Xxxxxx; 0000 Xxxxx Xxxxxx, Xxxxxxx
Heron Tower - 00 Xxxx 00xx Xxxxxx, Xxx Xxxx; 000 Xxxx 00xx Xxxxxx, Xxx Xxxx (One
typical exterior wall detail is attached as Attachment 16 hereto for each of
those buildings), (iii) the overall level of quality of design and use of
materials in the rotunda, and (iv) the design of the top of the Building.
Notwithstanding that drawings and renderings of the top of the Building and
exterior of the Building are attached to this lease, such drawings and
renderings should not be deemed to have been approved by Tenant as they relate
to the top of the Building or the exterior of the Building.
(b) Landlord will cause to be furnished to Tenant (through a
representative designated by Tenant and authorized to give design approvals or
disapprovals) drawings and specifications for the Building as they are developed
in order to facilitate quick approvals. When Landlord submits drawings or
specifications to Tenant for Tenant's approval, Landlord shall deliver
simultaneously therewith written notice to Tenant stating that such materials
are delivered to Tenant for Tenant's approval within five (5) business days
pursuant to this Section 54(b). Tenant shall not unreasonably withhold its
approval where its approval is required, and if Tenant does not give its
approval or disapproval within five (5) business days after submittal of
drawings or specifications including such changes or information, its approval
will be deemed given.
(c) Any disagreement as to Tenants right to approve or
reasonableness of approval which is not resolved within three (3) business days
after it arises shall be submitted for arbitration to a panel of three (3)
arbitrators who are architects at the Chicago, Illinois office of the American
Arbitration Association chosen and acting in accordance with its then commercial
arbitration rules. The arbitrators shall be instructed to reach their
determination within thirty (30) days after the appointment. Fees and costs
shall be borne by the losing party. If Tenant is the losing party, it shall be
charged with delay and increased costs caused by its disagreement and
arbitration (provided that Landlord can demonstrate that a delay was caused).
Tenant's remedy for Landlord's failure to obtain Tenant's approval of design,
where required, shall be to enforce redesign in accordance with Tenant's
approval; provided, however, that in the event such redesign causes Landlord to
miss the dates set forth in Sections 50 and 51, Landlord shall be liable as set
forth in such Sections. Tenant hereby approves the schematic drawings and
specifications attached to this lease on Attachments 10 and 11 (including
Attachment 6) and is deemed to approve any drawings and specifications which
represent further development of the attached drawings and specifications which
will be
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submitted to Tenant for informational purposes. Notwithstanding anything herein
to the contrary there shall be seven elevators servicing the low-rise portion of
the Building.
(d) If Landlord or a Linpro Affiliate owns an interest in the North
Tower ownership and is a controlling principal of the North Tower ownership,
including the right to control the design and construction of the North Tower,
at the time such design and construction is undertaken, then Landlord agrees
that the North Tower will be architecturally similar and compatible to Phase One
and the height of the North Tower will be generally as shown in the renderings
attached to this letter as part of Attachment 6. This provision shall be binding
on Landlord only so long as Chicago Title and Trust Company and/or any of its
Affiliates occupies at least one hundred fifty thousand (150,000) square feet of
Rentable Area in the Building.
54. Restrictions on Other Building Leases.
(a) So long as Chicago Title and Trust Company and/or its Affiliates
maintains a presence of at least one hundred thousand (100,900) square feet of
Rentable Area in the Building and is engaged in the title insurance business,
Landlord will not enter into any leases in the Building, whose term falls within
all or part of the Term, with a tenant if any of such tenant's business in its
premises at the Building is the conduct of the business of title insurance
(including, without limitation, underwriting title insurance, abstracting and
title searches and being a title agency), to the extent such restriction on
Landlord is lawful. This restriction shall not apply to attorneys practicing law
who are involved in the title insurance business as an adjunct to the practice
of law, so long as identification of such tenant on suite entrance door, the
Building directory and signage outside the tenant's premises does not state that
the tenant is an agent for a title insurance company or a bar fund.
(b) During the Term of this lease, Tenant will have the right to
approve uses granted to tenants under leases of retail space on the ground
floor of the Building adjacent to North Xxxxx Street or to Xxxx Xxxxxxxx Street
which do not fall within the categories of approved retail uses attached to this
lease as Attachment 12. Landlord may from time to time submit a proposed use to
Tenant, who shall approve or disapprove such use within five (5) business days,
or such use will be deemed approved. Tenant's approval may not be unreasonably
withheld. Retail uses may not include a retail tenant that specializes in the
sale of pornographic materials.
(c) Landlord will restrict the uses of ground floor lobby space in
the Building and will cause or create such restrictions in the North Tower in
the following manner for as long as Chicago Title and Trust Company itself (or a
permitted Affiliate described in Section 12-to whom the Lobby Space was
permitted to be sublet under Section 12 hereof, so long as it remains an
Affiliate) remains as a tenant in the Lobby Space and uses the Lobby Space and
uses the Lobby Space (or closes up the Lobby Space and conceals it but continues
to pay Rent for the Lobby Space), unless Tenant consents to such use:
(i) Landlord will not rent space in the lobby of the Building
to any party or allow such space to be used by
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any party who engages in the Financial Services business or who intends to
provide Financial Services from said space during the term of this lease.
For the purposes of this restriction "Financial Services" shall mean the
following businesses: banks, trust companies, savings and loans, mutual
fund companies and securities brokerage. "Financial Services" shall not
include automatic teller machines or what is commonly referred to as "cash
stations."
(ii) For the North Tower, the restriction shall be the same as
in (i) above except that said restriction shall only exist so long as
Landlord or a Linpro Affiliate owns an interest in the North Tower
ownership and is a controlling principal of the north tower ownership.
The rights granted Tenant and restrictions upon Landlord under this
Section 54 are personal to Chicago Title and Trust Company and its Affiliates.
55. Personal Guaranty; Letter of Credit.
(a) A form of guaranty of Landlord's obligation to pay the
Construction Termination Payment described in Sections 50 and 51 ("Personal
Guaranty") is attached to this lease as Attachment 14. Landlord will deliver the
Personal Guaranty and a letter of credit substantially in the form of Attachment
19 attached hereto upon satisfaction (or waiver) of all contingencies described
in Section 52 and exchange of the Five Hundred Thousand Dollar ($500,000)
deposit. Such letter of credit and any letter of credit substituted for such
letter of credit are referred to as a "Letter of Credit." The Letter of Credit
will partially secure Landlord's obligation to pay the Construction Termination
Payment described in Sections 50 and 51 and fully secure the Existing Tenant
Vacation Termination Payment described in Section 50(a).
(b) The Letter of Credit will be irrevocable, will initially be in
the face amount of Two Million Dollars ($2,000,000), will be for the benefit of
Chicago Title and Trust Company and shall be issued by a bank fulfilling and
which continues to fulfill the standards set forth in Section 55(c) below. The
Letter of Credit will not be transferable, other than to an Affiliate of Chicago
Title and Trust Company. The face amount of the Letter of Credit shall be
reduced to One Million Dollars ($1,000,000) on the Low-Rise Access Date if the
Low-Rise Access Date occurs on or before the Outside Access Date. If the
Low-Rise Access Date does not occur by July 1, 1992, then Landlord may elect (a)
to (i) waive its right to reduce the Letter of Credit on the Outside Access Date
and (ii) treat any payment of the Pre-Construction Allowance as part payment of
any Construction Termination Payment owed under Section 51, or (b) waive its
right to treat any payment of the Pre-Construction Allowance as part payment of
the Construction Termination Payment owed under Section 51. If no election is
made, Landlord will be deemed to have elected (a) above. Tenant shall be
entitled to draw under the Letter of Credit up to its face amount (and shall
present the documentation required by the Letter of Credit) only under the
conditions (x) where Tenant is entitled to receive the Construction Termination
Payment under Section 50(c) and Section 51 or Existing Tenant Vacation
Termination Payment under Section 50(a) or (y) where Landlord has failed to
extend an expiring Letter of Credit when required under this
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Section 55, and under no other circumstances whatsoever. Tenant will return the
Letter of Credit to Landlord upon the termination of this lease for any other
reason whatsoever other than as set forth in Sections 50, 51, and 55 and will
assist Landlord in reducing the face amount of the Letter of Credit or extending
the maturity as may be permitted or required hereunder.
The initial Letter of Credit shall expire no earlier than twelve (12)
months after the date this lease is executed and delivered. Landlord will cause
the Letter of Credit to be extended for additional periods of not less than
twelve (12) months (but not beyond June 15, 1994) from the latest expiry date no
later than ten (10) days prior to such expiry date by delivery to Tenant of an
amended or substitute Letter of Credit so that at all times until June 15, 1994
(or such earlier date as Landlord's obligations secured by the Letter of Credit
have been satisfied), Tenant shall hold an unexpired Letter of Credit; provided;
if due to Extraordinary Force Majeure, the Outside Date would fall beyond June
15, 1994, and Landlord avails itself of such extension, Landlord shall cause the
Letter of Credit to be extended for at least fifteen (15) days beyond the
Outside Date, Tenant will have the right to present the expiring Letter of
Credit for payment if it has not been extended by the prescribed date and Tenant
shall hold such funds in an escrow account (interest benefiting Landlord) to be
used solely for payment of Landlord's obligations for which the Letter of Credit
was given as security and shall promptly refund to Landlord funds not required
to satisfy such obligation. Notwithstanding the foregoing, Landlord shall not be
obligated to extend the Letter of Credit (and Tenant shall not be entitled to
draw under it) if at the time the extension would otherwise be required Tenant
would not have any further right under Sections 50 and 51 to receive the
Construction Termination Payment or Existing Tenant Vacation Termination
Payment.
(c) The bank issuing the Letter of Credit shall be a federally
insured bank and shall, at all times the Letter of Credit is outstanding,
fulfill the following criteria:
(i) For each of the following categories of total assets such
bank shall be rated by Xxxxx Bankwatch, a service of Xxxxx,
Xxxxxxxx & Xxxxx, Inc., no lower than the following:
Total Assets Minimum Rating
------------ --------------
$20,000,000,000 or more C
$5,000,000,000, or more, but
less than $20,000,000,000 B
(ii) Tenant shall have the right to approve, in Tenant's sole
discretion, any bank having total assets of more than
$500,000,000, but less than $5,000,000,000; and
(iii) in no event shall the bank issuing the Letter of Credit
have total assets of less than $500,000,000.
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If the bank issuing the Letter of Credit ever ceases to fulfill the above
criteria, then Tenant, upon notice to Landlord, may require Landlord, at
Landlord's sole cost and expense, to have the Letter of Credit replaced by a
letter of credit issued by a bank fulfilling the above criteria. Landlord shall
reasonably cooperate with Tenant and the bank designated by Tenant in connection
with the exchange of the replacement Letter of Credit.
56. Cooperation on Leasing Other Space. Landlord will cooperate with
Chicago Title and Trust Company and will not arbitrarily refuse to lease other
space in the Building to Chicago Title and Trust Company, to the extent such
space is available, subject to existing third party rights, at the time of
Chicago Title and Trust Company's inquiry, but the rent and other terms of the
lease need not be on the terms of the lease for other space or at market rent,
and this does not constitute an option. However, in quoting rents Landlord will
also not take unfair advantage of the fact that Chicago Title and Trust Company
has leased a significant amount of space in the Building and would prefer, for
convenience, to lease space in the Building. The rights granted Tenant under
this Section 56 are personal to Chicago Title and Trust Company and its
Affiliates described in subsections (i), (ii) and (iv) of the definition of
Affiliate in Section 12(a) hereof.
57. Landlord's Assignment Rights. Landlord from time to time under this
lease shall not have any restriction on assignment of its right, title and
interest in and to the Lease, except that prior to Substantial Completion of the
high-rise portion of the Building, Landlord may not assign this lease to any
person other than a lender (and such lender may thereafter transfer to a third
party) or permitted assignee hereafter described unless Linpro or a Linpro
Affiliate retains general day-to-day responsibility for development and
construction of the Building and primary contact with Tenant as a managing
partner, development manager or in a similar role (it being understood that
ownership or overall control of management and construction may rest in such new
Landlord). During the period prior to Substantial Completion of the high-rise
portion of the Building, except in case of a transfer to a lender (or transfer
by a lender to a third party) either Linpro or a Linpro Affiliate or a permitted
assignee will be a partner of the Development Partnership or permitted assignee
and will retain the responsibility which would be required of it had there been
no assignment. For purposes of this Section 57 a permitted assignee shall mean
(i) the Development Partnership, or (ii) any partnership, joint venture or
corporation controlled directly or indirectly by or under common control with
Linpro or a Linpro Affiliate.
Subject to the provisions of the foregoing paragraph, in the event of any
assignment, conveyance or sale, once or successively, of Landlord's interest in
the Premises or any assignment of this lease by Landlord, said Landlord making
such sale, conveyance or assignment shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord hereunder accruing after
such sale, conveyance or assignment, so long as such purchaser, grantee or
assignee assumes such covenants and obligations of Landlord hereunder. Tenant
agrees to look solely to such purchaser, grantee or assignee with respect
thereto to the extent such purchaser, grantee or assignee assumes such covenants
and obligations. This lease
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shall not be affected by any such assignment, conveyance or sale, and Tenant
agrees to attorn to the purchaser, grantee or assignee. A Mortgagee (or assignee
under an assignment in connection with a Mortgage) shall not be deemed such a
purchaser, grantee or assignee under this Section 57, unless and until the
foreclosure of any Mortgage or the conveyance or transfer of Landlord's interest
under this lease in lieu of foreclosure, and then subject to the provisions of
Section 17.
58. Delay. Landlord shall not be required to grant any consent or
approval or agree to any matter which could cause a delay in its ability to
perform, or its performance of, its obligations hereunder. Landlord agrees not
to delay Tenant by timely delivering floor plate and related information
necessary for Tenant's decisions to be made by December 8, 1989.
59. Schedule. Attached hereto as Attachment 13 is a time schedule of
various goals, events or milestones in connection with this lease. The only
obligations and remedies of the parties with respect to any of the items
referred to in Attachment 13 are as expressly stated in this lease.
60. Rights Personal to Chicago Title and Trust Company. Wherever there is
a reference in this lease to rights being personal to Chicago Title and Trust
Company or personal to Chicago Title and Trust Company and its Affiliates, such
reference shall mean that those rights may not be assigned, granted or
transferred by Tenant to any person, corporation, partnership or entity
(especially an assignee of this lease, any subtenant or any entity to whom
Landlord will be directly leasing space upon release of Tenant under Section 12)
other than an Affiliate where specifically stated herein.
61. Market Rental Rate.
(a) "Market Rental Rate" shall mean the annual rate of rent then
prevailing in the market for improved space in the Building comparable in square
footage, location and degree of improvements to the space with respect to which
such rate is being determined (to the extent that rental rates vary with respect
to area, location or degree of improvements) being leased for a duration
comparable to the period for which such space then to be leased for terms
commencing on or about the pertinent commencement date, as reasonably determined
by Landlord in the following manner. The Market Rental Rate shall be determined
by taking into consideration the rent under comparable fact situations in the
Building (based on leases signed or proposals made, but while mere proposals may
be indicated, they shall not be determinative) during the prior twelve (12)
month period or any more recent relevant period but shall assume the payment of
a commission to a broker (even though no such payment may be made by Landlord
under this lease); however, if there is not or has not been a comparable fact
situation in the Building during the previous twelve (12) month period, or if
Market Rental Rate is being determined for the purpose of the extension terms
for the Initial Office Premises, then the annual rate of rent then prevailing in
the market in comparable fact situations in comparable office buildings (based
on quality, age and location) in the central business district of Chicago.
Illinois involving arm's length leases to new tenants (not renewals) involving a
willing landlord (not acting under duress or compulsion) shall be used. Where
Market Rental Rate is being determined for
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low-rise space, comparable fact situations in the North Tower, if the North
Tower is comparable to the Building (based on quality, location and relative
age), will be used instead of the Building. Where Market Rental Rate is being
determined for high-rise space, comparable fact situations in the North Tower,
if the North Tower is comparable to the Building (based on quality, location and
relative age), shall be used before using other comparable office buildings.
Where Market Rental Rate is being determined for such extension terms,
comparable buildings will also be occupied and have at least comparable
occupancy levels. The Market Rental Rate may include, among other
then-prevailing components of rent, a fixed annual rent, rental payments based
on a share of Building real estate taxes and other expenses, periodic increases
in rent to. adjust for inflation and allowance for construction of tenant
improvements. The Market Rental Rate shall take into account any financial
concessions then being given (such as abatements, rent credits, equity interest
or percentage interest in cash flow, proceeds of sale or refinancing, lease
assumptions or payments by the landlord of tenant expenses). If the space for
which the Market Rental Rate is being determined has not been improved for
occupancy by an office tenant, the Market Rental Rate shall include the
prevailing allowances for tenant improvements and related items (or dollar
equivalency of tenant improvements then being constructed by Landlord for
tenants under its building standard workletter, if Landlord is performing
construction). Market Rental Rate shall take into account measurement of space
used in arriving at Market Rental Rate. The Market Rental Rate shall also take
into account the value of any special features of the space being leased to
Tenant in the Building such as customized or specialized improvements (including
escalators [to the extent rental rates vary with respect to such items]), tenant
identification (signage and building name [to the extent rental rates vary with
respect to such items]), floor efficiency and measurement of space for purposes
of rent calculation, and use of other areas (such as rotunda and antennas on the
roof). Where a percentage of Market Rental Rate is being used to determine rent,
the percentage shall only apply to the fixed annual rent portion of Market
Rental Rate and not any portion of such fixed annual rent or other component of
rent based on a share of Building real estate taxes or Building expenses. Rental
rates stated in this lease will not be used as evidence of Market Rental Rate.
(b) An appraisal procedure will be used to resolve disagreements on
Market Rental Rate involving more than seven thousand five hundred (7,500)
square feet for more than a two (2) year term. If Tenant disagrees with
Landlord's determination of Market Rental Rate (which Tenant must do, if at all,
in writing within seven (7) days after notice of Landlord's determination of
Market Rental Rate in which notice Tenant must state its determination of the
Market Rental Rate) then each party will select an appraiser to determine Market
Rental Rate. Each such appraiser shall make a determination of the Market Rental
Rate within ten days of his appointment. If the two determinations of Market
Rental Rate vary by less than five percent (5%) of the lower determination, then
the average appraisal shall be the Market Rental Rate. Otherwise, a third
appraiser will be appointed within twenty five (25) days after the appointment
of the first two appraisers. The third appraiser shall make his determination of
Market Rental Rate within ten (10) days of his appointment. If such third
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determination and the average of the first two determinations of Market Rental
Rate vary by less than ten percent (10%) of the lower of such third
determination and the average of the first two determinations, all three
determinations will be averaged to determine Market Rental Rate. Otherwise, the
average of the two closest determinations of Market Rental Rate shall be the
Market Rental Rate. The three appraisers shall be MAI appraisers licensed by the
State of Illinois and shall have at least ten (10) years experience in
appraising office space in downtown Chicago. The cost of the appraisals shall be
borne by the party furthest from the Market Rental Rate, except that in any case
where Market Rental Rate or a percentage of Market Rental Rate is used as a cap
on rents stated in this lease, Tenant shall bear all costs of the appraisals.
62. Landlord's Construction.
(a) Landlord agrees that the Building shall be constructed in
accordance with the schematic drawings and specifications attached hereto as
Attachments 6, 10 and 11 as developed and changed from time to time and the
components of Substantial Completion shall require construction in accordance
with those drawings and specifications upon which governmental permits were
issued. (The foregoing does not modify Tenant's approval rights as to certain
plans and specifications described in Section 53.) If there is any conflict or
variance between the schematic drawings attached hereto as Attachment 10 or the
renderings attached hereto as Attachment 6 and the specifications attached
hereto as Attachment 11, the specifications shall be deemed to govern and
control. The low-rise elevator bank of the Building shall consist of twelve (12)
floors, being floors two (2) through thirteen (13). Landlord shall use
reasonable efforts to accommodate Tenant's desires to have an additional
low-rise floor if Tenant anticipates it will be leasing such additional floor,
but Landlord's architectural and engineering needs shall govern.
(b) Landlord shall make the Initial Premises watertight fifteen (15)
weeks after the Low-Rise Access Date. All roofs and waterproofing installations
must be complete or a waterstop provided fifteen (15) weeks after the Low-Rise
Access Date.
(c) Landlord shall, at its sole cost and expense, construct
escalators as may be required under Section 41.
(d) Landlord shall, at its sole cost and expense, construct a
pedestrian tunnel connecting the Building to the State of Illinois Building on
the terms provided in Section 42.
(e) Landlord shall, at its sole cost and expense, provide sprinkler
main and foundation waterproofing for the Vault Space. Mechanical and electrical
service pursuant to specifications attached as Attachment 11 will be made
available by Landlord to Tenant at lower level III (or such other lower level to
which the Vault Space has been relocated) within thirty (30) feet of the core of
the Building.
63. Kitchen Facilities. Tenant agrees that the Kitchen Facilities shall be
operated subject to the following restrictions and conditions:
(a) Tenant shall, at its sole cost and expense, provide the
necessary exhaust fans and systems, ductwork (but Landlord shall provide, at
Landlord's cost, base building vertical duct and roof fans) and venting to
ensure that all smoke, odors, vapors and steam are exhausted from the Kitchen
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Facilities. Such systems shall be installed so as to prevent the discharge of
smoke, odors, vapors and steam into the common areas of the Building or into
spaces leased to other tenants.
(b) No exhaust vents, flues, pipes or other outlets shall be
installed through the walls, floor or ceiling of the premises or through any
portion of the Building (including but not limited to the exterior walls or the
roof of the Building) without the written consent of Landlord as to the
location, construction and appearance thereof. Landlord may require that
Tenant's exhaust system be connected to pipes, stacks, flues, vents or other
facilities located outside the Premises and intended for use by Tenant and other
food preparation facilities in the Building. In such event, Tenant shall provide
the necessary pipes, vents, ductwork and other facilities to connect Tenant's
exhaust system thereto.
(c) Tenant's exhaust or venting systems shall include fire
prevention and extinguishment facilities or systems as may be reasonably
required from time to time in view of Tenant's methods and volume of cooking and
other food and beverage preparation. This shall be in addition to any sprinkler
or other fire protection facilities installed in the Premises.
(d) Tenant shall regularly and adequately clean or provide for the
cleaning of all exhaust and venting systems serving the Premises. This cleaning
shall include degreasing of all hoods, fans, vents, pipes, flues, grease traps
and other areas of such systems subject to grease buildup. Tenant shall provide
to Landlord, upon demand, reasonable proof that Tenant is doing such cleaning
and degreasing or causing it to be done. In the event that Tenant shall refuse
or fail to clean and degrease such systems or to arrange for the cleaning and
degreasing of such systems, then Landlord may, after seven (7) days notice to
Tenant, arrange for the cleaning and degreasing thereof, and Tenant shall pay
the entire cost thereof plus a charge equal to ten percent (10%) of such cost as
an over-head and supervision fee.
(e) In the event that Tenant's exhaust or venting systems connect to
pipes, stacks, vents or other facilities located outside the Premises and used
by Tenant and other food preparation facilities in the Building, Tenant and the
other users thereof shall provide for the regular cleaning and degreasing
thereof as necessary, and Tenant and such other users shall share the cost as
agreed by Tenant and such other users. In the event that Tenant and such other
users shall refuse or fail to clean and degrease such pipes, stacks, vents or
other facilities, then Landlord may arrange for the cleaning and degreasing
thereof, and Tenant shall pay a prorata portion of the cost of such work plus a
charge equal to ten percent (10%) of such cost as an overhead and supervision
fee based on the ratio of the Rentable Area of the Kitchen Facilities to the
total Rentable Area of all kitchen premises in the Building which are connected
to such facilities.
(f) Tenant shall, at its sole cost and expense, engage professional
exterminators to service the Kitchen Facilities, including but not limited to
all food preparation and food storage areas, at such frequency and to the extent
necessary to keep the Kitchen Facilities and the Premises free of insects,
rodents, vermin and other pests and to prevent insects, rodents, vermin and
other pests from the Kitchen
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Facilities and the Premises infesting spaces leased to other tenants or the
common areas of the Building and the Land. Tenant shall provide to Landlord,
upon demand, reasonable proof that Tenant is causing such exterminating to be
regularly performed. In the event that Tenant shall refuse or fail to have such
exterminating regularly performed, then Landlord may, after seven (7) days
notice to Tenant, arrange for such work to be done, and Tenant shall pay the
entire cost thereof plus a charge equal to ten percent (10%) of such cost as an
overhead and supervision fee.
(g) Tenant shall receive the delivery of all goods and merchandise
to the Kitchen Facilities and the removal of all merchandise, supplies,
equipment, garbage and waste from the Kitchen Facilities only by way of the
loading dock, freight elevators and service corridors.
(h) Tenant shall, at its sole cost and expense, comply with local
fire safety and building code requirements and with Landlord's requirements
relating to sanitation, extermination and waste disposal.
(i) Tenant shall, at its sole cost and expense, remove all kitchen
waste from the Premises and have all such waste taken away from the Building on
a nightly basis.
64. Future Rights to Lease Vault Space.
(a) By written notice to Landlord given on or before December 8,
1989, Tenant may elect to lease the entire balance of the Vault Space on the
same floor as the Original Vault Space but not included in the Original Vault
Space, such balance being as shown on the plan attached as Exhibit F hereto
("Additional Vault Space"), but not less than the entire Additional Vault Space
for a total, including the Original Vault Space, of approximately 20,000 square
feet of Rentable Area of vault space. Base Rent for the Additional Vault Space
will be at the annual rate of Twelve Dollars ($12.00) per square foot of
Rentable Area of Additional Vault Space. No Additional Rent is payable with
respect to such Additional Vault Space. Original Vault Space and Additional
Vault Space leased on or before December 8, 1989 will be contiguous space. If
Tenant does not exercise the foregoing option to lease Additional Vault Space,
Tenant will have the option to lease up to 1,500 more square feet of Rentable
Area of Additional Vault Space contiguous to the Original Vault Space by written
notice to Landlord no later than February 1, 1991, at the rate of Twelve Dollars
($12.00) per square foot of Rentable Area of Additional Vault Space. The term of
this lease with respect to the Additional Vault Space leased under this Section
64(a) will commence on the Low-Rise Commencement Date.
(b) Landlord hereby grants to Tenant the right to lease, on the
terms and conditions hereinafter set forth, Additional Vault Space (i) at the
time when Landlord is making a serious proposal to lease such space to a
prospective tenant during the period ("Vault Offer Period") after February 1,
1991 until the expiration of the First Offer Period (defined in Section 45)
provided that during the last five (5) years of the initial Term, Tenant's
rights shall be in effect if proposals are then being made for vault space for
terms which would expire before the end of the initial Term or (ii) which is
"Available for Leasing" (as defined in Section 64(b)(ii) as it
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applies to Additional Vault Space for a term commencing on the Additional Vault
Space Commencement Date (as hereafter defined):
(i) During the Vault Offer Period Landlord shall notify Tenant
("Vault Offer Notice") on or about the time it is making a serious
proposal to a prospective tenant for a term of lease which would fall in
whole or part during the Vault Offer Period. The Vault Offer Notice shall
contain the location and Rentable Area of such portion of the Additional
Vault Space, a date for commencement of the term with respect to such
portion of the Additional Vault Space if leased by Tenant (the "Additional
Vault Space Commencement Date"), and the Market Rental Rate which it
determines for such space for a term commencing on the Additional Vault
Space Commencement Date, which shall in no event be greater than the
rental rate being offered to such prospective tenant. Rent for Additional
Vault Space leased under this Section 64(b)(i) shall be at the Market
Rental Rate (not including those elements which are not applicable to the
leasing of space of the same nature and utility as the Additional Vault
Space). The Additional Vault Space Commencement Date shall not be less
than sixty (60) days after the date such notice is given by Landlord.
Tenant's right to lease the Additional Vault Space described in the Vault
Offer Notice shall be exercisable by written notice from Tenant to
Landlord of Tenants election to exercise said right given not later than
fifteen (15) business days after the Vault Offer Notice is given. Tenant
may not elect to lease less than all of the Additional Vault Space
included in the Vault Offer Notice. Tenant's right to lease such
Additional Vault Space within the time set forth in this Section 64(a)
shall revive and Landlord shall give another Vault Notice if negotiations
with the prospective tenant have been abandoned without consummation of a
lease of Additional Vault Space and Landlord is again making a serious
proposal to lease Additional Vault Space.
(ii) After February 1, 1991 and prior to initial leasing of
Additional Vault Space, if Tenant in good faith desires to lease
Additional Vault Space which is Available for Leasing, Tenant may request
that Landlord notify Tenant of the Additional Vault Space which is then
available for leasing and the Market Rental Rate, and Landlord shall
notify Tenant ("Vault Availability Notice") within fifteen (15) days after
such request as to which Additional Vault Space is Available for Leasing
and the Market Rental Rate for Vault Space which Tenant may lease. Rent
for Additional Vault Space leased under this Section 64(b)(ii) shall be at
the Market Rental Rate (not including those elements which are not
applicable to the leasing of space of the same nature and utility as the
Additional Vault Space). Tenant may elect by notice to Landlord to lease
First Offer Space which is then available for leasing as of an Additional
Vault Space Commencement Date no earlier than ten (10) days nor later than
thirty (30) days after its notice to Landlord. Tenant shall designate the
Additional Vault Space Commencement Date in its notice. Tenant may not
elect to lease less than all contiguous Additional Vault Space then
available for leasing. A portion of the Additional Vault Space shall be
deemed to be Available for Leasing when:
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A. Negotiations by prospective tenants to lease
Additional Vault Space have been abandoned, and Landlord has not
subsequently made a serious proposal which would trigger Tenant's
right to lease Space under Section 64(b)(i); and
B. The Additional Space is vacant and there are no legal
rights to possession or rights to lease held by persons other than
Landlord.
(iii) Tenant may only exercise its right to lease Additional
Vault Space under Section 64(b) and an exercise thereof shall only be
effective, if at the time of Tenant's exercise of said right this lease is
in full force and effect and Tenant is not in Default.
(c) If Tenant has exercised its right to lease a portion of the
Additional Vault Space, then effective as of the commencement of the term of
lease of the Additional Vault Space, such portion of the Additional Vault Space
shall be included in the term "Vault Space" and in the Premises, subject to all
of the terms, conditions and provision; of this lease applicable to Vault Space
except that:
(i) Rent for Additional Vault Space leased under Section 64(a) shall
be at the rate for Base Rent stated therein; Rent for Additional Vault
Space leased under Section 64(b) shall be at Market Rental Rate (not
including those elements which are not applicable to leasing of space of
the same nature and utility as the Additional Vault Space) for similar
space;
(ii) the Rentable Area of the Vault Space shall be increased by the
Rentable Area of such portion of the Additional Vault Space;
(iii) the term of the demise covering such portion of the Additional
Vault Space shall commence on the Low-Rise Commencement Date, as to
Additional Vault Space leased under Section 64(a), and on the Space
Commencement Date, as to Additional Vault Space leased under Section
64(b), and shall expire simultaneously with the expiration or earlier
termination of the Term, including any extension or renewal thereof; and
(iv) the Additional Vault Space shall be leased in its "as is"
condition as of the First Offer Space Commencement Date, and Landlord
shall have no obligation to improve such space for Tenant's occupancy
except as set forth in Section 62(e).
(d) If Tenant has exercised its right to lease a portion of the
Additional Vault Space, within thirty (30) days after request by either party,
Landlord and Tenant shall enter into a written supplement to this lease
confirming the terms, conditions and provisions applicable to such portion of
the Additional Vault Space.
(e) In the event Landlord wilfully fails to deliver possession on
the pertinent Additional Vault Space Commencement Date of a portion of the
Additional Vault Space which Tenant has exercised its right to lease under
Section 64(b), such failure shall be deemed a default of this Lease by Landlord
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under Section 29 hereof, subject to the notice and cure provisions contained
therein. The failure of Landlord to deliver such space on account of the
hold-over by a prior tenant or occupant or on account of Force Majeure shall not
be deemed wilful.
(f) In the event any portion of the Additional Vault Space is leased
to Tenant other than pursuant to the rights granted Tenant under this Section
64, such portion of the Additional Vault Space shall thereupon be deleted from
the Additional Vault Space.
(g) Tenants rights under Section 64(b) to lease Additional Vault
Space shall be limited to Additional Vault Space in an amount not to exceed
twenty thousand (20,000) square feet of Rentable Area (when taken together with
other Vault Space leased).
65. Determination By Arbitration. In the event of the failure of the
parties to agree as to any matter which under the terms of this lease is to be
determined by arbitration (but not specifically pursuant to Sections 47 or 61(b)
hereof), such dispute shall be determined by arbitration as hereinafter
provided. Landlord and Tenant shall each appoint a fit and impartial person as
arbitrator who shall have had at least ten (10) years' experience as to the
subject matter of the dispute. Such appointment shall be signified in writing by
each party to the other. The arbitrators so appointed, in the event of their
failure to agree within ten (10) days upon the matter so submitted, shall
appoint a third arbitrator within ten (10) days after said first ten (10) day
period. In the case of the failure of such arbitrators (or the arbitrators
appointed as hereinafter provided) to agree upon a third arbitrator, such a
third arbitrator Shall be appointed by the American Arbitration Association or
its successor, from its qualified panel of arbitrators, and shall be a person
having at least ten (10) years' experience as to the subject matter in question.
In case either party shall fail to appoint an arbitrator within a period of ten
(10) days after written notice from the other party to make such appointment,
then the arbitrator appointed by the party not in default hereunder shall
appoint a second arbitrator having at least ten (10) years' experience as to the
subject matter in question. The two (2) arbitrators so appointed, in the event
of their failure to agree upon the matter so submitted within ten (10) days
thereafter, shall appoint a third arbitrator within ten (10) days.
The arbitrators shall proceed with all reasonable dispatch to determine
the question submitted. The decision of the arbitrators shall in any event be
rendered within thirty (30) days after their appointment, and such decision
shall be in writing and in duplicate, one counterpart thereof to be delivered to
each of the parties. The arbitration shall be conducted in accordance with the
rules of the American Arbitration Association (or its successor) and applicable
Illinois law, and the decision of a majority of the arbitrators shall be
binding, final and conclusive on the parties. If a majority of the arbitrators
believe that expert advice would materially assist them in the resolution of the
matter in dispute, they may retain one or more qualified persons, including but
not limited to, legal counsel, architects or engineers, to provide such expert
advice. The fees of the
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arbitrators and the expenses incident to the proceedings shall be borne equally
between Landlord and Tenant. The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for by the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.
66. Top Floor. By written notice to Landlord or before December 8, 1969,
Tenant may elect to create two story space on the Top Floor by displacing the
floor area on the above floor. In the event Tenant so elects Base Rent for the
Top Floor shall be increased by $20.00 per square foot of usable area displaced
on such above floor, such amount to be increased by $1.00 per annum per square
foot of usable area; provided, however, Tenant shall have no obligation to pay
any Taxes or Expenses allocable to the displaced area.
67. Confidentiality. Tenant agrees that the information and documentation
delivered pursuant to this Section 47 and Section 52 is proprietary and
confidential. Accordingly, Tenant agrees that it will use reasonable, good faith
efforts not to, and will direct its employees not to, disclose to any person any
knowledge gained from such information and documentation, except that Tenant may
disclose such information and documentation to its consultants, attorneys and
advisers where necessary to assist in evaluating such information and
documentation, so long as such consultants, attorneys and advisers agree not to
disclose such information and documentation or knowledge gained from it.
68. Short Form of Lease. Landlord and Tenant shall execute and record the
Short Form of Lease attached hereto as Exhibit I.
IN WITNESS WHEREOF, the parties have caused this lease to be executed as
of the date first above written.
LANDLORD:
LINPRO CHICAGO LAND LIMITED
PARTNERSHIP, an Illinois limited
partnership
BY: LINPRO CHICAGO PROPERTY I
LIMITED PARTNERSHIP an
Illinois limited partnership
By: /s/ Xxxxxxx [ILLEGIBLE]
-------------------------
A Managing General
Partner
TENANT:
CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation
BY: /s/ [ILLEGIBLE]
-----------------------------
BY: /s/ [ILLEGIBLE]
-----------------------------
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[LETTERHEAD OF CHICAGO TITLE INSURANCE COMPANY]
October 31, 1989
Linpro Chicago Land Limited Partnership
[ILLEGIBLE]5 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Re: Lease Between Linpro Chicago Land Limited Partnership, an Illinois
limited partnership ("Landlord"), and Chicago Title and Trust
Company, an Illinois corporation ("Tenant"), dated July 24, 1989
(the "Lease")
Xx. Xxxxxx:
Reference is made to the above captioned Lease. Pursuant to your request
to extend the financing milestone date set forth at Section 52 of the Lease,
this letter will serve to evidence the following modification to the Lease.
The reference to November 3, 1989 as the financing milestone date in
Section 52, Attachment 13 and elsewhere in the Lease are hereby modified to be
references to December 1, 1989.
In all other respects the Lease remains in full force and effect, as
modified and amended hereby.
Please indicate your agreement to the foregoing by signing the duplicate
copy of this letter and returning it to the undersigned.
Chicago Title and Trust Company
By: /s/ [ILLEGIBLE]
------------------------------
Agreed and Accepted this 1st day
of November, 1989
Linpro Chicago Land Limited Partnership
By: Linpro Chicago Property I
Limited Partnership
By: /s/ [ILLEGIBLE]
-----------------------------------
a managing general partner
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FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "Amendment") dated as of
November 17, 1989, by and between 000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord"), and CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation ("Tenant").
RECITALS:
1. Linpro Chicago Land Limited Partnership ("Linpro Land") and Tenant
heretofore entered into that certain Lease (the "lease") dated as of July 24,
1989, by and between Landlord and Tenant and covering approximately 248,000
square feet of Rentable Area in the Building.
2. Landlord has succeeded to the interest of Linpro Land under the Lease.
3. All words or terms with their initial letters capitalized in this
Amendment which are not defined in this Amendment will have the same meanings as
are ascribed to such words or terms in the lease.
4. Landlord and Tenant now desire to emend the lease in the manner
hereinafter set forth.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the covenants and
agreements contained in this Amendment and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows:
ARTICLE I
AMENDMENTS TO LEASE
1.01 Definitions. As used in this Amendment and in the lease, the
following terms shall have the meanings set forth below:
119
(a) Accumulated Capital Base. The total from time to time of a
Partner's Equity Contributions and any portion of such Partner's Preference
Return added to the Partner's Accumulated Capital Base pursuant to section 4.03
of the Partnership Agreement, as such total is from time to time reduced by
distributions of Net Cash Flow, pursuant to section 4.02(b)(ii) of the
Partnership Agreement, and Financing Funds and Sale Proceeds, pursuant to
section 4.04(b)(ii) of the Partnership Agreement.
(a-l) Affiliates. As to Linpro or any Partner which is a Linpro
Affiliate (as defined in section 47(d) below), a Linpro Affiliate; as to other
Partners, an "affiliate" (as defined in the Partnership Agreement).
(b) Annual Plan. As defined in section 8.02(a) of the Partnership
Agreement.
(c) Capital Debt. As defined in section 3.08(a) of the Partnership
Agreement.
(c-l) Capital Funds Chicago Title Participation Amount. As defined
in Section 1.01(g) on this Amendment.
(c-2) Capital Funds TLC Participation Amount. As defined in Section
1.01 (11) of this Amendment.
(d) Capital Preference Return. A preference return on Equity
Contributions made by the Investors equal to the positive difference, if any,
obtained by subtracting (i) the compounded value at 12% per annum of all
distributions made to the Investors (whether out of Net Cash Flow or out of
Financing Funds or Sale Proceeds (after taking into account any forfeiture and
transfer of a Squeezed Interest)] prior to the date of the calculation of such
preference return from (ii) the compounded value at 12% per annum of all Equity
Contributions made by the Investors from the dates contributed to the date of
the calculation of such preference return.
(e) Cash Flow. The excess of (i) all cash receipts of the
Partnership, other than (A) contributions (including Equity Contributions) and
loans by the Partners to the Partnership, (B) Financing Funds and Sale Proceeds,
and (C) amounts of cash equal to the cash reductions and exclusions to be made
as provided in Sections 1.01(n) and 1.01(hh) of this Amendment in computing
Financing Funds and Sale Proceeds, over (ii) the total of (A) cash expenditures
of the Partnership [but to the extent that such expenditures represent payments
to a Partner or an Affiliate (as defined in the Partnership Agreement) of a
Partner the amount of such deductions will be limited to amounts which would be
paid to parties which are not Affiliates of a Partner for similar goods or
services and, to the extent not paid by tenants of the Property, any monthly
property management fee payable to an Affiliate of
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Linpro may not exceed a then-current market rate for such fee at the time of
the entry into the applicable management agreement with an Affiliate of Linpro],
including, without limitation, installments of interest on and principal of
loans to the Partnership, the proceeds of which were used to pay, costs and
expenses incurred in connection with the ownership and operation of the Property
or were distributed in accordance with the provisions of Section 4.04 of the
Partnership Agreement, whether or not secured by mortgages on the Property or
any part thereof or interest therein, as such installments fall due but
excluding (1) amounts referred to in Section 1.01(e)(i)(c) of this Amendment,
and (2) amounts distributed pursuant to section 4.02(a) or 4.04(a) of the
Partnership Agreement, (B) reserves and capital expenditures provided for by the
Annual Plan at the time in effect (or otherwise jointly approved by Linpro and
the Company) and (C) expenditures authorized by sections 8.02(a)(x) and (y) of
the Partnership Agreement. Any cash receipts of the Partnership from the
ownership and operation of the Property which are placed in a reserve or are
otherwise excluded from Cash Flow in order to pay expected future obligations of
the Partnership, but which are not required to pay any such obligations, will be
deemed to be Cash Flow when the General Partners determine that such receipts
are no longer required to pay such obligations.
(f) Chicago Title Participation Percent. The product of twenty-five
percent (25%) and a fraction whose numerator is the Rentable Area of the Initial
Office Premises and whose denominator is the total Rentable Area of the
Building; provided, however, that such product will be reduced to zero,
effective as of the date that the entire interest of Linpro in the Partnership
has been sold, transferred, forfeited or assigned (whether pursuant to (A) an
arms length transaction between Linpro and a third party (which third party
shall include, if the entire interest of Linpro in the Partnership is sold,
transferred, forfeited or assigned pursuant to an arms length transaction, the
Investors exercising (i) any right of first offer pursuant to section 10.04(c)
of the Partnership Agreement, (ii) any right of first opportunity pursuant to
sections 10.06 and 10.07 of the Partnership Agreement and (iii) any purchase
right pursuant to section l0.02(a)(iv) of the Partnership Agreement, (B) a
forfeiture and transfer described in sections 3.03(b), 3.03(c) or 3.06(a) of the
Partnership Agreement, (C) a transfer described in Article XI of the Partnership
Agreement or (D) a foreclosure, affecting the entire interest of Linpro in the
Partnership, by any of the Investors holding a security interest in such
Partnership interest in connection with a Special Partner Loan made by such
Investors to Linpro) and all payments (including cash and distributions of
property) of the Chicago Title Participation Amounts, if any, have been paid to
Tenant in connection with such transaction. Notwithstanding the foregoing, the
Chicago Title Participation Amounts will not be reduced by a voluntary
non-arms length transfer or by a foreclosure of a security interest in the
interest of Linpro in the Partnership (except as expressly provided in the
immediately preceding sentence).
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(g) Chicago Title Participation Amounts. The amounts payable by
Landlord to Tenant pursuant to Section 47 of the lease; which amounts will be as
follows: (A) the product (the "Net Cash Flow Chicago Title Participation
Amount") of the Chicago Title Participation Percent multiplied by the Net Cash
Flow remaining after the distributions to the Partners pursuant to sections
4.02(b)(i) and (ii) of the Partnership Agreement; (B) the product (the "Capital
Funds Chicago Title Participation Amount") of the Chicago Title Participation
Percent multiplied by Financing Funds and Sale Proceeds remaining after the
distributions to the Partners pursuant to sections 4.04(b)(i), (ii)and (iii) of
the Partnership Agreement; and (C) the product (the "Linpro Capital Funds
Chicago Title Participation Amount") of the Chicago Title Participation Percent
multiplied by Financing Funds and/or Sale Proceeds distributable to Linpro
pursuant to section 4.04(b)(iii) of the Partnership Agreement (after taking into
account any forfeiture and transfer of a Squeezed Interest).
(h) Chicago Title Participation Right. As defined in Section 47(a)
of the lease.
(i) Company. Xxxxx Street General Corporation B.V.; such term will
include anyone who is substituted for Xxxxx Street General Corporation B.V. as a
General Partner in accordance with the terms of the Partnership Agreement.
(j) Development Plan. As defined in section 1.05 of the Partnership
Agreement.
(k) Equity Contributions. Cash contributed to the Partnership by (i)
an Investor pursuant to sections 3.03(a) and 3.03(c) of the Partnership
Agreement and (ii) Linpro pursuant to sections 3.03(b) and 3.03(c) of the
Partnership Agreement.
(l) (Intentionally deleted].
(m) Financing. Any borrowing by the Partnership, other than a
Special Partner Loan, a Partner Overruns Loan, Capital Debt or any other loan by
one or more Partners to the Partnership.
(n) Financing Funds. The proceeds realized by the Partnership in any
Financing after being reduced by (i) payments, repayments or other- retirements
of previously existing debt obligations of the Partnership made with such funds,
(ii) proceeds required to pay construction costs and to meet other reasonable
requirements of the Partnership, including payment of operating expenses of the
Partnership (to the extent not paid out of operating revenues) and the cost of
carrying out the Development Plan, and (iii) all costs incurred by the
Partnership in such Financing (but to the extent that the amounts in clauses
(i), (ii) and (iii) represent payments to a Partner or an Affiliate of a
Partner, the amount of such deductions will be limited to amounts
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which would be paid to parties which are not Affiliates of a Partner for similar
goods or services or which represent the repayment of loans containing
market-rate terms at the time made to the Partnership (except that any Partner
Overruns Loan shall bear interest and contain the other terms set forth in
section 3.05 of the Partnership Agreement), the proceeds of which were used to
pay costs and expenses incurred in connection with the ownership and operation
of the Property or were distributed in accordance with the provisions of section
4.04 of the Partnership Agreement]. Any proceeds realized by the Partnership in
any Financing which are placed in a reserve or are otherwise excluded from
Financing Funds in order to pay expected future obligations of the Partnership,
but which are not required to pay any such obligations, will be deemed to be
Financing Funds when the General Partners determine that such proceeds are no
longer required to pay such obligations.
(o) General Partner. A general partner in the Partnership.
(p) Investors. The Company, Limited One, Limited Two and Limited
Three.
(q) Limited One. Xxxxx Street Investor One Corporation B.V. and its
successors; such term will include anyone who is substituted for Xxxxx Street
Investor One Corporation B.V. as a Limited Partner in accordance with the terms
of the Partnership Agreement.
(r) Limited Partner. A limited partner in the Partnership.
(s) Limited Three. Xxxxx Street Investor Three Corporation B.V. and
its successors; such term will include anyone who is substituted for Xxxxx
Street Investor Three Corporation B.V. as a Limited Partner in accordance with
the terms of the Partnership Agreement.
(t) Limited Two. Xxxxx Street Investor Two Corporation B.V. and its
successors; such terms will include anyone who is substituted for Xxxxx Street
Investor Two Corporation B.V. as a Limited Partner in accordance with the terms
of the Partnership Agreement.
(u) Linpro. Linpro Chicago Property I Limited Partnership and its
successors, but not its assigns.
(v) Linpro Capital Funds Chicago Title Participation Amount. As
defined in Section 1.01(g) of this Amendment.
(w) [Intentionally deleted].
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(x) Net Cash Flow. The excess, if any, of Cash Flow over the amounts
payable pursuant to section 4.02(a) of the Partnership Agreement.
(x-l) Net Cash Flow Chicago Title Participation Amount. As defined
in Section 1.01(g) of this Amendment.
(x-2) Net Cash Flow TLC Participation Amount. As defined in Section
1.01(11) of this Amendment.
(y) Partner. A General Partner or a Limited Partner in the
Partnership.
(z) Partner Overruns Loans. As defined in section 3.05(b) of the
Partnership Agreement.
(aa) Partnership. 000 Xxxxx Xxxxx Xxxxxx Limited Partnership, a
limited partnership formed under the laws of the State of Delaware, and its
successors and assigns.
(bb) Partnership Agreement. The Limited Partnership Agreement dated
November 17, 1989, among Linpro, the Company, Limited One, Limited Two and
Limited Three, pursuant to which Landlord is being formed under the Delaware
Revised Uniform Limited Partnership Act.
(cc) Partner's Interest in the Partnership. As to Linpro, 50%, and
as to the Investors, 50%, as such interests may be adjusted in accordance with
the provisions of sections 3.03(a), 3.03(c) and 3.06(a) of the Partnership
Agreement.
(dd) Preference Return. In the case of Partners, a preference return
on the respective Accumulated Capital Bases of the Partners computed at a rate
of 7.72% per annum, compounded monthly to equal an annual rate of 8.0%; and in
the case of Tenant, a preference return on the Tenant Advances remaining unpaid
from time to time computed at a rate of 7.72% per annum, compounded monthly to
equal an annual rate of 8% (such monthly compounding will be effected on the
last day of each calendar month in arrears).
(ee) Property.. As defined in section 1.05 of the Partnership
Agreement.
(ff) Proportionate Share. With respect to any dollar amount as to a
Partner, the amount obtained by multiplying such dollar amount by such Partner's
interest in the Partnership expressed as a percentage.
(gg) Sale. A voluntary or involuntary sale of all or any substantial
part of the Partnership's assets.
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(hh) Sale Proceeds. The sum of the aggregate proceeds (including
cash and the fair market value of debt obligations and other securities and
property but excluding any other existing debt subject to which the Sale was
made and expenses of realization of such proceeds) received by the Partnership
(i) as the consideration for any Sale, and (ii) as the net amount of insurance
(including title insurance) proceeds or other compensation and condemnation
awards, to the extent that (A) such sum is in excess of funds used (1) for
repairs or restoration or (2) to retire previously existing debt of the
Partnership, the proceeds of which were (x) used to pay costs and expenses
incurred in connection with the ownership and operation of the Property or (y)
distributed in accordance with the provisions of section 4.04 of the Partnership
Agreement or (3) to pay operating expenses of the Partnership (to the extent not
paid out of operating revenues) (but to the extent that the amounts in clauses
(1), (2) and (3) represent payments to a Partner or an Affiliate of a Partner,
the amounts to be offset therefor will be limited to amounts which would be paid
to parties which are not Affiliates of a Partner for similar goods or services
or. which represent the repayment of loans containing market-rate terms at the
time made to the Partnership (except that any Partner Overruns Loan shall bear
interest and contain the other terms set forth in section 3.05 of the
Partnership Agreement), the proceeds of which were used to pay costs and
expenses incurred in connection with the ownership and operation of the Property
or were distributed in accordance with the provisions of section 4.04 of the
Partnership Agreement], and (B) such proceeds are available for distribution.
Any proceeds realized by the Partnership in any Sale which are placed in a
reserve or are otherwise excluded from Sale Proceeds in order to pay expected
future obligations of the Partnership, but which are not required to pay any
such obligations, will be deemed to be Sale Proceeds when the General Partners
determine that such proceeds are no longer required to pay such obligations.
(hh-l) Site. As defined in section 1.05 of the Partnership Agreement
and being more particularly described in Exhibit A attached hereto and made a
part hereof.
(ii) Special Partner Loan. As defined in Section 3.06(a) of the
Partnership Agreement.
(jj) Squeezed Interest. Any interest, calculated as provided in
Exhibit F attached to the Partnership Agreement, of a Partner in the Partnership
forfeited and transferred over to one or more other Partners pursuant to
sections 3.03(a) or Cc) or section 3.06(a) of the Partnership Agreement.
(kk) TLC. Transportation Leasing Co. (formerly Greyhound Lines,
Inc.) or its successors.
(ll) TLC Participation Amounts. The amounts payable to TLC under
that certain Development Participation Agreement, dated
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December 31, 1986, between Linpro Chicago Land Limited Partnership (to whose
interest therein Landlord has succeeded) and Greyhound Lines, Inc. (now TLC), as
amended by First Amendment to Development Participation Agreement, dated as of
November 17, 1989. between Landlord and TLC (such Development Participation
Agreement, as so amended, being hereinafter referred to as the "TLC
Participation Agreement"); which amounts shall be as follows: CA) the product
(the "Net Cash Flow TLC Participation Amount") of 12-1/2% multiplied by Net
Cash Flow remaining after the distributions to the Partners pursuant to sections
4.02(b)(i) and (ii) of the Partnership Agreement; and (B) the product (the
"Capital Funds TLC Participation Amount") of 12-1/2% multiplied by Financing
Funds and Sale Proceeds remaining after the distributions to the Partners
pursuant to sections 4.04(b)(i), (ii) and (iii) of the Partnership Agreement.
(mm) Tenant Advances As defined in Section 47(b) of the lease.
1.02 Section 47 Amendment to Lease. Section 47 of the lease is hereby
deleted from the lease in its entirety and there is hereby substituted therefore
a new Section 47 which shall read in its entirety as follows:
"47. Participation in Net Cash Flow, Financing Funds and Sale Proceeds.
(a) Chicago Title Participation Amounts. Tenant is hereby granted the
contractual right (the "Chicago Title Participation Right") to receive
from Landlord the Chicago Title Participation Amounts and Landlord hereby
agrees to pay the Chicago Title Participation Amounts as follows:
(i) Operating Revenues.
(A) Cash Flow, to the extent available, will be distributed by
Landlord, first, in payment of principal of, and then accrued
and unpaid interest on, Special Partner Loans, in proportion
to the principal amounts thereof held by the respective
Partners; and second, in payment of principal of, and then
accrued and unpaid interest on, Partner Overruns Loans, in
proportion to the principal amounts thereof held by the
respective Partners.
(B) Net Cash Flow will be distributed by Landlord to the
extent available in the following order:
(l) First: To the Partners in the amount of the
Partners' Preference Return and to Tenant in the amount
of Tenant's Preference Return.
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(2) Second: To the Investors in the amount by which the
Investors' aggregate Accumulated Capital Bases exceed
$60,000,000; to Linpro in the amount by which Linpro's
Accumulated Capital Base exceeds the aggregate amount of
Linpro's Equity Contributions pursuant to section
3.03(b) of the Partnership Agreement; and to Tenant in
an amount sufficient to reduce the unrepaid Tenant
Advances to zero.
(3) Third: To TLC in the Net Cash Flow TLC Participation
Amount and to Tenant in the Net Cash Flow Chicago Title
Participation Amount.
(4) Finally: The balance of Net Cash Flow remaining
after the distributions pursuant to sections 4.02(b)(i),
(ii) and (iii) of the Partnership Agreement, to Linpro
in an amount equal to Linpro's Proportionate Share of
such balance (after taking into account any forfeiture
and transfer of a Squeezed Interest) and to the
Investors in an aggregate amount equal to the Investors'
Proportionate Shares of such balance (after taking into
account any forfeiture and transfer of a Squeezed
Interest).
If the distributions of Net Cash Flow are not sufficient to satisfy
the aggregate amounts required pursuant to Section 47(a)(i)(B)(l)
and/or (2), Net Cash Flow shall be distributed at each level in the
ratio that the aggregate amount at that level which would otherwise
be payable to each party bears to the aggregate amounts at that
level which would otherwise be payable to all parties.
(ii) Financing Funds and Sale Proceeds. Financing Funds or Sale
Proceeds will be distributed on a cumulative basis in the following
order:
(A) First, any debts (containing market-rate, terms at the
time made to the Partnership), the proceeds of which were (i)
used to pay costs and expenses incurred in connection with the
ownership and operation of the Property or (ii) distributed in
accordance with the, provisions of section 4.04 of the
Partnership Agreement, and which are secured by liens or
security interests required to be discharged in connection
with the realization of such proceeds, will be paid; second,
Special Partner Loans will be paid, first as to principal and
then as to accrued and unpaid interest, in proportion to the
principal amounts thereof held by the respective Partners; and
third, in payment of the principal of, and then
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accrued and unpaid interest on, Partner Overruns Loans, in
proportion to the principal amounts thereof held by the
respective Partners.
(B) Any remaining proceeds from a Financing or a Sale will be
distributed as follows:
(1) First: To the Partners in the amount of the
Partners' then-current unpaid Preference Return and to
Tenant in the amount of Tenant's then-current unpaid
Preference Return on Tenant Advances remaining unrepaid
from time to time for the fiscal year or fraction
thereof of the Partnership elapsed to the date of such
transaction.
(2) Second:To the Partners in an amount sufficient to
reduce the aggregate Accumulated Capital Bases to zero,
and to Tenant, in an amount sufficient to reduce the
unrepaid Tenant Advances to zero.
(3) Third: Until the Investors have received the Capital
Preference Return, from all sources other than payments
in respect of Partner Overruns Loans and Special Partner
Loans, 70% to the Investors and 30% to be paid in the
following order: (a) to Chicago Title in the amount of
the Linpro Capital Funds Chicago Title Participation
Amount, and (b) the balance to TLC and Linpro in such
proportions as they shall approve; provided, however,
that (i) if the Investors have acquired a Squeezed
Interest, then the figure "70%" contained above in this
clause (3) will be increased, and the figure "30%"
contained above in this clause (3) shall be decreased,
by an amount expressed as a percentage equal to the
product of 30% and the quotient of the Squeezed Interest
(expressed as a percentage) divided by 50% and (ii) if
Linpro has acquired a Squeezed Interest, then the figure
"30%" contained above in this clause (3) will be
increased, and the figure "70%" contained above in this
clause (3) will be decreased, by an amount expressed as
a percentage equal to the product of 70% and the
quotient of the Squeezed Interest (expressed as a
percentage) divided by 50%.
(4) Fourth: To TLC in the amount of the Capital Funds
TLC Participation Amount and to Tenant in the amount of
the Capital Funds Chicago Title Participation Amount.
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(5) Finally: The balance of Financing Funds or Sale
Proceeds remaining after the distributions pursuant to
sections 4.04(b)(i), (ii), (iii) and (iv) of the
Partnership Agreement, to Linpro in an amount equal to
Linpro's Proportionate Share of such balance (after
taking into account any forfeiture and transfer of a
Squeezed Interest) and to the Investors in an aggregate
amount equal to the Investors' Proportionate Shares of
such balance (after taking into account any forfeiture
and transfer of a Squeezed Interest).
If the distributions of Sale Proceeds and/or Financing Funds are not
sufficient to satisfy the aggregate amounts required pursuant to
Section 47(a)(ii)(B)(l) and/or (2), the Sale Proceeds and/or
Financing Funds shall be distributed at each level in the ratio that
the aggregate amount at that level which would otherwise be payable
to each party bears to the aggregate amounts at that, level which
would otherwise be payable to all parties.
(b) Tenant Advances. Except as otherwise provided in this Section 47(b),
Tenant will pay cash to Landlord if and when and at such times as the
Partners are required to make Post-Development Equity Contributions to
Landlord pursuant to section 3.03(c) of the Partnership Agreement. The
amount of cash required to be paid by Tenant ("Tenant Advance") with
respect to each such Post-Development Equity Contribution to be made by
the Partners to Landlord will be an amount equal to the product of (i) the
Chicago Title Participation Percent at the time in question and (ii) the
aggregate amount of the Post-Development Equity Contributions then
required to be made by the Partners to Landlord; provided, however, that
Tenant's obligation to make a Tenant Advance pursuant to this Section
47(b) will be limited to an aggregate amount equal. to the excess, if any,
of (A) the aggregate Chicago Title Participation Amounts paid pursuant to
Section 47(a) hereof through the date such payment is required to be made
by Tenant to Landlord, over (B) the aggregate amount of Tenant Advances
previously made by Tenant to Landlord pursuant to this -Section 47(b). Any
Tenant Advances will be deemed a Post-Development Equity Contribution made
by the Partners under the Partnership Agreement in proportion to the
Partners' interests in the Partnership at the time of such Tenant
Advances, and Tenant will be entitled to receive proportionately the
Preference Return on, and repayment of, the Tenant Advances at the same
time and in the same manner as the Partners are entitled to receive the
Preference Return on, and repayment of, the Partners' Post-Development
Equity Contributions under the Partnership Agreement. Notwithstanding the
foregoing, if either (i) the amount of the Tenant Advance in question,
aggregated with the amount of all other Tenant
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Advances made and not returned, exceeds the maximum amount of the Tenant
Advance which Tenant is obligated to make to the Partnership under the
second sentence of this Section 47(b) or (ii) the amount of the Tenant
Advance in question, aggregated with the amount of all other Tenant
Advances made and not returned, exceeds the aggregate Net Cash Flow
Chicago Title Participation Amount which Tenant has theretofore received
under Section 47(a)(i)(B)(3) hereof (in the case of either clause (i) or
clause (ii), such excess referred to as the "Excess Amount"; if such
excess exists under both clause (i) and clause (ii), then the "Excess
Amount" shall be the greater of the excess calculated under clause (i) and
the excess calculated under clause (ii)), then Tenant may, at its
election, elect not to advance the Excess Amount, in which case the amount
which would otherwise have been advanced by Tenant shall be advanced by
the Partners as an Equity Contribution under the Partnership Agreement and
repaid to the Partners in accordance with Section 47(a) hereof.
(c) Statements and Reports. Tenant will be furnished with a copy of the
Partnership Agreement (and all amendments and modifications thereto) and
will be furnished with annual financial statements for Landlord,
consisting of an annual balance sheet and profit and loss statement,
certified by the certified public accountant for Landlord (which shall be
a major public accounting firm) within 120 days after the close of each
calendar year and on a quarterly basis, a statement of Net Cash Flow and a
leasing status report containing the names of tenants in the Project and
the number of square feet covered by their respective leases. No later
than October 30 of each calendar year commencing on or after January 1,
1992, Landlord will furnish Tenant with a statement of projected Net Cash
Flow for the next calendar year and periodically will furnish Tenant with
any other material information necessary to accurately calculate, evaluate
and determine the Chicago Title Participation Amounts. Tenant will also be
furnished with copies of the note, mortgage, loan agreement and any other
material loan and/or equity documentation pertaining to the Chicago Title
Participation Amounts, Tenant's operation and/or the construction of the
Building.
(d) Sale of Linpro's Partnership Interest. If Linpro sells all or part of
its partnership interest in Landlord to an entity other than a Linpro
Affiliate (as defined below), Linpro will cause Tenant to receive a
portion of the proceeds of sale generated thereby based upon the Chicago
Title Participation Amounts as if its interest were a partnership interest
in Landlord being sold at the same time and, the same ratio of dollars to
partnership interest as received by Linpro, and Tenant `s interest will be
reduced in the same ratio as the interest of Linpro being sold bears to
the total interest of Linpro prior to such sale. For purposes of this
Section 47(d)
-12-
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and Section 47(h), the sale of a partnership interest in Landlord will
include any transfer pursuant to a right of first offer or buy-sell or
squeeze down (including the forfeiture and transfer of a Squeezed
Interest), but will exclude the realization upon a security interest in a
partnership interest and a voluntary non-arms length transfer. Linpro
agrees to deliver written notice to Tenant promptly following the
consummation of any sale of a partnership interest by Linpro if Tenant is
entitled to participate in the proceeds from the sale of such partnership
interest under this Section 47(d). Landlord shall cause copies of all of
the notices to be delivered to any of the Partners in connection with a
buy-sell exercise, or a call for Equity Contributions which could lead to
a squeeze down of Linpro to zero, to be delivered to Tenant as promptly as
practicable after the delivery of any such notice to any of the Partners;
provided, however, that (a) any non-delivery of such a copy to Tenant
shall not be an Event of Default or a default under this lease and shall
not impair or affect the validity or enforceability of the buy-sell
exercise or the squeeze down in accordance with the Partnership Agreement
and (b) Tenant hereby waives any right to challenge (whether by
commencing, pursuing and/or participating in any action at law or in
equity) the complete execution of the buy-sell exercise or squeeze down in
accordance with the Partnership Agreement and the Tenant covenants and
agrees not to take any action which would interfere with or impede such
execution of the buy-sell exercise or squeeze down in accordance with the
Partnership Agreement. For purposes of this Section 47, "Linpro's
partnership interest in Landlord" means the. aggregate interests held by
Linpro or a Linpro Affiliate and the partners of Linpro or a Linpro
Affiliate in Landlord pursuant to the Partnership Agreement, as
reorganized and reconfigured from time to-time. As used in this lease, the
term "Linpro Affiliate" means (A) any entity comprised of (i) persons
(including their family members) who- operate as partners or employees of
the group of entities identified by the name "The Linpro Company", and/or
(ii) entities comprised of such persons and which entities hold themselves
out and effectively operate . as part of the group of entities so
identified and (B) any of the persons described as clause A(i) of this
sentence.
(e) Termination and Vesting of Chicago Title Participation Right. The
Chicago Title Participation Right will serve as security for Tenant's
performance of its obligations under this lease. Because the Chicago Title
Participation Right is being granted to Tenant in consideration of its
faithful performance of its lease obligations and continuation as a tenant
for the entire Term, if there is a Default under this lease (after the
expiration of all notice and cure periods) or if this lease is cancelled
by Tenant prior to the scheduled completion of the Building, the Chicago
Title Participation Right will terminate,
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be valued at zero (O) and be of no further force and effect (and this
Section 47 of the lease shall thereupon be deemed deleted from the lease);
except that if, after that date which is the earlier to occur of (i) the
date on which ninety percent (90%) of the Rentable Area of the Building is
leased to tenants (including Tenant) who are in occupancy and paying rent,
and (ii). five (5) years after substantial completion of the Building, a
Default occurs, Landlord may, at its sole option, CA) purchase the Chicago
Title Participation Right for a purchase price equal to the aggregate
amounts which Tenant would receive under Section 47(a)(ii)(B) of this
lease if the Building were sold for its market value (as determined in
accordance with the provisions of Section 47(j) of this lease] on the date
of the occurrence of the Default; or (B) allow the Chicago Title
Participation Right to continue in existence notwithstanding the Default,
in which event the Chicago Title Participation Amounts will be paid
thereafter in the manner and priority set forth in this lease. For
purposes of this subsection (e), any non-monetary default disputed by
Tenant will not be deemed a Default permitting the termination of the
Chicago Title Participation Right until a court of competent jurisdiction
has resolved in favor of Landlord the dispute with respect to whether a
non-monetary default by Tenant has occurred under this lease. The Chicago
Title Participation Right shall terminate upon the acquisition of the
Property pursuant to foreclosure or deed in lieu of foreclosure, by a
party (other than a Partner or an Affiliate of a Partner) which has made a
loan secured by a lien on the Property.
(f) Option to Purchase Chicago Title Participation Right. Landlord is
hereby granted an option to purchase the Chicago Title Participation Right
for a purchase price determined as set forth in Section 47(j) under the
following circumstances: (i) in the event of the exercise by Tenant of the
right to terminate the lease pursuant to Section 50(c); (ii) in the event
Chicago Title and Trust Company or an Affiliate elects to transfer its
interest to a third party or an Affiliate described in subsection (iii) of
the definition of Affiliate in Section 12(a) hereof in accordance with
Section 47(g) hereof; or (iii) if the Chicago Title Participation Right is
ever held by an Affiliate, then at the time such Affiliate no longer
qualifies as an "Affiliate" unless the Chicago Title Participation Right
is reconveyed to Chicago Title and Trust Company or to an Affiliate
permitted under Section 47(g) hereof; or (iv) in the event of a bankruptcy
of Tenant where Tenant is not otherwise in Default. Upon a purchase of the
Chicago Title Participation Right by Landlord, the Chicago Title
Participation Right will terminate and this Section 47 of the lease shall
thereupon be deemed deleted from the lease.
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132
(g) Exercise of Option to Purchase Chicago Title Participation Right.
Landlord must elect to exercise its purchase option in any particular case
within forty-five (45) days after the right accrues; provided, however, if
Landlord is exercising its right on account of any reason other than a
transfer of the Chicago Title Participation Right to a third party or an
Affiliate described in subsection (iii) of the definition of Affiliate in
Section l2(a) hereof, such exercise may be revoked in writing within ten
(10) days after the market value of the Building is determined in
accordance with Section 47(j) hereof. In the event Landlord fails to
timely notify Tenant of its revocation, Landlord will be deemed to have
waived its right to revoke its exercise. Chicago Title and Trust Company
may transfer the Chicago Title Participation Right `to a third party or an
Affiliate described in subsection (iii) of the definition of Affiliate in
Section 12(a) hereof, subject to Landlord's purchase right, for a purchase
price determined in accordance with Section 47(j) hereof and the approval
right as to the character and financial stability of the transferee, such
approval not to be unreasonably withheld; or if the Chicago Title
Participation Right is ever held by an Affiliate, then such approval right
will also apply at the time such Affiliate no longer qualifies as an
"Affiliate" unless the Chicago Title Participation Right is reconveyed to
Chicago Title and Trust Company or to an Affiliate permitted under this
Section 47(g). The tests of character and financial stability should be
similar to those contained in Section 12 hereof. The offer of any third
party offeree will be taken into account when determining the purchase
price for the Chicago Title Participation Right. Notwithstanding anything
to the contrary contained herein, Chicago Title and Trust Company may
transfer the Chicago Title Participation Right to an Affiliate described
in subsections (i), (ii), or (iv) of the definition of Affiliate in
Section 12(a) hereof. Tenant will have the right to grant a security
interest in and to the Chicago Title Participation Right as collateral for
financing subject to the rights of Landlord under this Section 47 and this
lease with respect to the Chicago Title Participation Right and under the
terms and conditions which are reasonably acceptable to Landlord;
provided, however, that Tenant will not have the right to encumber,
mortgage or pledge Tenant's interest in the leasehold estate or to permit
any' liens or encumbrances on the Land or the Building in connection with
the Chicago Title Participation Right. For purposes of this Section 47, an
Affiliate will be deemed not to be a third party.
(h) Ultimate Termination of Chicago Title Participation Right. Provided
that Landlord (or its successor in interest to the rights of Landlord
under this lease) has fully and completely performed its obligations under
this Section 47, the Chicago Title Participation Right will terminate on
the sale of the Building (including a foreclosure or transfer to a lender
-15-
133
of the entire ownership interest) or sale (or squeeze down) of Linpro's
entire interest in the Partnership, in either case, other than a sale to a
Linpro Affiliate, and upon the payment to Tenant of the entire Chicago
Title Participation Right payable to Tenant in connection with such
transaction.
(i) No Partnership. The Chicago Title Participation Right is not a
partnership interest and Tenant is not and will not be deemed to be a
partner of Landlord or Linpro or Investors.
(j) Market Value; Appraisal Procedure. In the event that Landlord desires
to purchase the Chicago Title Participation Right as permitted by this
Section 47, the purchase price for the Chicago Title Participation Right
will be equal to the aggregate amounts which Tenant would receive under
Section 47(a)(ii)(B) of this lease if the Building were sold for its
market value on the effective date for the determination of the purchase
price, for the Chicago Title Participation Right. If it is necessary under
this lease to determine the market value of the Building for any reason,
the market value of the Building will be determined in the manner provided
for in this Section 47(j). If Landlord desires to establish the market
value for the Building., Landlord may notify Tenant in writing of
Landlord's determination of the market value of the Building. If Tenant
does not respond in writing within ten (10) days after the receipt of such
notice of Tenant's disagreement and determination of the market value of
the Building, then Landlord's determination will be binding. If Landlord
does not so notify Tenant, or if it does notify Tenant and Tenant
disagrees as provided above, then Landlord and Tenant will each select an
appraiser within ten (10) days after the request of either party for a
determination of the market value of the Building under this Section
47(j). The two (2) appraisers selected by Landlord and Tenant will within
ten (10) days after their respective appointments, each make a
determination of the market value of the Building. If the difference
between the market values of the Building determined by each of the
appraisers is less than five percent (5%) of the lesser value, the average
of the two values will be the market value to be used in determining the
purchase price for the Chicago Title Participation Right. If the
difference between the two values is more than five percent (5%) of the
lesser value, then the two appraisers will within twenty-five (25) days
after their respective appointments appoint a third appraiser. The third
appraiser will make his determination of the market value of the Building
within ten (10) days of his appointment. If the difference between the
third appraiser's determination of market value of the Building and the
average of the market values of the Building specified by the first two
appraisers is less than ten percent (10%) of the lower of the third
appraiser's determination and said average, then the average of the three
market value determinations will be the
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134
market value of the Building to be used in determining the purchase price
for the Chicago Title Participation Right. Otherwise, the average of the
two closest market value determinations will be the market value of the
Building to be used in determining the. purchase price to' be paid for the
Chicago Title Participation Right. The three (3) appraisers will be MM
appraisers licensed by the State of Illinois, and will have at least :ten
(10) years experience in appraising commercial real estate in the Chicago
metropolitan area.
(k) Subject to the provisions of Sections 47(e), 47(f) arid 47(h), the
provisions of this Section 47 will survive the expiration or termination
of this lease."
1.03 Additional Amendments to Lease. In each. place in the lease where the
term "CT&T Percentage" appears, there will be deemed substituted therefor the
term "Chicago Title Participation Right." The Land (as defined in the Lease)
shall be deemed to mean the Site.
1.04 Notice Amendment to Lease. Section 24 of the lease. is hereby deleted
and the following is substituted in lieu therefor:
"24. Notices. All notices, requests, demands, or other
communications to or upon Landlord or Tenant desired or required to be
given under any of the provisions hereof shall be in writing. Any notices
or demands from Landlord to Tenant shall be deemed to have been given if a
copy thereof has been personally delivered to Tenant (including without
limitation delivery by facsimile transmission, messenger or courier, with
evidence of receipt) or mailed by United States registered or certified
mail addressed to Tenant prior to the Low-Rise Commencement Date at 000
xxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, to the attention of both
the General Counsel and the Senior Vice President-Real Estate
Administration, and after the Low-Rise Commencement Date at the Premises.
Any notices or demands from Landlord to Tenant may be signed by Landlord,
its beneficiary, the managing agent of the Building (the "Building
Manager") or any agent of any of them. After the Low-Rise Commencement
Date if Tenant is a corporation and is not in occupancy of the Premises,
any notices or demands from Landlord to Tenant shall also be deemed to
have been given if a copy thereof is mailed by registered or, certified
mail to Tenant's registered agent in Illinois. Any notices or demands from
Tenant to Landlord shall be deemed to have been given if a copy thereof
has been personally delivered to Landlord (including without limitation
delivery by facsimile transmission, messenger or courier, with evidence of
receipt) or mailed, by' registered or certified mail return receipt
requested as follows (with a copy to the Building Manager who shall
initially be Linpro Illinois Admin Limited Partnership whose address is 00
Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx or
-17-
135
such other corporation, partnership or other entity selected by Landlord,
in its sole discretion, as the manager for the Building):
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
x/x Xxx Xxxxxx Xxxxxxx
000 Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telefacsimile No. (215) 981-1539
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
c/o Argus Realty Services, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Telefacsimile No. (000) 000-0000
With copies to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telefacsimile No. (000) 000-0000
Xxxxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxx Xxxxxxxx, Esq.
Telefacsimile No. (000) 000-0000
Xxxx & Xxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Xx., Esq.
Telefacsimile No. (000) 000-0000
Either party may, upon notice to the other, change its address for receipt
of notices or demands. All notices to or demands upon Landlord or Tenant
mailed by registered or certified mail shall be deemed served at the time
the same were posted."
1.05 Certificate to Construction Lender. The following shall be added to
the end of the last grammatical paragraph of Section 57 of the lease:
"Anything herein to the contrary contained notwithstanding, the parties
hereto agree that `succession to the interest of Landlord by a New
Landlord-(as defined in the Certificate (as defined below] pursuant to the
terms of that certain tenant estoppel letter dated November 17, 1989 (the
-18-
136
"Certificate") executed by Tenant is not sufficient to constitute an
assumption of the obligations of Landlord as described in the first
sentence of this grammatical paragraph and that, therefore, such
succession shall not be deemed to relieve Landlord of its obligations
under this lease. The immediately preceding sentence, shall not be deemed
to modify the Certificate."
ARTICLE II
RATIFICATION OF LEASE
By their execution of this Amendment, Landlord and Tenant hereby ratify,
approve and adopt the terms and provisions of the lease, as amended hereby, and
agree to keep and perform all of the duties and obligations of Landlord and
Tenant, respectively, set forth in the lease, as so amended.
ARTICLE III
EFFECT ON LEASE
Except as hereby expressly amended, the lease will remain in full force
and effect as written.
ARTICLE IV
COUNTERPARTS
This Amendment may be executed in several counterparts, each of which will
be an original of this Amendment but all of which, taken together, will
constitute one and the same Amendment.
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137
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
duly executed by their authorized representatives as of the date first above
written.
LANDLORD:
000 XXXXX XXXXX XXXXXX
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LINPRO CHICAGO PROPERTY I
LIMITED PARTNERSHIP,
an Illinois limited partnership,
General Partner
By:
---------------------------------
Managing General Partner
By:
---------------------------------
Managing General Partner
By: XXXXX STREET GENERAL
CORPORATION B.V.,
a Netherlands corporation
By:
---------------------------------
Managing Director
By:
---------------------------------
Managing Director
TENANT:
CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation
By: /s/ [ILLEGIBLE]
-------------------------------------
Its: Senior Vice President
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138
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
duly executed by their authorized representatives as of the date first above
written.
LANDLORD:
000 XXXXX XXXXX XXXXXX
LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LINPRO CHICAGO PROPERTY I
LIMITED PARTNERSHIP,
an Illinois limited partnership,
General Partner
By: /s/ [ILLEGIBLE]
---------------------------------
Managing General Partner
By: /s/ [ILLEGIBLE]
---------------------------------
Managing General Partner
By: XXXXX STREET GENERAL
CORPORATION B.V.,
a Netherlands corporation
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Director
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Director
TENANT:
CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation
By:
-------------------------------------
Its:
--------------------------------
LINPRO:
LINPRO CHICAGO PROPERTY I
LIMITED PARTNERSHIP,
an Illinois limited partnership
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Director
By: /s/ [ILLEGIBLE]
---------------------------------
Managing Director
139
EXHIBIT A
[Description of Phase I]
140
PAGE 1
EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1:
A PARCEL OF LAND COMPRISED OF A PART OF LOTS 2 AND 3, ALL OF THE LOTS 5 AND 6,
THAT PART OF VACATED COUCH PLACE WHICH LIES NORTH OF AND ADJOINING SAID LOTS 5
AND 6: TOGETHER WITH ALL OF SUB-LOT 9 AND A PART OF SUB-LOT 8. BOTH IN XXXXXX
XXXXX'X SUBDIVISION OF ORIGINAL XXX 0, [XXXXXXXXX] XX XXXXX 00 XX XXXXXXXX XXXX
OF CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST
OF THE THIRD PRINCIPAL MERIDIAN XXXX COUNTY, ILLINOIS, WHICH PARCEL OF LAND IS
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTH LINE OF XXXX XXXXXXXX STREET WITH THE
EAST LINE OF NORTH XXXXX STREET, SAID POINT OF INTERSECTION BEING ALSO THE
SOUTHWEST CORNER OF SAID XXX 0, XXX XXXXXXX XXXXXX XXXXX XXXXX SAID EAST LINE OF
NORTH XXXXX STREET, A DISTANCE OF 227.08 FEET; THENCE EAST ALONG A LINE PARALLEL
WITH THE NORTH LINE OF XXXX XXXXXXXX STREET, A DISTANCE OF 164.08 FEET; THENCE
SOUTH ALONG A LINE PERPENDICULAR TO THE LAST DESCRIBED COURSE, A DISTANCE OF
27.95 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID LOT 2, SAID SOUTH LINE
BEING ALSO THE NORTH LINE OF WEST COUCH PLACE; THENCE WEST ALONG SAID SOUTH LINE
OF LOT 2, A DISTANCE OF 2.68 FEET TO AN INTERSECTION WITH THE NORTHWARD
EXTENSION OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH ALONG SAID NORTHWARD
EXTENSION AND ALONG THE EAST LINE OF SAID LOT 6, A DISTANCE OF 199.13 FEET TO AN
INTERSECTION WITH SAID XXXXX XXXX XX XXXX XXXXXXXX XXXXXX; THENCE WEST ALONG
SAID NORTH LINE, A DISTANCE OF 160.98 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE EAST 1/2 OF LOT 7, TOGETHER WITH THAT PART OF THE ORIGINAL 18 FEET ALLEY
NORTH OF AND ADJOINING SAME WHICH LIES SOUTH OF THE SOUTH LINE OF ALLEY AS
NARROWED BY ORDINANCE OF THE CITY OF CHICAGO. EXCEPTING FROM PARCEL 2 THE AIR
RIGHTS ACQUIRED BY THE CITY OF CHICAGO THROUGH EXERCISE OF THE POWER OF EMINENT
DOMAIN IN CASE NUMBER 86L50733, CIRCUIT COURT OF XXXX COUNTY, ILLINOIS, BEING
DESCRIBED AS FOLLOWS:
THE NORTH 111.00 FEET OF THE EAST 1/2 OF LOT 7 LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF +22.00 FEET ABOVE CHICAGO CITY DATUM, AND THE SOUTH 16.00
FEET OF THE NORTH 127.00 FEET OF THE EAST 1/2 OF LOT [ILLEGIBLE] LYING ABOVE A
HORIZONTAL PLANE HAVING AN ELEVATION OF +14.66 FEET ABOVE CHICAGO CITY DATUM,
AND THAT PART OF THE EAST 1/2 OF LOT 7, EXCEPT THE NORTH 127.00 FEET THEREOF,
LYING ABOVE A HORIZONTAL PLANE HAVING AN ELEVATION OF +12.66 FEET ABOVE CHICAGO
CITY DATUM; ALL IN BLOCK [ILLEGIBLE] THE ORIGINAL TOWN OF CHICAGO, IN THE
SOUTHEAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD
PRINCIPAL MERIDIAN, XXXX COUNTY, ILLINOIS.
PARCEL 3:
EASEMENT APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1 AND 2
141
PAGE 2
LEGAL DESCRIPTION
AFORESAID, AS CREATED BY GRANT FROM THE CITY OF CHICAGO, A MUNICIPAL
CORPORATION, TO GREYHOUND LINES, INC., A CORPORATION OF CALIFORNIA, AS
ESTABLISHED BY ORDER ENTERED NOVEMBER 12, 1986 IN CASE NUMBER 86L50733, CIRCUIT
COURT OF XXXX COUNTY, ILLINOIS, LAW DIVISION, COPY OF WHICH ORDER WAS RECORDED
DECEMBER 16, 1986 AS DOCUMENT NUMBER 86601353 AND BY STIPULATION ON USE OF
TUNNEL ENTERED JUNE 11, 1987 IN SAID CASE, FOR PERMANENT PERMISSION AND
AUTHORITY TO USE AND MAINTAIN THE TUNNEL, AS THEN CONSTRUCTED, AS A PASSAGE FOR
VEHICLES UNDER AND ACROSS THAT PART OF WEST LAKE STREET LYING BETWEEN NORTH
DEARBORN STREET AND NORTH XXXXX STREET BEING DESCRIBED AS FOLLOWS:
THAT PART OF WEST LAKE STREET LYING BETWEEN AND ADJOINING BLOCKS 17 AND 35 IN
THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS
FOLLOWS:
BEGINNING ON THE XXXXX XXXX XX XXXX XXXX XXXX XXXXXX AT THE INTERSECTION OF SAID
LINE WITH THE EAST LINE OF NORTH XXXXXX COURT, SAID EAST LINE OF NORTH XXXXXX
COURT BEING ALSO THE WEST LINE OF THE EAST 1/2 OF LOT 7 IN BLOCK 17 IN ORIGINAL
TOWN OF CHICAGO AFORESAID, AND RUNNING THENCE EAST ALONG SAID NORTH LINE OF WEST
LAKE STREET, SAID NORTH LINE BEING ALSO THE SOUTH LINE OF AFORESAID BLOCK 17, A
DISTANCE OF 31.35 FEET; THENCE SOUTHWESTWARDLY ALONG AN ARC OF A CIRCLE CONVEX
TO THE SOUTHEAST AND HAVING A RADIUS OF 175.35 FEET, A DISTANCE OF 83.35 FEET TO
A POINT WHICH IS 8.66 FEET WEST OF THE EAST LINE OF SAID NORTH XXXXXX COURT,
EXTENDED SOUTH, AND 72.86 FEET SOUTH OF SAID XXXXX XXXX XX XXXX XXXX XXXXXX;
THENCE CONTINUING SOUTHWESTWARDLY ALONG AN ARC OF A CIRCLE, AND HAVING A RADIUS
OF 33.25 FEET, A DISTANCE OF 8.26 FEET, TO INTERSECTION WITH THE SOUTH LINE OF
SAID WEST LAKE STREET, AT A POINT 13.45 FEET WEST OF THE EAST LINE OF NORTH
XXXXXX COURT, EXTENTED SOUTH; THENCE WEST ALONG SAID SOUTH LINE OF WEST LAKE
STREET, BEING ALSO THE NORTH LINE OF BLOCK 35 AFORESAID, A DISTANCE OF 68.63
FEET; THENCE NORTHEASTWARDLY ALONG A STRAIGHT LINE, A DISTANCE OF 29.63 FEET, TO
A POINT WHICH IS 56.39 FEET WEST OF SAID EAST LINE OF NORTH XXXXXX COURT,
EXTENDED SOUTH, AND 64.57 FEET SOUTH OF THE NORTH LINE OF SAID WEST LAKE STREET;
THENCE NORTHEASTWARDLY ALONG AN ARC OF A CIRCLE, TO THE SOUTHEAST, TANGENT TO
THE LAST DESCRIBED STRAIGHT LINE, AND HAVING A RADIUS OF 88.15 FEET, A DISTANCE
OF 32.55 FEET TO A POINT WHICH IS 31.77 FEET WEST OF SAID EAST LINE OF NORTH
XXXXXX COURT, EXTENTED SOUTH, AND 43.14 FEET SOUTH OF THE NORTH LINE OF WEST
LAKE STREET; THENCE CONTINUING NORTHEASTWARDLY ALONG AN ARC OF A CIRCLE CONVEX
TO THE SOUTHEAST, TANGENT TO THE LAST DESCRIBED ARC OF A CIRCLE AND HAVING A
RADIUS OF 167.50 FEET, A DISTANCE OF 71.05 FEET, TO AN INTERSECTION WITH THE
AFORESAID EAST LINE OF NORTH XXXXXX COURT, AT A POINT 20.34 FEET NORTH OF THE
NORTH LINE OF SAID WEST LAKE STREET, AND THENCE SOUTH ALONG THE SAID EAST LINE
OF NORTH XXXXXX COURT, SAID DISTANCE OF 20.34 FEET, TO THE POINT OF BEGINNING,
IN XXXX COUNTY, ILLINOIS.
PARCEL 4:
142
PAGE 3
LEGAL DESCRIPTION
EASEMENTS APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1, 2 AND 3, AS CREATED
AND SPECIFICALLY SET OUT IN THE DEVELOPMENT, OPERATION AND CROSS-EASEMENT
AGREEMENT DATED NOVEMBER_ _, 1989 AND RECORDED NOVEMBER _ _, 0000 AS DOCUMENT _
_ _ _ _ _ MADE BY AND BETWEEN LASALLE NATIONAL BANK AS TRUSTEE UNDER TRUST
AGREEMENT DATED NOVEMBER _ _, 0000 AND KNOWN AS TRUST NUMBER 114995, AND LASALLE
NATIONAL BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER_ _, 1989 AND KNOWN
AS TRUST NUMBER 115015 OVER AND ONTO AND UNDER SPECIFIED PORTIONS OF THE LAND
DESCRIBED BELOW, AND DESCRIBED AS FOLLOWS:
(A) AN EXCLUSIVE, TEMPORARY RIGHT AND EASEMENT FOR THE PURPOSE OF DEMOLITION,
(B) A NON-EXCLUSIVE, TEMPORARY RIGHT AND EASEMENT FOR THE PURPOSE OF
CONSTRUCTION;
(C) A RIGHT AND EASEMENT FOR INCIDENTAL ENCROACHMENTS OF ELEMENTS OR CONSTRUCTED
IMPROVEMENTS;
(D) A RIGHT AND EASEMENT TO INSTALL AND MAINTAIN WEATHERPROOFING MATERIAL
(E) AN EXCLUSIVE RIGHT AND EASEMENT FOR USE OF ACCESS TUNNEL (SUBJECT ONLY TO
SECTION 4(D) OF SAID AGREEMENT) FOR VEHICULAR USE AND PEDESTRIAN ACCESS TO AND
FROM SUBSURFACE LEVELS OF THE IMPROVEMENTS ON THE EASEMENT PARCEL, (TOGETHER
WITH OTHER PROPERTY SET FORTH IN SAID AGREEMENT) AND ADJOINING PUBLIC RIGHTS OF
WAY;
(F) A NON-EXCLUSIVE RIGHT AND EASEMENT TO USE COMMON HALLWAYS, CORRIDORS,
ENTRANCES AND EXITS FOR PEDESTRIAN ACCESS;
(G) A TEMPORARY, NON-EXCLUSIVE RIGHT AND EASEMENT TO THE EASEMENT PARCEL AS IS
NECESSARY TO MAINTAIN THE FEE PARCEL;
(H) A NON-EXCLUSIVE EASEMENT AND RIGHT TO USE THE VEHICULAR AISLES, DRIVEWAYS,
ENTRANCES AND EXITS OF SUBSURFACE PARKING GARAGE FACILITY ON EASEMENT PARCEL
THE LAND
PARCEL A:
A PARCEL OF LAND COMPRISED OF A PART OF LOTS 2 AND 3; XXX-XXXX 0, 0, 0, 0, 0, 0,
0 AND PART OF OF SUB-LOT 8 IN XXXXXX XXXXX'X SUBDIVISION OF ORIGINAL LOT 4; ALL
IN BLOCK 35 OF ORIGINAL TOWN OF CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX
COUNTY, ILLINOIS, WHICH PARCEL OF LAND IS BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EAST LINE OF NORTH XXXXX STREET, WHICH
143
PAGE 4
LEGAL DESCRIPTION
POINT IS 227.08 FEET NORTH OF THE INTERSECTION OF SAID EAST LINE WITH THE NORTH
LINE OF XXXX XXXXXXXX STREET, AND RUNNING THENCE EAST ALONG A LINE PARALLEL WITH
THE NORTH LINE OF XXXX XXXXXXXX STREET, A DISTANCE OF 164.08 FEET; THENCE SOUTH
ALONG A LINE PERPENDICULAR TO THE LAST DESCRIBED COURSE, A DISTANCE OF 27.95
FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID LOT 2, SAID SOUTH LINE BEING
ALSO THE NORTH LINE OF WEST COUCH PLACE; THENCE EAST ALONG SAID SOUTH LINE OF
LOT 2, A DISTANCE OF 38.70 FEET TO AN INTERSECTION WITH THE WEST LINE OF THE
EAST 19 FEET OF THE WEST 1/2 OF THE EAST 1/2 OF SAID LOT 2, SAID LINE BEING ALSO
THE WEST LINE OF A PUBLIC ALLEY, 18.00 FEET WIDE; THENCE NORTH ALONG SAID WEST
LINE OF THE PUBLIC ALLEY, A DISTANCE OF [ILLEGIBLE] FEET TO AN INTERSECTION WITH
THE XXXXX XXXX XX XXXX XXXX XXXXXX; THENCE WEST ALONG SAID NORTH LINE OF WEST
LAKE STREET, A DISTANCE OF 202.44 FEET TO AN INTERSECTION WITH THE EAST LINE OF
NORTH XXXXX STREET, THENCE SOUTH ALONG SAID EAST LINE OF NORTH XXXXX STREET, A
DISTANCE OF 153.96 FEET TO THE POINT OF BEGINNING
PARCEL B:
THE EAST 1 FOOT OF THE WEST 1/2 OF THE EAST 1/2 OF LOT 2 IN SAID BLOCK 35
AFORESAID.
144
November 17, 0000
Xxx Xxxx xx Xxxx Xxxxxx
Atlanta Agency
Xxxxx 000
00 Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
c/o The Linpro Company
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Chicago Title Center
Gentlemen:
Reference is made to that certain Lease dated as of July 24, 1989 by and
between Linpro Chicago Land Limited Partnership, an Illinois limited partnership
("Seller"), and Chicago Title and Trust Company, an Illinois corporation, as
amended by that certain First Amendment to Lease dated November 17, 1989
(together, the "Lease"), subject to the terms and conditions of which the Seller
agreed to demise and the undersigned agreed to accept certain premises (the
"Premises"). The undersigned understands: (i) that 000 Xxxxx Xxxxx Xxxxxx
Limited Partnership, a Delaware limited partnership ("Purchaser"), is acquiring
from Seller the real property described on Exhibit A hereto (the "Subject
Property") subject to the Lease; (ii) the Purchaser is acquiring the landlord's
interest in the Lease; and (iii) that Purchaser, Seller and The Bank of Nova
Scotia ("Construction Lender") are relying upon this certificate (this
"Certificate") in connection with such acquisition or the financing of the
construction of the improvements to be erected on the Subject Property, as the
case may be.
With such understanding, the undersigned hereby represents and agrees, for
the benefit of Seller, Purchaser and Construction Lender that as of the date
hereof:
1. As of the date hereof, the undersigned is the tenant under the Lease.
2. A true, correct and complete copy of the Lease is attached hereto as
Exhibit A.
145
November 17, 1989
Page 2
3. The Lease is in full force and effect, is binding on the undersigned,
is hereby ratified and confirmed and constitutes the entire agreement between
the undersigned and the landlord thereunder and has not been assigned,
subleased, encumbered, transferred, supplemented, modified or amended by the
undersigned and there do not exist any other agreements concerning the Premises,
any other space or any other matter, whether oral, written or otherwise, between
the landlord under the Lease and the undersigned.
4. To the best of the undersigned's knowledge, the landlord is not in
default under the Lease and the undersigned has no existing defenses or offsets
against the enforcement of the Lease by the landlord; provided, however, that
the undersigned has not yet approved, and does not waive its rights to approve,
those facets of the design (including signage) and construction of the Subject
Property which the undersigned is entitled to approve under the Lease. Further,
the undersigned reserves the right to enforce the ceiling heights for the vault
space as set forth in the Lease.
5. There is no litigation pending or threatened by the undersigned against
the landlord, with respect to the Lease.
6. No action, voluntary or involuntary, is pending against the undersigned
under the bankruptcy or insolvency laws of the United States or any state
thereof.
7. The undersigned has received the following first mortgagee's addresses
for notices and other communications to be sent by the undersigned to the
Construction Lender as is set forth in this Certificate or the Lease:
with a copy to:
The Bank of Nova Scotia The Bank of Nova Scotia
Atlanta Agency Chicago Representative Xxxxxx
00 Xxxx Xxxxx, Xxxxx 000 00 Xxxx Xxxxxx Street
Atlanta, Georgia 30303 Xxxxxxx, Xxxxxxxx 00000
Attention: Agent Attention: Real Estate Banking
8. The undersigned and the person or persons executing this Certificate on
behalf of the undersigned have the power and authority to render this
Certificate.
9. The Premises have not, as of yet, been constructed.
10. Base Rent (as defined in the Lease) and other charges under the Lease
have not been paid or prepaid, nor are they due.
146
November 17, 1989
Page 3
11. The Lease and rents due thereunder have been assigned to Construction
Lender to secure an indebtedness owed to Construction Lender by Purchaser and
that the undersigned will make all rent payments due under the Lease to
Construction Lender, or as Construction Lender may direct, after such time as
Construction Lender notifies the undersigned in writing that Construction Lender
is entitled to receive such rents, in accordance with the provisions of said
assignments provided that such payment would not violate any applicable law and
provided that the landlord is not in bankruptcy.
12. In the event of a deed in lieu of foreclosure, foreclosure, or other
exercise of Construction Lender's remedies, the Lease shall, in accordance with
and subject to its terms, remain in full force and effect as a direct agreement
between the undersigned and Construction Lender or any other party who succeeds
to the interest of the landlord by virtue of such deed in lieu of foreclosure,
foreclosure or other exercise of Construction Lender's remedies ("New
Landlord").
13. Without the prior written consent of Construction Lender, the
undersigned will not (a) enter into any agreement materially amending or
terminating the Lease, or (b) enter into a voluntary agreement with the landlord
which provides for the cancellation of the term of, or surrender of, the Lease.
14. Prior to terminating the Lease, the undersigned will provide
Construction Lender with written notice of the default under the Lease by the
landlord and will provide Construction Lender a period of thirty (30) days after
receipt of such written notice within which to remedy such default; provided,
however, that if (i) such default occurs after the tenant's acceptance of the
Premises, (ii) such default is of such nature that Construction Lender cannot
reasonably cure such default without obtaining possession of the Subject
Property, (iii) such default can reasonably be cured by the undersigned through
the exercise of its "self-help" rights described in Section 29(c)(ii) of the
Lease and (iv) the amount to be expended by the undersigned in connection with
the exercise of such "self-help" rights does not exceed the Base Rent then
payable for the next succeeding calendar month, then, without terminating the
Lease (unless Construction Lender fails to cure within the extended cure period
set forth below), the tenant shall, at its sole election, either (x) exercise
the "self-help" and offset rights described in Section 29(c) (ii) of the Lease
or (y) extend the cure period in which Construction Lender may cure such default
for such time as is reasonably necessary for Construction Lender (I) to obtain
possession of the Subject Property by such legal action as Construction Lender
deems, in its reasonable judgment, most expedient to obtain said possession and
(II) to cure thereafter
147
November 17, 1989
Page 4
such default. Clause (iv) of the immediately preceding sentence to the contrary
notwithstanding, if the exercise of such "self-help" rights would reasonably
require expenditures in an amount in excess of the next succeeding month's Base
Rent, the undersigned shall afford Construction Lender the opportunity to pay
such excess within thirty days of receipt of written notice of the expense to be
incurred in connection with exercising such "self-help" rights. To the extent
such expense requires the tenant to employ a Contractor, said notice shall be
accompanied by an estimate from such contractor. In the event Construction
Lender pays such excess, the undersigned shall not have the right to terminate
the Lease by reason of such default if all other conditions of the first
sentence of this Paragraph 14 are satisfied. Upon request by Construction
Lender, the undersigned shall provide invoices, lien waivers and other
information or documentation reasonably requested by Construction Lender.
Construction Lender may at its option elect to pay such amounts directly or
through a construction escrow. Notwithstanding the foregoing, the undersigned
agrees that Construction Lender shall have no obligation to remedy, or to
advance funds for the purpose of remedying, any such default by the landlord
under the Lease.
15. The undersigned will from time to time, at reasonable intervals and
upon not less than ten (10) days' prior written request by Construction Lender,
execute, acknowledge and deliver to Construction Lender an estoppel certificate
containing the information undersigned is required to provide in the certificate
described in Section 21 of the Lease.
16. In the event that Construction Lender or any other New Landlord shall
succeed to the interest of the landlord under the Lease:
(A) Construction Lender or such other New Landlord shall not be: (i) bound
by any rent or additional rent which undersigned shall have paid more than one
month in advance to any prior landlord, (ii) bound by any material amendment or
modification to the Lease, which has not been consented to in writing by
Construction Lender;
(B) No New Landlord (including, without limitation, Construction Lender):
(i) shall be liable for damages by reason of any act or omission of any prior
landlord (provided that this clause shall not be deemed to diminish any right of
the undersigned against any party other than a New Landlord), (ii) shall be
subject to any offset under the lease with regard to any amounts expended by the
undersigned more than two years prior to the date a New Landlord succeeded to
the interest of the landlord under the Lease, provided that notwithstanding the
foregoing a New Landlord shall be subject to such offset so long as the
148
November 17, 1989
Page 5
undersigned commenced such offset not less than six months after the first of
such offset amounts were expended and thereafter continued such offset to the
fullest extent possible, or (iii) shall be liable for the return of any security
deposit made by undersigned to any prior landlord unless such New Landlord shall
have actually received such security deposit from a prior landlord; provided,
further, the undersigned acknowledges that simultaneous with such succession the
Chicago Title Participation Rights shall terminate and neither the Construction
Lender nor any other New Landlord shall have any liability with respect to the
Chicago Title Participations Rights, but nothing in this Certificate shall
affect the obligations of the Purchaser under the Lease or the obligations of
any party to the Personal Guaranty or Letter of Credit (as defined in the
Lease); and
(C) The undersigned shall look solely to the Subject Property for recovery
of any judgment or damages from Construction Lender or any of its nominees or
affiliates and neither construction Lender nor any of its nominees or affiliates
shall have any personal liability, directly or indirectly, under or in
connection with the Lease or this Certificate or any amendment or amendments to
either thereof made at any time or times, heretofore or hereafter, except to the
extent of its interest in the Subject Property, and undersigned hereby forever
and irrevocably waives and releases any and all such personal liability. The
limitation of liability provided in this paragraph is in addition to, and not in
limitation of, any limitation on liability applicable to Construction Lender or
such other New Landlord provided by law or by any other contract, agreement or
instrument. Notwithstanding the foregoing, nothing in this Certificate shall act
as a limitation on the liability of Seller or Purchaser or the enforceability by
the undersigned of the Personal Guaranty or the Letter of Credit.
17. Except as required under the Lease, the undersigned, for itself and
its successors and assigns, agrees that, without the prior written consent of
Construction Lender, the undersigned will not (a) enter into any subordination
agreement with any person other than Construction Lender; or (b) agree to attorn
to or recognize any purchaser of the Subject Property at any foreclosure sale
under any lien other than that of the Construction Lender's mortgage or any
transferee who acquires the Subject Property by deed in lieu of foreclosure or
otherwise under any lien other than that of the Construction Lender's mortgage
(provided, however, that this provision shall not be deemed to constitute
Construction Lender's consent to the placing of any lien other than the
Construction Lender's mortgage on the Subject Property).
149
November 17, 1989
Page 6
18. This Certificate shall be binding upon and shall inure to the benefit
of the undersigned, Seller, Purchaser and Construction Lender, and their
respective successors and assigns.
Very truly yours,
CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation (for
the foregoing purposes the
"undersigned")
[SEAL]
Attest:
By: /s/ [ILLEGIBLE]
-------------------------------------
By: /s/ [ILLEGIBLE] Its: Senior Vice President
------------------------
Its: Ass't Secretary
150
JOINDER
This joinder is executed for the purpose of acknowledging and consenting
to paragraph 11 regarding collection of rent. The undersigned irrevocably
directs Chicago Title and Trust Company ("CT&T") to pay rent in accordance with
said paragraph and agrees that payment of rent in accordance with said paragraph
shall constitute payment of rent under the Lease whether or not the notice by
Construction Lender described in said paragraph is rightfully or wrongfully
given, it being understood that CT&T shall have no right or responsibility to
inquire into whether Construction Lender is entitled to give such notice;
provided, however, that nothing contained in this joinder shall constitute a
waiver or release of any rights or claims that the undersigned may have against
the Construction Lender in connection with any request by the Construction
Lender to CT&T to make rental payments to the Construction Lender in accordance
with said paragraph. The undersigned waives the right to collect from CT&T any
rent paid in accordance with said paragraph 11. This joinder shall be binding
upon and shall inure to the benefit of the successors, assigns and legal
representatives of the undersigned.
000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP
By: LINPRO CHICAGO PROPERTY I LIMITED
PARTNERSHIP, a general partner
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Managing General Partner
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing General Partner
By: XXXXX STREET GENERAL CORPORATION B.V.,
a general partner
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director:
By:
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
151
JOINDER
This joinder is executed for the purpose of acknowledging and consenting
to paragraph 11 regarding collection of rent. The undersigned irrevocably
directs Chicago Title and Trust Company ("CT&T") to pay rent in accordance with
said paragraph and agrees that payment of rent in accordance with said paragraph
shall constitute payment of rent under the Lease whether or not the notice by
Construction Lender described in said paragraph is rightfully or wrongfully
given, it being understood that CT&T shall have no right or responsibility to
inquire into whether Construction Lender is entitled to give such notice;
provided, however, that nothing contained in this joinder shall constitute a
waiver or release of any rights or claims that the undersigned may have against
the Construction Lender in connection with any request by the Construction
Lender to CT&T to make rental payments to the Construction Lender in accordance
with said paragraph. The undersigned waives the right to collect from CT&T any
rent paid in accordance with said paragraph 11. This joinder shall be binding
upon and shall inure to the benefit of the successors, assigns and legal
representatives of the undersigned.
000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP
By: LINPRO CHICAGO PROPERTY I LIMITED
PARTNERSHIP, a general partner
By:
---------------------------------
Name: Xxxx Xxxxxxx
Title: Managing General Partner
By:
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing General Partner
By: XXXXX STREET GENERAL CORPORATION B.V.,
a general partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director:
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
000
XXXXX XX XXXXXXXX )
) SS
COUNTY OF XXXX )
I, Xxxx X. Xxxxxxxxxxx, a Notary Public, do hereby certify that Xxxxxxx X.
Xxxxxxx, personally known to me to be the Senior Vice President of CHICAGO TITLE
TRUST COMPANY, an Illinois corporation, and Xxxxxxx X. Xxxxxxx personally known
to me to be the Assistant Secretary of said corporation, and personally known to
me to be the same persons whose names are subscribed to the foregoing
instrument, appeared before me this day in person and severally acknowledged
that as such Sr. vice President and Assistant Secretary they signed and
delivered the said instrument as Sr. Vice President and Assistant Secretary of
said corporation, and caused the corporate seal of said corporation to be
affixed thereto, pursuant to authority, given by the Board of Directors of said
corporation as their free and voluntary act, and as the free and voluntary act
and deed of said corporation, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 22nd day of November, 1989.
/s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------------
Notary Public
My Commission expires:
March 2, 1992
[SEAL]
"OFFICIAL SEAL"
Xxxx X. Xxxxxxxxxxx
Notary Public, State of Illinois
My commission Expires 3/2/92
000
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF XXXX )
The foregoing, instrument was acknowledged before me this 17 day of
November, 1989 by XXXX XXXXXXX and XXXXXXX XXXXXX, each a Managing General
Partner of LINPRO PROPERTY I LIMITED PARTNERSHIP, an Illinois limited
partnership, general partner of 000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP, a
Delaware limited partnership, on behalf of each of the partnerships.
/s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Notary Public
Xxxx County, Illinois
My Commission expires: 2-17-91
"OFFICIAL SEAL"
XXXXXXXX XXXXXX
Notary Public, State of Illinois
My commission Expires Feb. 17, 0000
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF XXXX )
The foregoing, instrument was acknowledged before me this 17 day of
November, 1989 by XXXX XXXXXX and XXXXXX X. XXXXXXXX, each a Managing General
Partner of XXXXX STREET GENERAL CORPORATION B.V., a Netherlands corporation,
general partner of 000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP, a Delaware
limited partnership, on behalf of each of the partnerships.
/s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Notary Public
Xxxx County, Illinois
My Commission expires: 2-17-91
"OFFICIAL SEAL"
XXXXXXXX XXXXXX
Notary Public, State of Illinois
My commission Expires Feb. 17, 1991
154
EXHIBIT A
Legal Description
[TO BE PROVIDED]
Property Tax Index Numbers: ______________________________
Common Street: Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx
155
EXHIBIT A 114995
LEGAL DESCRIPTION PAGE: 1
PARCEL 1:
A PARCEL OF LAND COMPRISED OF A PART OF LOTS 2 AND 3, ALL OF THE LOTS 5 AND 6,
THAT PART OF VACATED COUCH PLACE WHICH LIES NORTH OF AND ADJOINING SAID LOTS 5
AND 6; TOGETHER WITH ALL OF SUB-LOT 9 AND A PART OF SUB-LOT 8, BOTH IN XXXXXX
XXXXX'X SUBDIVISION OF ORIGINAL LOT 4; ALL IN BLOCK 35 OF ORIGINAL TOWN OF
CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, IN XXXX COUNTY, ILLINOIS, WHICH PARCEL OF LAND IS
BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF XXX XXXXX XXXX 0X XXXX XXXXXXXX XXXXXX WITH THE
EAST LINE OF NORTH XXXXX STREET, SAID POINT OF INTERSECTION BEING ALSO THE
SOUTHWEST CORNER OF SAID XXX 0, XXX XXXXXXX XXXXXX XXXXX XXXXX SAID EAST LINE OF
NORTH XXXXX STREET, A DISTANCE OF 227.08 FEET; THENCE EAST ALONG A LINE PARALLEL
WITH THE NORTH LINE OF XXXX XXXXXXXX STREET, A DISTANCE OF 164.08 FEET; THENCE
SOUTH ALONG A LINE PERPENDICULAR TO THE LAST DESCRIBED COURSE, A DISTANCE OF
27.95 FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID LOT 2, SAID SOUTH LINE
BEING ALSO THE NORTH LINE OF WEST COUCH PLACE; THENCE WEST ALONG SAID SOUTH LINE
OF LOT 2, A DISTANCE OF 2.68 FEET TO AN INTERSECTION WITH THE NORTHWARD
EXTENSION OF THE EAST LINE OF SAID LOT 6 THENCE SOUTH ALONG SAID NORTHWARD
EXTENSION AND ALONG THE EAST LINE OF SAID LOT 6, A DISTANCE OF 199.13 FEET TO AN
INTERSECTION WITH SAID XXXXX XXXX XX XXXX XXXXXXXX XXXXXX; THENCE WEST ALONG
SAID NORTH LINE, A DISTANCE OF 160.98 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
THE EAST 1/2 OF LOT 7, TOGETHER WITH THAT PART OF THE ORIGINAL 18 FOOT ALLEY
NORTH OF AND ADJOINING SAME WHICH LIES SOUTH OF THE SOUTH LINE OF ALLEY AS
NARROWED BY ORDINANCE OF THE CITY OF CHICAGO. EXCEPTING FROM PARCEL 2 THE AIR
RIGHTS ACQUIRED BY THE CITY OF CHICAGO THROUGH EXERCISE OF THE POWER OF EMINENT
DOMAIN IN CASE NUMBER 86L50733, CIRCUIT COURT OF XXXX COUNTY, ILLINOIS, BEING
DESCRIBED AS FOLLOWS:
THE NORTH 111.00 FEET OF THE EAST 1/2 OF LOT 7 LYING ABOVE A HORIZONTAL PLANE
HAVING AN ELEVATION OF 22.00 FEET ABOVE CHICAGO CITY DATUM, AND THE SOUTH 16.00
FEET OF THE NORTH 127.00 FEET OF THE EAST 1/2 OF LOT 7 LYING ABOVE A HORIZONTAL
PLANE HAVING AN ELEVATION OF +14.66 FEET ABOVE CHICAGO CITY DATUM, AND THAT PART
OF THE EAST 1/2 OF LOT 7, EXCEPT THE NORTH 127.00 FEET THEREOF, LYING ABOVE A
HORIZONTAL PLANE HAVING AN ELEVATION OF 12.66 FEET ABOVE CHICAGO CITY DATUM; ALL
IN BLOCK 17 IN THE ORIGINAL TOWN OF CHICAGO, IN THE SOUTHEAST 1/4 OF SECTION 9
TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE THIRD PRINCIPAL MERIDIAN. IN XXXX
COUNTY, ILLINOIS.
PARCEL 3:
EASEMENT APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1 AND 2
156
LEGAL DESCRIPTION PAGE: 2
AFORESAID, AS CREATED BY GRANT FROM THE CITY OF CHICAGO, A MUNICIPAL
CORPORATION, TO GREYHOUND LINES, INC., A CORPORATION OF CALIFORNIA, AS
ESTABLISHED BY ORDER ENTERED NOVEMBER 12, 1986 IN CASE NUMBER 86L50733, CIRCUIT
COURT OF XXXX COUNTY, ILLINOIS, LAW DIVISION, COPY OF WHICH ORDER WAS RECORDED
DECEMBER 16, 1986 AS DOCUMENT NUMBER 86601353 AND BY STIPULATION ON USE OF
TUNNEL ENTERED JUNE 11, 1987 IN SAID CASE, FOR PERMANENT PERMISSION AND
AUTHORITY TO USE AND MAINTAIN THE TUNNEL, AS THEN CONSTRUCTED, AS A PASSAGE FOR
VEHICLES UNDER AND ACROSS THAT PART OF WEST LAKE STREET LYING BETWEEN NORTH
DEARBORN STREET AND NORTH XXXXX STREET BEING DESCRIBED AS FOLLOWS:
THAT PART OF WEST LAKE STREET LYING BETWEEN AND ADJOINING BLOCKS 17 AND 35 IN
THE ORIGINAL TOWN OF CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9, TOWNSHIP 39
NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS
FOLLOWS:
BEGINNING ON THE XXXXX XXXX XX XXXX XXXX XXXX XXXXXX AT THE INTERSECTION OF SAID
LINE WITH THE EAST LINE OF NORTH XXXXXX COURT, SAID EAST LINE OF NORTH XXXXXX
COURT BEING ALSO THE WEST LINE OF THE EAST 1/2 OF LOT 7 IN BLOCK 17 IN ORIGINAL
TOWN OF CHICAGO AFORESAID AND RUNNING THENCE EAST ALONG SAID NORTH LINE OF WEST
LAKE STREET SAID NORTH LINE BEING ALSO THE SOUTH LINE OF AFORESAID BLOCK 17, A
DISTANCE OF 31.35 FEET; THENCE SOUTHWESTWARDLY ALONG AN ARC OF A CIRCLE CONVEX
TO THE SOUTHEAST AND HAVING A RADIUS OF 175.35 FEET, A DISTANCE OF 83.35 FEET TO
A POINT WHICH IS 8.66 FEET WEST OF THE EAST LINE OF SAID NORTH XXXXXX COURT,
EXTENDED SOUTH, AND 72.86 FEET SOUTH OF SAID XXXXX XXXX XX XXXX XXXX XXXXXX;
THENCE CONTINUING SOUTHWESTWARDLY ALONG AN ARC OF A CIRCLE, AND HAVING A RADIUS
OF 33.25 FEET, A DISTANCE OF 8.26, FEET, TO INTERSECTION WITH THE SOUTH LINE OF
SAID WEST LAKE STREET, AT A POINT 13.45 FEET WEST OF THE EAST LINE OF NORTH
XXXXXX COURT, EXTENDED SOUTH; THENCE WEST ALONG SAID SOUTH LINE OF WEST LAKE
STREET, BEING ALSO THE NORTH LINE OF BLOCK 35 AFORESAID, A DISTANCE OF 68.63
FEET; THENCE NORTHEASTWARDLY ALONG A STRAIGHT LINE, A DISTANCE OF 29.63 FEET, TO
A POINT WHICH IS 56.39 FEET WEST OF SAID EAST LINE OF NORTH XXXXXX COURT,
EXTENDED SOUTH, AND 64.57 FEET SOUTH OF THE NORTH LINE OF SAID WEST LAKE STREET;
THENCE NORTHEASTWARDLY ALONG AN ARC OF A CIRCLE, TO THE SOUTHEAST, TANGENT TO
THE LAST DESCRIBED STRAIGHT LINE, AND HAVING A RADIUS OF 88.15 FEET, A DISTANCE
OF 32.55 FEET TO A POINT WHICH IS 31.77 FEET WEST OF SAID EAST LINE OF NORTH
XXXXXX COURT, EXTENDED SOUTH, AND 43.14 FEET SOUTH OF THE NORTH LINE OF WEST
LAKE STREET; THENCE CONTINUING NORTHEASTWARDLY ALONG AN ARC OF A CIRCLE, CONVEX
TO THE SOUTHEAST, TANGENT TO THE LAST DESCRIBED ARC OF A CIRCLE AND HAVING A
RADIUS OF 167.50 FEET, A DISTANCE OF 71.05 FEET, TO AN INTERSECTION WITH THE
AFORESAID EAST LINE OF NORTH XXXXXX COURT, AT A POINT 20.34 FEET NORTH OF THE
NORTH LINE OF SAID WEST LAKE STREET, AND THENCE SOUTH ALONG THE SAID EAST LINE
OF NORTH XXXXXX COURT, SAID DISTANCE OF 20.34 FEET, TO THE POINT OF BEGINNING,
IN XXXX COUNTY, ILLINOIS.
PARCEL 4:
157
LEGAL DESCRIPTION PAGE: 3
EASEMENTS APPURTENANT TO AND FOR THE BENEFIT OF PARCELS 1, 2 AND 3, AS CREATED
AND SPECIFICALLY SET OUT IN THE DEVELOPMENT, OPERATION AND CROSS-EASEMENT
AGREEMENT DATED NOVEMBER 17, 1989 AND RECORDED NOVEMBER__ 1989 AS DOCUMENT
_________ MADE BY AND BETWEEN LASALLE NATIONAL BANK AS TRUSTEE UNDER TRUST
AGREEMENT DATED NOVEMBER 17, 1989 AND KNOWN AS TRUST NUMBER 114995, AND LASALLE
NATIONAL BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 17, 1989 AND KNOWN
AS TRUST NUMBER 115015 OVER AND ONTO AND UNDER SPECIFIED PORTIONS OF THE LAND
DESCRIBED BELOW, AND DESCRIBED AS FOLLOWS:
(A) AN EXCLUSIVE, TEMPORARY RIGHT AND EASEMENT FOR THE PURPOSE OF DEMOLITION;
(B) A NON-EXCLUSIVE, TEMPORARY RIGHT AND EASEMENT FOR THE PURPOSE OF
CONSTRUCTION;
(C) A RIGHT AND EASEMENT FOR INCIDENTAL ENCROACHMENTS OF ELEMENTS OR CONSTRUCTED
IMPROVEMENTS;
(D) A RIGHT AND EASEMENT TO INSTALL AND MAINTAIN WEATHERPROOFING MATERIAL
(E) AN EXCLUSIVE RIGHT AND EASEMENT FOR USE OF ACCESS TUNNEL (SUBJECT ONLY TO
SECTION 4(D) OF SAID AGREEMENT) FOR VEHICULAR USE AND PEDESTRIAN ACCESS TO AND
FROM SUBSURFACE LEVELS OF THE IMPROVEMENTS ON THE EASEMENT PARCEL, (TOGETHER
WITH OTHER PROPERTY SET FORTH IN SAID AGREEMENT) AND ADJOINING PUBLIC RIGHTS OF
WAY;
(F) A NON-EXCLUSIVE RIGHT AND EASEMENT TO USE COMMON HALLWAYS, CORRIDORS,
ENTRANCES AND EXITS FOR PEDESTRIAN ACCESS;
(G) A TEMPORARY, NON-EXCLUSIVE RIGHT AND EASEMENT TO THE EASEMENT PARCEL AS IS
NECESSARY TO MAINTAIN THE FEE PARCEL;
(H) A NON-EXCLUSIVE EASEMENT AND RIGHT TO USE THE VEHICULAR AISLES. DRIVEWAYS,
ENTRANCES AND EXITS OF SUBSURFACE PARKING GARAGE FACILITY ON EASEMENT PARCEL
THE LAND
PARCEL A:
A PARCEL OF LAND COMPRISED OF A PART OF LOTS 2 AND 3; XXX-XXXX 0, 0, 0, 0, 0, 0,
0 AND PART OF OF SUB-LOT 8 IN XXXXXX XXXXX'X SUBDIVISION OF ORIGINAL LOT 4; ALL
IN BLOCK 35 OF ORIGINAL TOWN OF CHICAGO IN THE SOUTHEAST 1/4 OF SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN XXXX
COUNTY, ILLINOIS, WHICH PARCEL OF LAND IS BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EAST LINE OF NORTH XXXXX STREET, WHICH
158
LEGAL DESCRIPTION PAGE: 4
POINT IS 227.08 FEET NORTH OF THE INTERSECTION OF SAID EAST LINE WITH THE NORTH
LINE OF XXXX XXXXXXXX STREET, AND RUNNING THENCE EAST ALONG A LINE PARALLEL WITH
THE NORTH LINE OF XXXX XXXXXXXX STREET, A DISTANCE OF 164.08 FEET; THENCE SOUTH
ALONG A LINE PERPENDICULAR TO THE LAST DESCRIBED COURSE, A DISTANCE OF 27.95
FEET TO AN INTERSECTION WITH THE SOUTH LINE OF SAID LOT 2, SAID SOUTH LINE BEING
ALSO THE NORTH LINE OF WEST COUCH PLACE; THENCE EAST ALONG SAID SOUTH LINE OF
LOT 2, A DISTANCE OF 38.70 FEET TO AN INTERSECTION WITH THE WEST LINE OF THE
EAST 19 FEET OF THE WEST 1/2 OF THE EAST 1/2 OF SAID LOT 2, SAID LINE BEING ALSO
THE WEST LINE OF A PUBLIC ALLEY, 18.00 FEET WIDE; THENCE NORTH ALONG SAID WEST
LINE OF THE PUBLIC ALLEY, A DISTANCE OF 181.71 FEET TO AN INTERSECTION WITH THE
XXXXX XXXX XX XXXX XXXX XXXXXX; THENCE WEST ALONG SAID NORTH LINE OF WEST LAKE
STREET, A DISTANCE OF 202.44 FEET TO AN INTERSECTION WITH THE XXXX XXXX XX XXXXX
XXXXX XXXXXX; THENCE SOUTH ALONG SAID XXXX XXXX XX XXXXX XXXXX XXXXXX A DISTANCE
OF 153.96 FEET TO THE POINT OF BEGINNING
PARCEL B:
THE EAST 1 FOOT OF THE WEST 1/2 OF THE EAST 1/2 OF LOT 2 IN SAID BLOCK 35
AFORESAID.
159
[LETTERHEAD OF CHICAGO TITLE AND TRUST COMPANY]
November 30, 1989
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
x/x Xxx Xxxxxx Xxxxxxx
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
Dear Xxxxxxx:
Reference is made to that certain Lease dated July 24, 1989 (the "Lease")
by and between Linpro Chicago Land Limited Partnership, an Illinois Limited
Partnership ("Linpro"), and Chicago Title and Trust Company, an Illinois
corporation ("Chicago Title"), which Lease is being assigned by Linpro to 000
Xxxxx Xxxxx Xxxxxx Limited Partnership ("161"). All defined terms used herein
shall have the same meaning as set forth in the Lease.
With regard to the floor to structural beam clearance height on Lower
Level III, we understand that, notwithstanding anything to the contrary
contained in the Lease or the Exhibits or Attachments thereto, 161 will provide
a floor to structural beam clearance of 8 feet 8 inches throughout the Vault
Space at a cost to Chicago Title not to exceed $20,000. The foregoing will
resolve the dispute which we referred to in the estoppel certificate delivered
to you (in escrow) in connection with your construction financing. Upon your
acceptance of this letter, the last sentence of paragraph 4 of such estoppel
certificate shall be deemed deleted and of no further, force or effect.
160
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
November 30, 1989
Page -2-
Please be advised that we will provide you with written notice by
December 8, 1989 of our decision with regard to additional Vault Space;
provided, however, it is our current intent to exercise our Vault Space
expansion rights, and take approximately a total of 18,000 square feet of Vault
Space. We agree to restrict the use of all Vault Space in excess of 13,500
square feet to document storage, filing and other similar uses. As provided in
the Lease Chicago Title may use the first 13,500 square feet of Vault Space for
office uses. All other items of the Lease shall remain in full force and effect.
If the foregoing is your understanding and agreement please so
indicate by executing and delivering the duplicate copy of this letter to the
undersigned.
Sincerely,
Chicago Title and Trust Company
By: /s/ [ILLEGIBLE]
-----------------------------
Its: Senior Vice President
-------------------------
cc: Xxxxxxx X. Xxxxxxx
A. Xxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Silver
Xxxxxx Xxxxx
Agreed to and Accepted this
30th day of November, 1989
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
By: Linpro Chicago Property I
Limited Partnership
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx,
a managing general partner
161
[LETTERHEAD OF CHICAGO TITLE AND TRUST COMPANY]
December 1, 1989
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
x/x Xxx Xxxxxx Xxxxxxx
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Dear Xxxxxxx:
Reference is made to that certain Lease dated July 24, 1989 by and between
Linpro Chicago Land Limited Partnership, an Illinois limited partnership
("Linpro"), and Chicago Title and Trust Company, an Illinois corporation
("Chicago Title"), as assigned by Linpro to 000 Xxxxx Xxxxx Xxxxxx Limited
Partnership (161) (such Lease, as so assigned is herein referred to as the
Lease"). All defined terms used herein shall have the meanings ascribed to them
in the Lease.
Section 55 of the Lease provided that the Personal Guaranty and Letter of
Credit shall be delivered by Landlord upon the satisfaction (or waiver) of all
contingencies described in Section 52 of the Lease (which must occur on or
before December 1, 1989) and the exchange of the $500,000 deposit. The parties
hereto agree that all such contingencies were satisfied on December 1, 1989 and
that the Lease is hereby amended to provide that the aforesaid delivery and
exchange must occur no later than December 8.
Chicago Title agrees that the Letter of Credit may be issued by LaSalle
National Bank ("LaSalle"); provided, however, in the event, that at any time
when the Letter of Credit is outstanding, (x) LeSalle's consolidated assets as
reported by Xxxxx Bankwatch fall below $3,050,000,000, (y) LaSalle is rated less
than A/B by Xxxxx Bankwatch, or (z) LaSalle ceases to be a federally insured
bank, Chicago Title, upon notice to 161, may require that the Letter of Credit
be replaced, at Landlord's expense, by a letter of credit issued by a bank
meeting the criteria set forth in Section 55(c) of the Lease.
162
December 1, 1989
Page 2
If the foregoing is your understanding and agreement, please so indicate
by executing and delivering the duplicate copy of this letter to the
undersigned.
Sincerely,
Chicago Title and Trust Company
By: /s/ [ILLEGIBLE]
--------------------------------------
Its: Senior Vice President and Chief
Financial Officer
Agreed to and Accepted this
1st day of December, 1989
000 Xxxxx Xxxxx Xxxxxx Limited Partnership
By: Linpro Chicago Property I
Limited Partnership
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx,
a managing general director
6030r
163
[LETTERHEAD OF CHICAGO TITLE AND TRUST COMPANY]
December 6, 1989
VIA MESSENGER VIA TELECOPY
000 Xxxxx Xxxxx Xxxxxx Limited 000 Xxxxx Xxxxx Xxxxxx Limited
Partnership Partnership
c/o The Linpro Company The Linpro Company
00 Xxxx Xxxxxx Xxxxx 000 Xxxxxx Xxxx
Xxxxx 0000 Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx Attention: Xx. Xxxx Xxxxxxx
VIA TELECOPY
000 Xxxxx Xxxxx Xxxxxx Limited
Partnership
c/o Argus Realty Services, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Gentlemen:
Reference is made to that certain Lease dated July 24, 1989 by and between
Linpro Chicago Land Limited Partnership, an Illinois limited partnership
("Linpro"), and Chicago Title and Trust Company, an Illinois corporation
("Chicago Title"), as assigned by Linpro to 000 Xxxxx Xxxxx Xxxxxx Limited
Partnership ("161") (such Lease, as so assigned and as amended is herein
referred to as the "Lease"). All defined terms used herein, unless otherwise
defined herein, shall have the meanings ascribed to them in the Lease.
Please be advised that Chicago Title hereby exercises its right to lease
all of the Additional Vault Space on the same floor
164
December 6, 1989
Page 2
as the Original Vault Space, in accordance with Section 64(a) of the Lease, thus
increasing the total Vault Space to approximately 18,000 square feet.
Very truly yours,
CHICAGO TITLE AND TRUST COMPANY
By: /s/ [ILLEGIBLE]
---------------------------------
Its Senior Vice President and
General Counsel
----------------------------
cc: Xxxxxxx X. Xxxxxx, Esq. (Via Telecopy)
Xxx Xxx Xxxxxxxx, Esq. (Via Telecopy)
Xxxxx X. Xxxx, Xx., Esq. (Via Telecopy)
165
[LETTERHEAD OF CHICAGO TITLE AND TRUST COMPANY]
December 8, 1989
VIA MESSENGER VIA TELECOPY
000 Xxxxx Xxxxx Xxxxxx Limited 000 Xxxxx Xxxxx Xxxxxx Limited
Partnership Partnership
c/o The Linpro Company The Linpro Company
00 Xxxx Xxxxxx Xxxxx 000 Xxxxxx Xxxx
Xxxxx 0000 Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx Attention: Xx. Xxxx Xxxxxxx
VIA TELECOPY
000 Xxxxx Xxxxx Xxxxxx Limited
Partnership
c/o Argus Realty Services, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Gentlemen:
Reference is made to that certain Lease, dated July 24, 1989 by and
between LINPRO Chicago Land Limited Partnership, an Illinois Limited
Partnership, (LINPRO), and Chicago Title and Trust Company, an Illinois
Corporation ("Chicago Title"), as assigned by LINPRO to 000 Xxxxx Xxxxx Xxxxxx
Limited Partnership ("161") (such Lease, as so assigned and as amended is herein
referred to as the "Lease"). All defined terms used herein, unless otherwise
defined herein, shall have the meanings ascribed to them in the Lease.
166
December 8, 1989
Page 2
Please be advised that Chicago Title hereby elects to have the third pair
of escalators installed between the third and fourth floors in accordance with
Section 41 of the Lease.
Chicago Title has identified the location of the escalators via drawings
transmitted to LINPRO on December 7, 1989.
Very Truly yours,
CHICAGO TITLE AND TRUST COMPANY
By: /s/ [ILLEGIBLE]
---------------------------------
Its Senior Vice President and
General Counsel
----------------------------
cc: Xxxxxxx X. Xxxxxx, Esq.
Xxx Xxx Xxxxxxxx Esq.
Xxxxx X. Xxxx, Xx., Esq.
167
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease ("Amendment") dated as of Dec 23, 1992, is
made by and between 000 XXXXX XXXXX XXXXXX LIMITED PARTNERSHIP, a Delaware
limited partnership ("Landlord"), and CHICAGO TITLE AND TRUST COMPANY, an
Illinois corporation ("Tenant").
RECITALS:
A. Linpro Chicago Land Limited Partnership ("Linpro Land") and Tenant
heretofore entered into that certain Lease (the "Lease") dated as of July 24,
1989, by and between Landlord and Tenant and covering approximately 248,000
square feet of Rentable Area in the Building, as amended as described below.
B. Landlord, the beneficiary under LaSalle National Bank Trust Agreement
dated November 11, 1989, and known as Trust No. 114995, has succeeded to the
interest of Linpro Land under the Lease.
C. The Lease has been amended by First Amendment to Lease dated November
17, 1989, and by letter agreements dated October 31, 1989, November 17, 1989,
November 30, 1989, December 1, 1989, December 6, 1989, and December 8, 1989,
between Landlord (or its predecessor) and Tenant, copies of which are attached
hereto. The term "Lease" shall mean the Lease, as heretofore amended.
D. Landlord and Tenant now desire to amend the Lease in the manner
hereinafter set forth to, among other things, include additional space in the
Premises and to substitute space in the mid-rise portion of the Building for the
Top Floor.
WITNESSETH:
NOW, THEREFORE, for and in consideration of the covenants and agreements
contained in this Amendment and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. Definitions. All capitalized or defined terms in this Amendment which
are not defined in this Amendment will have the same meanings as are ascribed to
such terms in the Lease. As used in this Amendment and in the Lease, the
following terms shall have the meanings set forth below:
(a) "Additional Space" means the space depicted on Exhibit B-1
hereto located on the tenth (10th) floor of the Building.
(b) "Additional Space Rent Commencement Date" means the date which
is nine (9) months from the Low-Rise Commencement Date.
168
(c) "Initial Office Premises" is amended to mean the "Original
Office Space" and the "Additional Space." The Original Office Space
includes the Xxx-Xxxx Xxxxxxxxxx Xxxxx.
(x) "Xxx-Xxxx Xxxxxxxxxx Xxxxx" means the thirty-second (32nd) floor
of the Building.
2. Lease of Additional Space. Landlord hereby leases to Tenant, and Tenant
hereby leases from Landlord the Additional Space for a term commencing on the
Low-Rise Commencement Date and ending on the same date as the termination date
for the lease of the Original Premises, as extended, subject to earlier
termination as provided in the Lease. All the terms of the Lease apply to the
lease of Additional Space, except as provided in this Amendment.
3. Substitution of Mid-Rise Substitute Floor for Top Floor. Landlord and
Tenant agree that the Mid-Rise Substitute Floor shall be substituted for and
leased by Tenant in place of the Top Floor. All provisions of the Lease relating
to the Top Floor shall be applicable to the Mid-Rise Substitute Floor, except as
provided in this Amendment, and all references to the Top Floor shall be to the
Mid-Rise Substitute Floor.
(a) References in Section 35 and 51(c) to the substantial completion
or state of construction of the high-rise portion of the Building or the
Top Floor shall be to the mid-rise portion of the Building and Mid-Rise
Substitute Floor, respectively.
(b) References to the High-Rise Access Date shall be to the Mid-Rise
Access Date, which shall be deemed to be June 1, 1992, notwithstanding
anything to the contrary in the Lease. References to the High-Rise
Commencement Date shall be to the Mid-Rise Commencement Date, which shall
be deemed to be November 1, 1992, notwithstanding anything to the contrary
in the Lease. References to the High-Rise Rent Commencement Date shall be
to the Mid-Rise Rent Commencement Date, which shall be deemed to be June
15, 1993, notwithstanding anything to the contrary in the Lease.
(c) Rentable Area of the Mid-Rise Substitute Floor is deemed to be
18,963 square feet.
(d) The decimal used for computing Tenant's Proportionate Share
attributable to the Mid-Rise Substitute Floor is .0186.
4. Base Rent.
(a) Base Rent for the Additional Space shall be payable at the same
rate for the same periods as for the Original Office Space within the
low-rise portion of the Building, except that Base Rent for Additional
Space shall not commence until the Additional Space Rent Commencement
Date.
2
169
(b) Base Rent for the license to use the Loading Dock Bay shall be
payable annually in advance commencing on each October 1, at the rate of
$17,500 for the year commencing October 1, 1992. Base Rent for the Loading
Dock Bay shall be payable annually in advance each year thereafter on each
October 1 and Base Rent shall be increased each year by $500. If the
Expiration Date is other than a September 30, Base Rent for the Loading
Dock Bay for the year in which the Expiration Date falls shall be prorated
for the period prior to the Expiration Date.
(c) Section 1(b) of the Lease is amended to delete the paragraph
relating to Base Rent for the Top Floor (on page 4) and replacing it with
the following:
"Base Rent for the Mid-Rise Substitute Floor will commence on the
Mid-Rise Rent Commencement Date. Base Rent per square foot of
Rentable Area per year for the Mid-Rise Substitute Floor for the
initial Term will be:
Lease Years Base Rent
----------- ---------
Lease Years 1 - 4 $16.50
Lease Years 5 - 8 $20.50
Lease Years 9 - 12 $24.50
Lease Years 13 - 16 $28.50
Lease Years 17 - 20 $33.50"
5. Additional Rent for Additional Space. Tenant shall pay Additional
Rent with respect to the Additional Space as provided in Section 2 of the Lease.
6. Location of Premises. Pursuant to Section 1(a) of the Lease, Landlord
and Tenant are attaching floor plans identifying the precise location of the
Original Premises.
(a) Original Office Space is depicted on the floor plans attached as
Exhibit B-2 hereto (labeled X-0-0, X-0-0, X-0-0, X-0-0 and B-2-5).
(b) Original Vault Space and other Vault Space which Tenant has
elected to lease as of the date hereof is depicted on the floor plans
attached as Exhibit B-3 hereto.
(c) Lobby Space is depicted on Exhibit B-4 hereto.
(d) Exhibit B to the Lease consists of Exhibits X-0, X-0, X-0 and
B-4 and depicts the Initial Premises. References in Section 1(a) and
elsewhere in the Lease to the location of the Lobby Space, Vault Space or
Original Office Space as being as shown on Attachments 1, 10 or 20 (being
schematic drawings) shall refer to Exhibit B instead.
3
170
7. Rentable Area.
(a) Rentable Area of the Original Office Space is deemed to be
251,120 square feet; provided that for purposes of the calculation of the
Chicago Title Participation Percent it shall be 248,000.
(b) Rentable Area of the Original Vault Space and other Vault Space
included in the Premises is deemed to be 16,370.5 square feet (which shall
supersede any area shown in the letter agreement dated December 6, 1989).
(c) Rentable Area of the Lobby Space is deemed to be 1,500 square
feet.
(d) Rentable Area of the Additional Space is deemed to be 13,655.7
square feet.
(e) Rentable Area of the Initial Office Premises is 264,775.7, being
the sum of the Rentable Area of the Additional Space and the Original
Office Space.
8. Tenant's Proportionate Share. Tenant's Proportionate Share (including
the Original Office Space and Additional Space) is deemed to be .2722, being the
sum of (a) .2582 (for Original Office Space) plus (b) .0140 (for the Additional
Space).
9. Post-Occupancy Expansion Space. Landlord has previously identified
Post-Occupancy Expansion Space as being space on floors 11, 12 and 13, as
depicted on Exhibit J hereto. Rentable Area of Post-Occupancy Expansion Space on
the 11th floor is 28,814.2, on the 12th floor is 24,678.7 and on the 13th floor
is 25,067.1.
10. Landlord's Allowance. Landlord's Allowance described in Section 37
shall be applicable to the Additional Space and Mid-Rise Substitute Floor, being
part of the Initial Premises.
11. Low-Rise and Mid-Rise Access Date. The Low-Rise Access Date is agreed
to be February 3, 1992. The Mid-Rise Access Date is agreed to be June 1, 1992.
12. Low-Rise Commencement Date and Low-Rise Rent Commencement Date. The
Low-Rise Commencement Date is agreed to be October 1, 1992, and the Low-Rise
Rent Commencement Date is agreed to be November 1, 1992.
13. Mid-Rise Commencement Date and Mid-Rise Rent Commencement Date. The
Mid-Rise Commencement Date is agreed to be November 1, 1992. The Mid-Rise Rent
Commencement Date means June 15, 1993.
14. Parking. The phrase "Original Office Premises" used in Section 48 is
corrected to be the "Original Office Space." Tenant shall be entitled to use up
to thirty-one (31) parking spaces as a result of its lease of the Additional
Space,
4
171
leaving a balance of nineteen (19) spaces to which Tenant may be entitled under
the circumstances set forth in Section 48 upon leasing more office space. The
number of spaces which Tenant is entitled to use is subject to reduction in case
of termination of its lease of any part of the Office Premises pursuant to
Section 48. Parking spaces shall be located as shown on new Attachment 9
attached hereto, which supersedes Attachment 9 attached to the Lease. Tenant has
advised Landlord that Tenant elects to use two (2) spaces during 1992 and 1993
and shall execute parking agreements in connection with such parking. On or
before each anniversary of the Low-Rise Commencement Date Tenant shall notify
Landlord on the number of spaces it elects to use during the next calendar year.
Once Tenant has elected a number of spaces to use for a year it shall pay for
such spaces for such year on the basis provided in Section 48 of the Lease and
shall not increase or decrease the number of spaces it uses during such year.
However, Tenant may either increase or decrease the number of spaces it uses in
any subsequent calendar year; provided, however, the number of parking spaces
shall not exceed the permitted maximum described above in this Section 14.
15. Delivery of Possession of Additional Space. The provisions of Sections
4, 6, 50, 51 and 62 shall apply to Landlord's delivery of possession of the
Additional Space, as part of the Initial Office Premises.
16. Pre-Occupancy Expansion Space. Tenant has not elected to lease
Pre-Occupancy Expansion Space and the option granted to Tenant under Section 39
has expired.
17. Janitorial. Tenant has elected not to contract with its own janitor to
provide janitorial services under Section 5(c) of the Lease for the period to
and including September 30, 1993; provided, however, Tenant has not waived its
right to provide its own cleaning services if Tenant is dissatisfied with
cleaning and janitorial services of Landlord's contractor, on the terms set
forth in Section 5(c).
18. Escalators. Pursuant to Section 41 of the Lease, by letter dated
December 8, 1989 Tenant has elected to have Landlord construct a third pair of
escalators, therefore, Landlord is not obligated to pay the lobby allowance
described in Section 41.
19. Section 66 Deleted. Section 66 of the Lease is hereby deleted.
20. Real Estate Brokers.
(a) Tenant represents and warrants that Tenant has directly dealt
with and only with Equis Corporation ("Equis") (whose commission, if any,
shall be paid by Landlord pursuant to separate agreement dated November
28, 1988, as amended by agreements dated May 5, 1989, June 30, 1989 and
November 1, 1989) as broker in connection with this Amendment and lease of
Additional Space and the substitution of Mid-Rise Substitute Floor and
agrees to indemnify and hold Landlord, and the Building Manager and
leasing agent of the Real Property harmless from all claims, losses,
liabilities, damages, liens, costs and expenses including without
limitation reasonable attorneys' fees, arising from any claims or demands
of any other broker or
5
172
brokers or finders or Equis other than pursuant to the aforesaid brokerage
agreement for any commission due or alleged to be due such other broker or
brokers or finders or Equis other than pursuant to the aforesaid brokerage
agreement claiming to have dealt with Tenant in connection with this Lease
or with whom Tenant hereafter deals or whom Tenant hereafter employs.
(b) Landlord represents and warrants to Tenant that Landlord has not
dealt with any broker other than Equis in connection with this Amendment
and lease of Additional Space and the substitution of the Mid-Rise
Substitute Floor and agrees to indemnify and hold Tenant harmless from and
against any and all claims, losses, liabilities, damages, liens, costs and
expenses, including, without limitation, reasonable attorneys' fees
arising from any claims or demands of Equis arising pursuant to the
aforesaid brokerage agreement or any other broker or brokers or finders
for any commission due or alleged to be due Equis arising pursuant to the
aforesaid brokerage agreement or such other broker or brokers or finders
claiming to have dealt with Landlord in connection with this Lease or with
whom Landlord hereafter deals or whom Landlord hereafter employs.
21. Entire Agreement. The entire agreement of the parties with respect to
the Additional Space, Mid-Rise Substitute Floor and other matters contained in
this Amendment is set forth in this Amendment and in the Lease, as amended
hereby. No prior agreement or understanding with respect to such Additional
Space (including the January 31, 1992, letter agreement) or the Mid-Rise
Substitute Floor (including the June 19, 1992 letter agreement) or other matters
shall be valid or of any force or effect and are merged herein, and Tenant
acknowledges that Landlord has not made and Tenant has not relied on any
representation or warranty by Landlord in connection with the lease of the
Additional Space or Mid-Rise Substitute Floor, except as set forth in this
Amendment.
22. Lease in Full Force and Effect. Except as herein provided, all the
terms and provisions of the Lease shall remain in full force and effect, and are
hereby ratified and confirmed, including, without limitation, the terms of
Section 34 of the Lease which shall apply to the Lease, as amended by this
Amendment.
6
173
IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be
duly executed by their authorized representatives as of the date first above
written.
LANDLORD:
000 XXXXX XXXXX XXXXXX LIMITED
PARTNERSHIP, a Delaware limited partnership
By: LINPRO CHICAGO PROPERTY I
LIMITED PARTNERSHIP, an Illinois
limited partnership, General Partner
By: /s/ [ILLEGIBLE]
-----------------------------------
Managing General Partner
By:
-----------------------------------
Managing General Partner
By: XXXXX STREET GENERAL
CORPORATION B.V., a Netherlands
corporation
By: /s/ [ILLEGIBLE]
-----------------------------------
Managing Director
By: /s/ [ILLEGIBLE]
-----------------------------------
Managing Director
TENANT:
CHICAGO TITLE AND TRUST COMPANY,
an Illinois corporation
By: /s/ [ILLEGIBLE]
----------------------------------------
Its: Sr. V.P.
SEE RIDER ATTACHED HERETO AND MADE A PART HEREOF:
LA SALLE NATIONAL TRUST, N.A. as Trustee under
Trust No. 114995 and not personally
By /s/ [ILLEGIBLE] Vice President
Attest /s/ Xxxxx X. Xxxxx Assistant Secretary
7
174
RIDER ATTACHED TO AND MADE A PART OF SECOND AMENDMENT TO LEASE DATED 12-23-92
This Second Amendment to LEASE is executed by LA SALLE NATIONAL TRUST, N.A., not
personally but as Trustee as aforesaid, in the exercise of the power and
authority conferred upon and vested in it as such Trustee, and under the express
direction of the beneficiaries of a certain Trust Agreement dated 11-17-89 and
known as Trust No. 114995 at LA SALLE NATIONAL TRUST, N.A., to all provisions of
which Trust Agreement this LEASE is expressly made subject. It is expressly
understood and agreed that nothing herein or in said LEASE contained shall be
construed as creating any liability whatsoever against said Trustee personally,
and in particular without limiting the generality of the foregoing, there shall
be no personal liability to pay any indebtedness accruing hereunder or to
perform any covenants, either express or implied, herein contained, or to keep,
preserve or sequester any property of said Trust, and that all personal
liability of said Trustee of every sort, if any, is hereby expressly waived by
said Lessee, and that so far as said Trustee is concerned the owner of any
indebtedness or liability accepting hereunder shall look solely to the premises
hereby leased for the payment thereof. It is further understood and agreed that
said Trustee has no agents or employees and merely holds naked legal title to
the property herein described; that said Trustee has no control over, and under
this LEASE assumes no responsibility for (1) the management or control of such
property, (2) the upkeep, inspection, maintenance or repair of such property (3)
the collection of rents or rental of such property, or (4) the conduct of any
business which is carried on upon such premises. Trustee does not warrant,
indemnify, defend title nor is it responsible for any environmental damage.
175
SUPPLEMENT TO LEASE
CONFIRMING LEASE TERM
THIS LEASE SUPPLEMENT is made the 13th day of July, 1993 by and between
LASALLE NATIONAL BANK, not personally but solely as Trustee under Trust
Agreement dated November 17, 1989 and know as Trust No. 114995, as Landlord, and
Chicago Title and Trust Company an Illinois corporation, as Tenant.
RECITALS
A. By lease ("Lease") dated July 24, 1989, between Landlord and Tenant,
Landlord leased to the Tenant and the Tenant leased from Landlord, for the Term
and upon the terms and conditions therein set forth, certain space on the 2-10,
32 floors of the building located at 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxx.
Capitalized terms used herein shall have the meanings set forth in the Lease.
B. The Lease provided that the parties shall execute a supplement to the
Lease confirming the Commencement Date of the Term, if the actual Commencement
Date differs from the Commencement Date set forth in the Lease.
The parties hereto agree as follows:
1. The Commencement Date shall be October 1, 1992.
2. The Term shall expire on September 30, 2012, being the Expiration Date,
unless sooner terminated.
3. This instrument incorporates Section 34 of the Lease as if fully set
forth herein. This instrument is executed by LaSalle National Bank, not
personally but solely as Trustee, as aforesaid, in the exercise of the power and
authority conferred upon and vested in it as such Trustee. All the terms,
provision, stipulations, covenants and conditions to be performed by LaSalle
National Bank are undertaken by it solely as Trustee, as aforesaid, and not
individually, and no personal liability shall be asserted or be enforceable
against LaSalle National Bank by reason of any of the terms, provisions,
stipulations, covenants or statements contained in this instrument.
LANDLORD:
LASALLE NATIONAL BANK, not personally
but as Trustee, aforesaid
By: /s/ [ILLEGIBLE]
----------------------------------
Its: [ILLEGIBLE]
----------------------------------
TENANT:
CHICAGO TITLE AND TRUST
----------------------------------
By: /s/ [ILLEGIBLE]
----------------------------------
Its: VP, REAL ESTATE
----------------------------------
ATTEST:
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Its: [ILLEGIBLE]
----------------------------------
"OFFICIAL SEAL"
Xxxxxx X. Xxxxx
Notary Public, State of Illinois
My Commission Expires 6/30 [ILLEGIBLE]
176
[LETTERHEAD OF CHICAGO TITLE AND TRUST COMPANY]
September 24, 1996
Mr. Xxxx Xxxx
Equity Office Properties, L.L.C.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
RE: Lobby Space, Chicago Title & Trust Center
Dear Xxxx:
IAW Paragraph 46(P) of the lease between 000 Xxxxx Xxxxx Xxxxxx Limited
Partnership (as successor to Linpro Chicago Land Limited Partnership) and
Chicago Title and Trust Company, you are hereby advised that this correspondence
will serve as a "Lobby Termination Notice."
The "Lobby Termination Date" will be September 30, 1997. Via separate
correspondence, please acknowledge receipt of this notice and provide a
calculation supporting the amount of the termination payment due on September
30, 1997.
Sincerely,
/s/ Xxxxx X. Xxxxxx
----------------------------
Xxxxx X. Xxxxxx
Vice-President, Real Estate
cc: Xxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
