LEASE TR 120 S. LASALLE CORP. Landlord to THE PRIVATEBANK AND TRUST COMPANY Tenant Floors 2, 3 and 6 and portions of floors 1 and 4 Chicago, Illinois Dated: April 25, 2008
Exhibit
10.6
_____________________
TR
120 X. XXXXXXX CORP.
Landlord
to
THE
PRIVATEBANK AND TRUST COMPANY
Tenant
Floors
2, 3 and 6 and portions of floors 1 and 4
000
Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx,
Xxxxxxxx
Dated: April
25, 2008
TABLE OF
CONTENTS
Section Page
|
1
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CERTAIN
PROVISIONS AND DEFINITIONS.
|
1
|
|
2
|
10
|
|
|
3
|
LANDLORD'S
WORK; TENANT'S WORK.
|
11
|
|
3.1
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Landlord's
Work. .
|
11
|
|
3.2
|
Condition
of Leased Premises. .
|
11
|
|
3.3
|
Tenant's
Work. .
|
11
|
|
4
|
PAYMENT
OF RENT.
|
11
|
|
5
|
MONTHLY
BASE RENT.
|
12
|
|
6
|
ADDITIONAL
RENT.
|
12
|
|
6.1
|
Additional
Rent.
|
12
|
|
6.2
|
Operating
Expense Adjustments.
|
13
|
|
6.3
|
Expense
Adjustment..
|
13
|
|
(A)
|
Upper
Level Premises Expense Adjustment..
|
13
|
|
(B)
|
Retail
Premises Expense Adjustment.
|
14
|
|
6.4
|
Tax
Adjustment..
|
15
|
|
(A)
|
Upper
Level Premises Tax Adjustment..
|
15
|
|
(B)
|
Retail
Premises Tax Adjustment..
|
15
|
|
(C)
|
Right
to Contest Taxes..
|
16
|
|
6.5
|
Delay
in Computing Additional Rent.
|
16
|
|
6.6
|
Review
of Books and Records..
|
17
|
|
6.7
|
Controllable
Operating Expense Cap..
|
18
|
|
7
|
USE
OF LEASED PREMISES.
|
18
|
|
7.1
|
Use
of Leased Premises..
|
18
|
|
7.2
|
Parking.
|
18
|
|
.7.3
|
Compliance
with Requirements.
|
20
|
|
8
|
SERVICES.
|
21
|
|
8.1
|
General
Description of Services.
|
21
|
|
8.2
|
Communications.
|
23
|
|
8.3
|
Extra
or Additional Services..
|
24
|
|
8.4
|
Holidays.
|
25
|
|
8.5
|
Interruption
of Services.
|
25
|
|
8.6
|
Tenant's
Cooperation.
|
25
|
|
8.7
|
Excessive
Use of Building Systems.
|
26
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|
8.8
|
Security.
|
26
|
|
9
|
REPAIRS
AND MAINTENANCE.
|
27
|
|
9.1
|
Tenant's
Repairs and Maintenance Generally
|
27
|
|
9.2
|
Specific
Items of Tenant Repair and Maintenance.
|
28
|
|
9.3
|
Landlord's
Maintenance and Repair..
|
28
|
|
9.4
|
Reservation
of Rights.
|
30
|
|
9.5
|
Hazardous
Materials.
|
30
|
|
9.6
|
Biological
Toxins
|
31
|
|
10
|
ALTERATIONS.
|
31
|
|
10.1
|
Generally.
|
31
|
|
10.2
|
Removal.
|
32
|
|
11
|
COVENANT
AGAINST LIENS.
|
33
|
|
12
|
INSURANCE
AND SUBROGATION.
|
34
|
|
12.1
|
Tenant's
Insurance.
|
34
|
|
12.2
|
Waiver
of Subrogation.
|
35
|
|
12.3
|
Landlord's
Insurance.
|
35
|
|
12.4
|
Avoid
Action Increasing Rates.
|
37
|
|
13
|
FIRE
OR CASUALTY.
|
37
|
|
13.1
|
Generally.
|
37
|
|
13.2
|
Right
To Abatement. .
|
38
|
|
13.3
|
Repair
Obligations.
|
38
|
|
13.4
|
Landlord's
Right to Proceeds of Tenant's Insurance..
|
38
|
|
14
|
WAIVER
OF CLAIMS; INDEMNIFICATION.
|
39
|
|
15
|
NONWAIVER.
|
41
|
|
16
|
CONDEMNATION.
|
41
|
|
17
|
ASSIGNMENT
AND SUBLETTING.
|
42
|
|
17.1
|
General.
|
42
|
|
17.2
|
Additional
Receipts.
|
45
|
|
17.3
|
Other
Limitations.
|
45
|
|
17.4
|
Lease
Assumption; Subtenant Attornment
|
45
|
|
17.5
|
Intentionally
Omitted.
|
|
|
18
|
SURRENDER
OF POSSESSION.
|
46
|
|
19
|
HOLDING
OVER.
|
47
|
|
20
|
ESTOPPEL
CERTIFICATE.
|
47
|
|
21
|
MORTGAGE
OR GROUND LEASE BY LANDLORD.
|
48
|
|
21.1
|
Subordination.
|
48
|
|
21.2
|
Foreclosure.
|
49
|
|
21.3
|
Superiority
|
49
|
|
21.4
|
Successor
Liability
|
46
|
|
21.5
|
Recording.
|
49
|
|
21.6
|
Merger
of Interest.
|
49
|
|
21.7
|
Right
To Cure.
|
50
|
|
22
|
CERTAIN
RIGHTS RESERVED BY LANDLORD.
|
50
|
|
22.1
|
Right
of Access.
|
50
|
|
22.2
|
Pass
Keys; Tenant's Secured Areas.
|
50
|
|
22.3
|
Window
Coverings.
|
51
|
|
22.4
|
Heavy
Items.
|
51
|
|
22.5
|
Moving
Items.
|
51
|
|
22.6
|
Deliveries.
|
51
|
|
22.7
|
Showing
of Leased Premises.
|
51
|
|
22.8
|
Pipes,
Ducts, Wiring, etc.
|
51
|
|
22.9
|
Inspection.
|
51
|
|
22.1
|
Right
To Conduct Business
|
52
|
|
22.11
|
Remodeling.
|
52
|
|
22.12
|
Naming;
Signage.
|
52
|
|
22.13
|
Energy/Natural
Resources Conservation.
|
52
|
|
22.14
|
Light
Court
|
52
|
|
22.15
|
Non-Smoking
Facility
|
52
|
|
23
|
RULES
AND REGULATIONS.
|
53
|
|
24
|
DEFAULT
AND REMEDIES.
|
53
|
|
24.1
|
Default
and Landlord's Remedies.
|
53
|
|
24.2
|
Attorneys'
Fees.
|
57
|
|
24.3
|
Rights
Cumulative.
|
57
|
|
24.4
|
Late
Payments.
|
57
|
|
25
|
COVENANT
OF QUIET ENJOYMENT.
|
58
|
|
26
|
REAL
ESTATE BROKERS.
|
58
|
|
27
|
INTENTIONALLY
OMITTED.
|
58
|
|
28
|
TENANT'S
EXCLUSIVE RIGHTS.
|
58
|
|
28.1
|
Tenant's
Exclusive Use.
|
58
|
|
28.2
|
Name
of Building.
|
59
|
|
28.3
|
Signage
|
60
|
|
29
|
NOTICES.
|
62
|
|
30
|
MISCELLANEOUS.
|
64
|
|
30.1
|
Terms.
|
64
|
|
30.2
|
Binding
Effect.
|
64
|
|
30.3
|
Lease
Contains All Terms.
|
64
|
|
30.4
|
Delivery
For Examination.
|
64
|
|
30.5
|
Prohibition
Against Recording.
|
64
|
|
30.6
|
Captions.
|
64
|
|
30.7
|
Only
Landlord/Tenant Relationship.
|
64
|
|
30.8
|
Application
of Payments.
|
65
|
|
30.9
|
Governing
Law..
|
65
|
|
30.1
|
Partial
Invalidity..
|
65
|
|
30.11
|
Interest.
|
65
|
|
30.12
|
Intentionally
Omitted.
|
65
|
|
30.13
|
Counterparts.
|
65
|
|
30.14
|
Survival.
|
65
|
|
30.15
|
Time
of the Essence.
|
65
|
|
30.16
|
Accord
and Satisfaction
|
65
|
|
30.17
|
Landlord's
Right to Perform Tenant's Duties.
|
66
|
|
30.18
|
Force
Majeure.
|
66
|
|
30.19
|
Confidentiality.
|
66
|
|
30.2
|
Intentionally
Omitted.
|
66
|
|
30.21
|
Advertising.
|
66
|
|
30.22
|
Waiver
of Jury Trial
|
67
|
|
30.23
|
Exhibits;
Schedules.
|
67
|
|
30.24
|
Possession.
|
64
|
|
30.25
|
Financial
Statements.
|
67
|
|
30.26
|
Public
Safety
|
67
|
|
30.27
|
Intentionally
Omitted.
|
68
|
|
30.28
|
USA
Patriot Act and Anti-Terrorism Laws
|
68
|
|
30.29
|
Central
Loop TIF District.
|
68
|
|
30.3
|
Authority.
|
68
|
|
31
|
ADA.
|
69
|
|
32
|
EXCULPATION.
|
70
|
|
33
|
EXPANSION
OPTIONS
|
70
|
|
34
|
RENEWAL
OPTIONS.
|
75
|
|
34.1.
|
Renewal
Options.
|
75
|
|
34.2.
|
Exercise
of Option.
|
75
|
|
34.3.
|
Renewal
Rent
|
75
|
|
34.4.
|
Personal
Option.
|
75
|
|
34.5
|
All
of the Leased Premises
|
75
|
|
34.6
|
Fair
Market Rental Rate.
|
75
|
|
34.7
|
Determination
Procedure.
|
76
|
|
35
|
RETAIL
PREMISES RELINQUISHMENT OPTION.
|
78
|
|
36
|
TERMINATION
OPTION.
|
79
|
|
37
|
UPPER
LEVEL RELINQUISHMENT OPTIONS.
|
80
|
|
38
|
RIGHT
OF FIRST REFUSAL
|
81
|
|
38.1
|
Right
of First Refusal
|
81
|
|
38.2
|
Procedure.
|
81
|
|
38.3
|
Refusal
Notice.
|
82
|
|
38.4
|
All
Refusal Space
|
82
|
|
38.5
|
Delivery
of Refusal Space.
|
83
|
|
38.6
|
Expansion
Options.
|
83
|
|
39
|
RIGHT
OF FIRST OFFER
|
84
|
|
39.1
|
Right
of First Offer.
|
84
|
|
39.2
|
Procedure.
|
85
|
|
39.3
|
First
Offer Notice.
|
85
|
|
39.4
|
All
First Offer Space.
|
85
|
|
39.5
|
Delivery
of First Offer Space.
|
86
|
|
40
|
LANDLORD
DEFAULT.
|
86
|
|
41
|
CONTINGENCY.
|
88
|
Exhibits
|
EXHIBIT
A
|
TOTAL
RENTABLE SQUARE FEET OF LEASED
PREMISES
|
|
EXHIBIT
A-1
|
DEPICTION
OF RETAIL PREMISES
|
|
EXHIBIT
X-0
|
XXXXXXXXX
XX XXXXXX XXXXX PREMISES
|
|
EXHIBIT
A-2
|
DEPICTION
OF UPPER LEVEL PREMISES
|
|
EXHIBIT
B
|
WORKLETTER
|
|
EXHIBIT
C
|
JANITORIAL
SPECIFICATIONS
|
|
EXHIBIT
D
|
RULES
AND REGULATIONS
|
|
EXHIBIT
E-1
|
RETAIL
PREMISES ANNUAL BASE RENT
ADJUSTMENTS
|
|
EXHIBIT
E-2
|
FOURTH
FLOOR PREMISES ANNUAL BASE RENT
ADJUSTMENTS
|
|
EXHIBIT
E-3
|
UPPER
LEVEL PREMISES ANNUAL BASE RENT
ADJUSTMENTS
|
|
EXHIBIT
F
|
SATELLITE
/COMMUNICATIONS SYSTEM
|
|
EXHIBIT
G-1
|
GRAND
BANKING HALL MAINTENANCE STANDARDS
|
|
EXHIBIT
G-2
|
ESCALATOR
MAINTENANCE STANDARDS
|
|
EXHIBIT
H
|
FORM
OF SNDA
|
|
EXHIBIT
I
|
LIST
OF TENANT'S COMPETITORS
|
|
EXHIBIT
J
|
TENANT’S
COMMENCEMENT DATE CONFIRMATION
|
|
EXHIBIT
K-1
|
LOCATION
OF TENANT'S SIGNS
|
|
EXHIBIT
K-2
|
TENANT'S
APPROVED SIGNAGE
|
|
EXHIBIT
L
|
EXPENSE
CAP EXAMPLE
|
EXHIBIT
M LOCATION
OF SUBSTITUTE GARAGE
EXHIBIT
N TENANT'S
ATMS
EXHIBIT
O MEMORANDUM
OF LEASE
EXHIBIT
P GUARANTY
EXHIBIT
Q SEVENTH
FLOOR KITCHEN DEMOLITION
LEASE
THIS LEASE (this "Lease") is
made as of the _______ day of ________________, 2008 ("Effective Date") between
TR 120 X. XXXXXXX CORP., a
Delaware corporation, hereinafter referred to as "Landlord", and THE PRIVATEBANK AND TRUST
COMPANY, an Illinois chartered bank, hereinafter referred to as
"Tenant".
Landlord
and Tenant hereby covenant and agree as follows:
1. CERTAIN
PROVISIONS AND DEFINITIONS.
The
following provisions and definitions are an integral part of this
Lease:
(a) "Additional
Rent": As defined in Article 6.
(b) "Adjustment
Date": January 1 of the calendar year following the Base Year
and each successive January 1 within the Term.
(c) "Adjustment
Year": Each calendar year commencing on an Adjustment
Date.
(d) "Annual
Base Rent": The rent due and payable hereunder for each Lease
Year, which shall be:
|
|
(1)
|
For
the Retail Premises (as defined in Section 1(s) below), an amount equal to
the Rentable Square Feet in the Retail Premises multiplied by the rent per
square foot ("Retail Rent Per Square Foot") for the particular Lease
Year. The Retail Rent Per Square Foot for the first Lease Year
shall be Fifty and 00/100 Dollars ($50.00) and shall adjust thereafter in
accordance with Exhibit E-1
attached hereto ("Retail Premises Annual Base
Rent");
|
|
|
(2)
|
For
the Fourth Floor Premises (as defined in Section 1(s) below), an amount
equal to the Rentable Square Feet in the Fourth Floor Premises multiplied
by the rent per square foot ("Fourth Floor Rent Per Square Foot") for the
particular Lease Year. The Fourth Floor Rent Per Square Foot
for the first Lease Year shall be Sixteen and 00/100 Dollars ($16.00) and
shall adjust thereafter in accordance with Exhibit E-2
attached hereto ("Fourth Floor Premises Annual Base Rent");
and
|
|
|
(3)
|
For
the Upper Level Premises (as defined in Section 1(s) below), an amount
equal to the Rentable Square Feet in the Upper Level Premises multiplied
by the rent per square foot ("Upper Level Rent Per Square Foot") for the
particular Lease Year. The Upper Level Rent Per Square Foot for
the first Lease Year shall be Twenty-Eight and 50/100 Dollars ($28.50) and
shall adjust thereafter in accordance with Exhibit E-3
attached hereto ("Upper Level Premises Annual Base
Rent").
|
The Retail Premises Annual Base Rent,
Fourth Floor Premises Annual Base Rent and Upper Level Premises Annual Base Rent
shall be referred to collectively as "Annual Base Rent". The rent for
any partial month at the beginning of the first (1st) Lease
Year shall be added to and included in the Annual Base Rent for the first
(1st) Lease
Year.
(e) "Base
Year": With respect to Operating Expenses, the Base Year shall
be the Calendar Year 2009. With respect to Taxes, the Base Year shall
be the product of: (i) the 2006 (payable in 2007) assessed value ($23,177,720);
multiplied by (ii) the 2008 (payable in 2009) tax rate; multiplied by (iii) the
2008 (payable in 2009) equalization factor.
(f) "Brokers": Lincoln
Property Company Commercial Inc. (representing Landlord) and Colliers Xxxxxxx
& Kahnweiler Inc. (representing Tenant).
(g) "Building": The
building located at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, together with
all building systems located therein, all improvements from time to time located
on the Land and any area servicing those improvements for which Landlord may
from time to time have obligations, such as adjoining access areas, public
sidewalks and other common areas and special service areas.
(h) "Commencement
Date": January 1, 2009.
(i) "Environmental
Laws": All Federal, state or local laws, statutes, ordinances,
codes, rules, regulations, licenses, authorizations, decisions, orders, and
injunctions, which pertain to health, safety, any Hazardous Materials, or the
environment (including but not limited to ground or air or water or noise
pollution or contamination, and underground or above-ground tanks) and shall
include, without limitation, the Occupational Safety and Health Act, 29 U.S.C.
§§651, et seq.; the Emergency
Planning and Community Rights-to-Know Act, 42 U.S.C. §§11001, et seq.; the Toxic
Substances Control Act, 15 U.S.C. §§2601, et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. §§1801, et seq.; the Resource
Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§6901, et seq., as amended by
the Hazardous and Solid Waste Amendments of 1984; the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42
U.S.C. §§9601, et seq., as amended by
the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"); the Federal
Water Pollution Control Act, 33 U.S.C. §§1251, et seq.; the Clean Air
Act, 42 U.S.C. §§7401, et seq.; the Illinois
Environmental Protection Act, 415 ILCS 5/1, et seq.; the Gasoline
Storage Act, 430 ILCS 15/0.01, et seq.; the Municipal
Code of the City of Chicago; and any other local, state or federal environmental
statutes, and all rules, regulations, orders and decrees now or hereafter
promulgated under any of the foregoing, as any of the foregoing now exist or may
be changed or amended or come into effect in the future.
(j) "Exclusive
Use": A full service financial institution both directly and
through subsidiaries and affiliates; banking, savings and loan and trust
company; mortgage company and mortgage lending; and ATM service.
(k) "Expiration
Date": December 31, 2023.
(l) "Grand
Banking Hall": The area on the Upper Level Premises identified
as the "Grand Banking Hall" on Exhibit A-3 attached
hereto.
(m) "Hazardous
Materials": All substances, whether solid, liquid or gaseous,
which are listed, defined or regulated as "hazardous materials," "hazardous
wastes" or "solid wastes," or are otherwise classified as pollutants or
contaminants or any other similar substances or materials that are now or may
hereafter be included under or regulated by any Environmental Law, or which are
or contain asbestos, radon, any polychlorinated biphenyls, urea formaldehyde
foam insulation, explosive or radioactive materials, or motor fuels or other
petroleum hydrocarbons, or which cause or pose a threat to cause contamination
or a nuisance on the Property or any adjacent property or are a hazard to the
environment or to the health or safety of persons.
(n) "Interest
Rate": As defined in Section 24.4.
(o) "Land": The
land on which the Building is located.
(p) "Landlord's
Work": As defined in Section 3.1.
(q) "Laws": All
Environmental Laws, and all statutes, laws, ordinances, codes, rules and
regulations, orders and directions of public officials or other acts having the
force or effect of law, of all federal, state, county, municipal and other
agencies, authorities or bodies having jurisdiction over the Leased
Premises.
(r) "Lease
Year": If the Commencement Date is the first (1st) day of
a calendar month, the period of twelve (12) consecutive months commencing on the
Commencement Date; if the Commencement Date is not the first (1st) day of
a calendar month, the period commencing on the Commencement Date and ending on
the last day of the twelfth (12th) full
calendar month of the Term; and, in either case, each consecutive twelve (12)
month period thereafter which falls in whole or in part during the
Term.
(s) "Leased
Premises": The Leased Premises consists of the following: (1)
the retail space on the first (1st) floor
of the Building consisting of approximately 13,140 Rentable Square Feet ("Retail
Premises") as depicted on Exhibit A-1 attached hereto
and made a part hereof; (2) that portion of the south side of the fourth (4th) floor
of the Building consisting of approximately 10,343 Rentable Square Feet ("Fourth
Floor Premises") as depicted on Exhibit A-2 attached hereto
and made a part hereof; and (3) the second (2nd) floor
of the Building consisting of approximately 34,189 Rentable Square Feet; the
third (3rd) floor
of the Building consisting of approximately 19,810 Rentable Square Feet; and the
sixth (6th) floor
of the Building consisting of approximately 27,967 Rentable Square Feet
(collectively, the "Upper Level Premises") as depicted on Exhibit A-3 attached hereto
and made a part hereof. The Retail Premises, Fourth Floor
Premises and Upper Level Premises are collectively referred to herein as the
"Leased Premises" and consist of a total of 105,449 Rentable Square Feet, as
more particularly described in Exhibit A. The
Leased Premises shall include any expansion of the Leased Premises pursuant to
Article 33, Expansion Option, Article 38, Right of First Refusal, and Article
39, Right of First Offer of this Lease, if exercised, and the Rentable Square
Feet of the Leased Premises shall be adjusted accordingly. Any
expansion of space of the Leased Premises which is above the first (1st) floor
shall become part of the "Upper Level Premises" and the Rentable Square Feet of
the Upper Level Premises shall be adjusted accordingly.
(t) "Material
Casualty": Damage or destruction which: (i) renders thirty
percent (30%) or more of the Rentable Square Feet of the Building Untenantable
(as defined below); or (ii) renders thirty percent (30%) or more of the entire
Leased Premises inaccessible or impossible to occupy; or (iii) causes any damage
to any portion of the Leased Premises that will require more than three hundred
and sixty-five (365) days to fully repair and restore.
(u) "Monthly
Base Rent": As defined in Article 5.
(v) "Mortgage": As
defined in Article 21.
(w) "Mortgagee": As
defined in Article 21.
(x) "Operating
Expenses": All expenses, costs and disbursements of every kind
and nature (determined for each calendar year on an accrual basis) incurred by
Landlord in connection with the ownership, management, operation, maintenance,
repair and replacement of the Property or in complying with obligations arising
under this Lease and any easements, operating and other agreements affecting the
Property, including, without limitation, (i) wages, salaries, fees, related
taxes, insurance costs, benefits (including amounts payable under medical,
pension and welfare plans and any amounts payable under collective bargaining
agreements) and reimbursement of expenses of and relating to all personnel at
and below the level of general manager of the Building engaged full or part-time
(pro rata on time spent at the Building) in operating, repairing, managing,
replacing and maintaining the Property; (ii) all supplies and materials;
(iii) legal and accounting fees and expenses; (iv) cost of all
utilities for the Building, such as water, sewer, power, fuel, heating (or hot
water for heating), lighting, air conditioning (or chilled water for air
cooling) and ventilating, to the extent not specifically directly allocated to
or paid by Tenant; (v) fees and other charges payable under or in respect
of all maintenance, repair, janitorial, scavenger, building security and other
service agreements for or pertaining to the Property; (vi) costs of all
insurance relating to the Building, its occupancy or operations and the
Property, which is customary for similarly situated office buildings in the
Pertinent Market (as hereinafter defined) (vii) costs of repairs and
maintenance of the Property, including costs which are not capital in nature
required to keep the Building safe or remove hazards therefrom;
(viii) costs of compliance with Laws; and (ix) management fees and
reimbursed expenses of Landlord or Landlord's managing agent and administrative
expenses not borne by Landlord's managing agent (not to exceed three percent
(3%) of total collections). Specifically excluded from Operating
Expenses (to the extent provided below) shall be the following:
(1) Taxes
(provided, however, if Landlord incurs any penalties as a direct result of
Tenant's Default under this Lease, said penalties so incurred shall be payable
directly by Tenant to Landlord immediately upon Landlord's written demand
therefor);
(2) Costs of
improvements to any tenant's premises, or any architectural, engineering or
legal fees, relocation expense or any permit or similar fees or charges
associated with such improvements;
(3) Principal
or interest payments on loans, and other debt costs, including loans secured by
mortgages or trust deeds on the Property, and ground lease payments, if
any;
(4) Costs of
capital improvements, except that Operating Expenses shall include (i) the
cost during the Term, as reasonably amortized by Landlord pursuant to sound
management and accounting principles consistently applied, with interest on the
unamortized amount at the Interest Rate, of any capital improvements which are
intended to reduce any component cost included within Operating Expenses (and
which, at such time, a prudent owner of an office building in downtown Chicago,
Illinois would reasonably determine would be likely to so reduce) and
(ii) the cost of any capital improvements which are intended to keep the
Property in compliance with any and all Laws enacted, or are first interpreted
to apply to the Building, after the date of this Lease; provided, however, that
any capital improvements that are planned or initiated by Landlord prior to the
Commencement Date shall not be included in Operating Expenses;
(5) Depreciation
or amortization of any improvements or equipment, except as specifically set
forth in this Lease;
(6) Costs of
repairs, alterations or replacements caused by casualty losses to the extent of
insurance proceeds collected by Landlord, which Landlord shall use commercially
reasonable efforts to collect, or the insurance proceeds that Landlord would
have collected if Landlord had carried the insurance required of Landlord under
this Lease;
(7) Costs of
repairs, alterations or replacements caused by the exercise of rights of eminent
domain;
(8) Costs and
expenses incurred in connection with advertising, promoting, marketing and
leasing space in the Building, and public relations for the Landlord or
Building, including legal fees for the preparation of leases, tenant allowances,
space planner fees, real estate brokers' leasing commissions and advertising and
promotional expenses, and expenses of any leasing office incurred with regard to
leasing the Building or portions thereof;
(9) Court
costs and legal fees incurred with regard to enforcing the obligations of
tenants under other leases;
(10) Leasing
commissions, attorneys' fees, costs and disbursements and other expenses
incurred in connection with negotiations or disputes with tenants, occupants or
prospective tenants or occupants of the Building;
(11) Costs
incurred due to violation by Landlord of any lease for space in the Building or
any indemnity payments made by Landlord pursuant to any such lease because of a
violation or alleged violation or settlement by Landlord under such
lease;
(12) Any
payments made to subsidiaries of Landlord or entities under common control with
Landlord except if such payments are for services or goods on, to or for the
Building or the Land, and only then to the extent that the cost of such services
and goods are at market rates being paid for such services or goods by owners of
other office buildings in downtown Chicago, Illinois from time to
time;
(13) Any
expense for which Landlord is compensated by proceeds of insurance, which
proceeds Landlord shall use commercially reasonable efforts to
collect;
(14) Any
expense for services or items for which any tenant of the Building (including
Tenant) directly reimburses or is required to reimburse Landlord (expressly
excluding any expense for which Landlord is reimbursed through its inclusion in
Operating Expenses);
(15) Accounting
fees (including those for the preparation of Landlord's income taxes), except
reasonable accounting fees incurred in connection with the ownership, operation
and management of the Property;
(16) Any
lender's fees;
(17) Variable
expenses and all utilities attributable to the operation of that portion of the
first floor of the Building that is being used for retail purposes;
(18) Electricity
exclusively serving the Leased Premises which is separately metered to the
Leased Premises and for which Tenant shall be separately charged;
(19) Costs
or other services or work performed for the singular benefit of another tenant
or occupant;
(20) Costs
incurred in connection with the sale, financing, refinancing, mortgaging, or
other change of ownership of the Building;
(21) Rental
under any ground or underlying lease or leases;
(22) Any
penalty or fine incurred by Landlord due to Landlord's violation of any law and
any interest or penalties due for late payment of Taxes by
Landlord;
(23) Expenses
for any item or service for which Tenant pays directly to a third party or
separately reimburses Landlord;
(24) Any
bad debt loss, rent loss, or reserves for bad debts or rent loss;
(25) Expenses
for the replacement of any item covered under warranty for which money is
collected by Landlord thereunder;
(26) All
costs of purchasing or leasing sculptures, paintings or other works or objects
of art. Notwithstanding the foregoing to the contrary, Operating
Expenses shall include: (i) costs relating to the maintenance of, and insurance
for, objects of art which exist on the Property as of the Effective Date; and
(ii) costs (up to the amount of Landlord's insurance deductible) relating to the
repair of objects of art which exist on the Property as of the Effective Date,
if, and only if, the need for such repairs results from the negligence or
willful misconduct of Tenant or any of Tenant's employees, agents or
contracts;
(27) Landlord's
charitable and political contributions;
(28) Costs
of environmental remediation and costs to comply with Environmental
Laws;
(29) Costs
of Property compliance with the Americans with Disabilities Act or other similar
Laws existing as of the Commencement Date; and
(30) Costs
incurred in the operation, maintenance and ownership of the 183 Monroe Garage
(as hereinafter defined) and other parking concessions.
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Specifically
excluded from Retail Premises Operating Expenses are the
following:
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(i)
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All
costs set forth in items (1) through (30)
above;
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(ii)
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Costs
related to the maintenance, repair and replacement of utility systems that
do not benefit the Retail Premises;
and
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(iii)
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Elevators,
escalators and common areas above or below the first floor of the Building
(unless such common areas contain systems that directly serve the Retail
Premises).
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(y) "Property": The
Building and the Land.
(z) "Rent": All
amounts due under this Lease from Tenant to Landlord, including, without
limitation, Monthly Base Rent and Additional Rent.
(aa) "Rentable
Square Feet": With respect to the Leased Premises, Landlord and Tenant
stipulate and agree that the Rentable Square Feet is 105,449, with respect to
the Upper Level Premises, Landlord and Tenant stipulate and agree that the
Rentable Square Feet is 81,966, and with respect to the Building (areas located
on the 2nd floor
of the Building and above), Landlord and Tenant stipulate and agree that the
Rentable Square Feet is 562,575.
(ab) "Taxes": Each
of the following (determined for each calendar year on a cash basis):
(a) real estate taxes and assessments, both general and special, assessed
or imposed with respect to the Land or the Building; (b) ad valorem taxes
assessed or imposed upon personal property owned by Landlord or Landlord's
managing agent and used in the operation of the Land or the Building;
(c) transit taxes and assessments; (d) sales or use taxes (to the
extent not payable on Operating Expenses); (e) taxes based upon leases or
the receipt of rent which are either supplement to or in lieu of any item
described in (a) through (d) above; and (f) fees, costs and expenses
incurred by Landlord to obtain a reduction of or a limit on the increase in any
of the items (a) through (e) above, regardless of whether or not any such
reduction or limitation is obtained; provided that except as provided above,
Taxes shall not include any inheritance, estate, succession, transfer, gift,
franchise, general net income or capital stock tax imposed upon Landlord or any
other tax imposed or measured by Landlord's income or profit or the Illinois
Personal Property Replacement Tax; and provided further that, except as set
forth in Section 30.29, Taxes for any particular Adjustment Year shall be
reduced, after deducting any reasonable, out-of-pocket expenses actually
incurred by Landlord in pursuing such reduction, by any abatement, reduction,
credit or refund received by Landlord during the Term relating to such
Adjustment Year. In determining the amount of Taxes for any
Adjustment Year, the amount of special assessments to be included shall be
limited to the amount of the installment (plus any interest payable thereon) of
such special assessment required to be paid during such Adjustment Year had
Landlord elected to have such special assessment paid over the maximum period of
time permitted by law. Except as provided in the preceding sentence,
all references to Taxes "for" a particular Adjustment Year or Base Year, as the
case may be, shall be deemed to refer to the amount of Taxes actually payable
during such Adjustment Year without regard to when such Taxes are levied or
assessed. In determining the amount of Taxes for any Adjustment Year
or Base Year, the amount of Taxes attributable to the portion of the first floor
of the Building that is being used during said Adjustment Year or Base Year, as
the case may be, for retail purposes shall be excluded from said
determination.
(ac) "Tenant's
Proportionate Share": Tenant's Upper Level Premises
Proportionate Share (as defined below) and Tenant's Retail Premises
Proportionate Share (as defined below) shall be referred to together herein as
"Tenant's Proportionate Share").
"Tenant's
Upper Level Premises Proportionate Share" shall be deemed to be the
percentage obtained by dividing the number of Rentable Square Feet of the Upper
Level Premises, from time to time, by the number of Rentable Square Feet of
non-retail, space in the Building above the first floor, from time to
time. Provided the Upper Level Premises consist of the number of
Rentable Square Feet in Exhibit
A, Tenant's Upper Level Premises Proportionate Share is 14.57% (81,966 /
562,575).
"Tenant's
Retail Premises Proportionate Share" shall be deemed to be the percentage
obtained by dividing the number of Rentable Square Feet of the Retail Premises,
from time to time, by the number of Rentable Square Feet of space in the
Building, from time to time. Provided the Retail Premises consist of
the number of Rentable Square Feet in Exhibit A, Tenant's Retail
Premises Proportionate Share is 2.24% (13,140 / 586,082).
(ad) "Tenant's
Use": Subject to the provisions of Article 17 hereof, the
Leased Premises are to be used and occupied by Tenant, and any permitted
subtenant or permitted assignee, for any of the following: the Exclusive Use;
insurance services; securities services; financial services organization; pay
day loan company (or commercial or personal lender); and credit card
company. Tenant shall also be permitted to use the Leased Premises
for any other lawful office use (or any lawful retail use, with respect to the
Retail Premises only) that does not violate: (1) any exclusive rights granted to
other tenants or occupants of the Building existing as of the Effective Date of
this Lease, and (2) any of the restrictions set forth in Section
17.1(D)(iii)(b), (c), (d) and (e) pertaining to subleases and
assignments. In addition, Tenant shall be subject to any exclusive
uses: (a) with respect to the Retail Premises, granted after the earlier of: (i)
the second anniversary of the Commencement Date, or (ii) the date on which the
Retail Premises are fully occupied by Tenant, a subtenant, or both; and (b) with
respect to the Upper Level Premises: (i) granted to any tenant or occupant of
the Building that only affects floors fourteen and above; or (ii) granted to a
tenant of the Building that is leasing space in the Building that is equal to or
greater than the square footage of the Leased Premises at the time such
exclusive use is granted. Notwithstanding anything contained in this
Section 1(ad) to the contrary, Tenant may not use or occupy any portion of the
Retail Premises for the Exclusive Use prior to the Commencement
Date.
(ae) “Tenant’s
Commencement Date Confirmation”: The form of certificate, attached hereto
as Exhibit J, that
Tenant shall execute and deliver to Landlord within ten (10) days of Landlord’s
request therefor, upon the Commencement Date for the Leased Premises, or the
commencement dates for any Expansion Space (as hereafter defined), First Refusal
Space (as hereafter defined) and First Offer Space (as hereafter defined) added
to the Leased Premises.
(af) "Tenant's
Secured Areas" Areas of the Leased Premises designated in
writing as "Secured Areas" by Tenant and approved by Landlord, such approval not
to be unreasonably withheld, conditioned or delayed. Landlord and
Tenant acknowledge and agree that approved Secured Areas shall at a minimum
include the following: server rooms, file collateral rooms, network IDF rooms
and teller area/safes.
(ag) "Tenant's
Work": As defined in Section 3.3.
(ah) "Term": The
period commencing on the Commencement Date and ending on the last day of the
fifteenth (15th) Lease
Year, unless otherwise earlier terminated or extended as provided in this
Lease.
(ai) "Termination
Date": The Expiration Date or earlier termination of this
Lease, as the same may be extended, as provided in this Lease.
(aj) "Untenantable": As
to any portion of the Leased Premises, such term means that Tenant cannot and
does not occupy such portion or conduct its usual business therein as a result
of the condition of the Leased Premises or any portion of the
Building.
(ak) "Workletter": The
Workletter attached hereto as Exhibit B.
2. LEASE OF
LEASED PREMISES.
Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord, the Leased
Premises, including all air conditioning, mechanical, electrical, plumbing, life
safety, heating and ventilating systems (other than those Building systems that
pass through or above the Leased Premises and do not exclusively service the
Leased Premises), now or hereafter located within the Leased Premises, and the
two (2) escalators from the ground floor of the Building to the second (2nd) floor
portion of the Leased Premises (together, the “Escalators”), and elevator number
18, which is located on the northeast side of the Building and provides access
to floors 1, 2, 3, 4, 5 and 7 of the Leased Premises ("Tenant's Dedicated
Elevator"), subject to the covenants, terms, provisions and conditions of this
Lease. The Term of the Lease shall commence on the Commencement Date
and terminate on the Termination Date. The Commencement Date shall be
confirmed, along with other matters, by written notice (the "Confirmation") sent
by Landlord to Tenant in the form attached hereto as Exhibit
J. Landlord's failure to deliver the Confirmation to Tenant
shall not effect the determination of the Commencement Date. Landlord
shall deliver possession of the Leased Premises to Tenant on the Effective Date;
provided, however, notwithstanding anything in the immediately preceding phrase
to the contrary, Landlord shall not be obligated to deliver the Retail Premises
to Tenant prior to the Commencement Date. In the event that Landlord
is unable to deliver the Retail Premises to Tenant on the Commencement Date: (i)
Tenant shall not be obligated to pay any Rent with respect to the Retail
Premises until the date the Retail Premises is actually delivered by Landlord;
(ii) the Expiration Date shall not be affected thereby; and (iii) Landlord shall
pay to Tenant the amount of the holdover rent actually received by Landlord for
the retail tenant’s holdover in the Retail Premises which exceeds the actual
monthly base rent and additional rent payable by the holdover tenant during the
last month of the tenant’s lease term, after Landlord deducts any reasonable,
out-of-pocket expenses incurred by Landlord in conjunction with such holdover,
including, but not limited to, reasonable attorneys’ fees and court costs, if
any.
3. LANDLORD'S
WORK; TENANT'S WORK.
3.1 Landlord's
Work. Landlord shall have no obligation to perform any work in
the Leased Premises, except with respect to: (a) the Seventh Floor Kitchen
Demolition (as defined in Section 33(A) of this Lease), if such demolition is
required by Tenant; and (b) the removal of asbestos existing in the Leased
Premises as of the Effective Date only to the extent that (i) the plans for
Tenant's Work (as defined in Section 3.3 below) or Alterations (as defined in
Section 10.1) require the disturbance of any asbestos within the Leased
Premises; or (ii) such asbestos in the Leased Premises is required to be removed
pursuant to applicable Laws (collectively, "Landlord's Work"). All
Landlord's Work, if any, shall be completed by Landlord, at Landlord's sole cost
and expense, and not as part of Operating Expenses, prior to the Commencement
Date for that portion of the Leased Premises affected thereby.
3.2 Condition
of Leased Premises. Subject to the completion of Landlord's
Work (if any), Tenant acknowledges and agrees that it shall take possession of
the Leased Premises in an "as-is" condition, with no warranty as to the
condition thereof. Tenant acknowledges that no promise by or on
behalf of Landlord, the managing agent of the Property, the leasing agent of the
Property or any of their respective agents, partners or employees to alter,
remodel, improve, repair, decorate or clean the Leased Premises has been made to
or relied upon by Tenant, and that no representation respecting the existing
condition of the Leased Premises or the Property by or on behalf of Landlord,
any of Landlord's beneficiaries (if Landlord is a land trust), the managing
agent of the Property, the leasing agent of the Property or any of their
respective agents, partners or employees has been made to or relied upon by
Tenant, except to the extent expressly set forth in this Lease, including any
Workletter attached hereto. Tenant shall notify Landlord of any
damage to the Leased Premises of which it becomes aware, regardless of the cause
of such damage.
3.3 Tenant's
Work. All improvements to the Leased Premises necessary for
Tenant's use or occupancy thereof that are not included in Landlord's Work shall
be completed by Tenant ("Tenant's Work") in conformity with the requirements set
forth in the Workletter, to be defined as all of the hard costs of construction,
Landlord supervisory and project management fees, and telephone and computer
cabling. Landlord shall provide Tenant with an allowance for Tenant's
Work ("Landlord's Maximum Contribution") in accordance with the terms and
conditions of the Workletter attached hereto as Exhibit B.
4. PAYMENT
OF RENT.
Tenant
shall pay to Landlord at the office of the Building or to such other person or
entity or at such other place as designated by Landlord from time to time in
writing, all amounts due Landlord from Tenant hereunder including, without
limitation, Monthly Base Rent and Additional Rent. Rent shall be due
and payable as and when provided herein and paid in coin, currency, check or
wire transfer which, at the time of payment is legal tender for public or
private debts in the United States of America, without demand or billing and
without abatement, deduction or setoff of any kind (except as otherwise
expressly set forth herein to the contrary), it being the intention of the
parties that, to the full extent permitted by law and except as otherwise
expressly set forth herein to the contrary, Tenant's covenant to pay Rent shall
be independent of all other covenants contained in this Lease, including
Tenant's continued occupancy of the Leased Premises. Tenant's
obligation hereunder to pay Rent for the Term shall survive the termination of
this Lease, except to the extent Tenant exercises its Termination Option (as
hereinafter defined) as set forth in Article 36, or to the extent Tenant
exercises an Upper Level Relinquishment Option (as hereinafter defined) as set
forth in Article 37, in which event Tenant's obligations to pay Rent shall be
limited as set forth in Articles 36 and/or 37, as applicable.
5. MONTHLY
BASE RENT.
Commencing
on the Commencement Date, Tenant shall pay Annual Base Rent in monthly
installments (herein called "Monthly Base Rent") and each installment shall be
one-twelfth (1/12) of the Annual Base Rent payable for the applicable Lease Year
(with the initial payment due on the Commencement Date including a partial month
payment and payment for the first (1st) full
month if the Commencement Date is other than the first (1st) day of
a month). Monthly Base Rent shall be payable in advance commencing on
the Commencement Date and on the first (1st) day of
each calendar month during the Term prorated on an equal per diem basis for
partial months. Tenant shall not commence construction in the Leased
Premises until Landlord has approved Tenant's architectural and engineering
plans and specifications in accordance with the Workletter attached hereto as
Exhibit
B. Notwithstanding anything contained herein to the contrary
and provided no Default exists hereunder, if Tenant elects to occupy and start
conducting business in all or any portion of the Fourth Floor Premises or Upper
Level Premises after the Effective Date and prior to the Commencement Date (the
"Early Occupancy Period"), Tenant shall be obligated to pay Annual Base Rent for
that portion of the Leased Premises from the date Tenant begins conducting
business up to the Commencement Date in the amount of Five and 00/100 Dollars
($5.00) per Rentable Square Foot ("Early Annual Base Rent"); provided, however,
(a) in no event shall Tenant occupy the Retail Premises prior to the
Commencement Date; (b) if Tenant occupies and begins conducting business in only
a portion of the Fourth Floor Premises, Tenant shall pay Early Annual Base Rent
for the entire Fourth Floor Premises; and (c) if Tenant occupies and begins
conducting business in only a portion of the Upper Level Premises, Tenant shall
pay Early Annual Base Rent for the entire floor which Tenant occupies and from
which Tenant conducts business, even if Tenant occupies and conducts business in
only a portion of that floor. Throughout the Early Occupancy Period,
Tenant shall comply with all of the terms and conditions set forth in this Lease
(except for Tenant's obligation to pay Annual Base Rent and Additional Rent),
including but not limited to Tenant's obligation to maintain insurance of the
types and amounts set forth in Article 12 of this Lease.
6. ADDITIONAL
RENT.
6.1 Additional
Rent. In addition to paying Monthly Base Rent, commencing on
the first (1st)
Adjustment Date, Tenant shall pay as "Additional Rent" (a) the amounts
determined pursuant to Sections 6.3 and 6.4 hereunder and (b) all other
amounts due from Tenant to Landlord under this Lease. Additional Rent
shall be payable in the same manner, time and place as Monthly Base Rent and
without demand or billing and without any abatement, set-off or deduction
whatsoever, except as otherwise expressly permitted herein. Without
limitation on other obligations of Tenant which shall survive the expiration of
the Term, the obligations of Tenant to pay (and Landlord's obligation to refund
any overpayment of) the Additional Rent provided for in this Article 6
shall survive the expiration of the Term, except to the extent Tenant exercises
its Termination Option as set forth in Article 36, in which event Tenant's
obligations to pay Rent shall be limited as set forth in Article
36.
6.2 Operating
Expense Adjustments. If less than ninety-five percent (95%) of
the Building's Rentable Square Feet shall have been occupied by tenants at any
time during the Base Year or any Adjustment Year, as the case may be, then
Landlord shall make an appropriate adjustment of Operating Expenses for such
Base Year or Adjustment Year, as applicable, employing sound accounting and
management principles, to determine the Operating Expenses that would have been
paid or incurred by Landlord had the Building been ninety-five percent (95%)
rented and occupied for the entire Base Year or Adjustment Year, as the case may
be, and the amount determined shall be deemed to have been the Operating
Expenses for such Base Year or Adjustment Year. If Landlord is not
furnishing any particular work or service (the cost of which if performed by
Landlord would constitute an Operating Expense) to a tenant who has, with the
prior written consent of Landlord, undertaken to perform such work or service in
lieu of the performance thereof by Landlord for all or any portion of a Base
Year or Adjustment Year, Operating Expenses for such Base Year or Adjustment
Year, as applicable, shall be deemed to be increased by an amount equal to the
additional Operating Expenses which reasonably would have been incurred during
such Base Year or Adjustment Year by Landlord if it had, at its own expense,
furnished such work or service to such tenant. Notwithstanding
anything contained herein to the contrary, the provisions of this Section with
respect to adjustment of Operating Expenses for vacancy or as a result of the
performance by tenants of certain services shall apply only to Operating
Expenses which are variable and which increase as occupancy in the Building
increases and shall not apply to any Operating Expenses which do not vary with
the amount of occupancy in the Building.
6.3 Expense
Adjustment. The Upper Level Premises Expense Adjustment
Amount (as defined below) and the Retail Premises Expense Adjustment Amount (as
defined below) shall be together referred to herein as the "Expense Adjustment
Amount".
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(A)
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Upper
Level Premises Expense Adjustment. So long as Tenant is leasing all
or any portion of the Upper Level Premises, then, as of the first
anniversary of the Commencement Date, Tenant shall pay as Additional Rent,
subject to Section 6.7 below, an amount (hereinafter referred to as the
"Upper Level Premises Expense Adjustment Amount") equal to Tenant's Upper
Level Premises Proportionate Share multiplied by the amount by which the
Operating Expenses incurred with respect to said Adjustment Year exceeds
the Operating Expenses for the Base Year (grossed up in the same manner as
provided in Section 6.2 hereof), prorated on a per diem basis for
partial Adjustment Years and adjusted as additional space is occupied (or
returned) by Tenant for those Adjustment Years that Tenant's Upper Level
Premises Proportionate Share increases or decreases. The Upper
Level Premises Expense Adjustment Amount with respect to each Adjustment
Year shall be paid in monthly installments in advance on the first (1st)
day of each and every calendar month during such Adjustment Year
commencing on the Commencement Date, in an amount reasonably estimated
from time to time by Landlord and communicated by written notice to Tenant
and Landlord hereby reserves the right to adjust and revise the Upper
Level Premises Expense Adjustment Amount from time to time, but no more
than once, during each Adjustment Year with at least thirty (30) days
prior written notice to Tenant. Landlord shall cause books and
records to be kept showing Operating Expenses in accordance with sound
management and accounting principles consistently
applied. Within one hundred twenty (120) days following the end
of each Adjustment Year, Landlord shall deliver to Tenant a statement
setting forth (a) a detailed itemization of Operating Expenses;
(b) the actual Upper Level Premises Expense Adjustment Amount paid to
Landlord for such Adjustment Year; (c) the total of the estimated
monthly installments of the Upper Level Premises Expense Adjustment Amount
paid to Landlord for such Adjustment Year; and (d) the amount of any
excess or deficiency with respect to such Adjustment
Year. Tenant or Landlord, as the case may be, shall pay any
deficiency or overpayment, as the case may be, to the other party, as
shown by such statement within thirty (30) days after receipt of such
statement; provided, however, Landlord shall not be required to pay such
overpayment to Tenant if Tenant is in Default (as hereinafter defined)
under this Lease, unless and until Tenant cures such
Default.
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(B)
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Retail
Premises Expense Adjustment. So long as Tenant is leasing all or
any portion of the Retail Premises, Tenant shall pay as Additional Rent,
subject to Section 6.7 below, an amount (hereinafter referred to as the
"Retail Premises Expense Adjustment Amount") equal to Tenant's Retail
Premises Proportionate Share multiplied by the Operating Expenses incurred
during each Adjustment Year (grossed up in the same manner as provided in
Section 6.2 hereof), prorated on a per diem basis for partial
Adjustment Years and adjusted as additional space is occupied (or
returned) by Tenant for those Adjustment Years that Tenant's Retail
Premises Proportionate Share increases or decreases. The Retail
Premises Expense Adjustment Amount with respect to each Adjustment Year
shall be paid in monthly installments in advance on the first (1st)
day of each and every calendar month during such Adjustment Year
commencing on the Commencement Date, in an amount reasonably estimated
from time to time by Landlord and communicated by written notice to Tenant
and Landlord hereby reserves the right to adjust and revise the Retail
Premises Expense Adjustment Amount from time to time, but no more than
once, during each Adjustment Year with at least thirty (30) days prior
written notice to Tenant. Landlord shall cause books and
records to be kept showing Operating Expenses in accordance with sound
management and accounting principles consistently
applied. Within one hundred twenty (120) days following the end
of each Adjustment Year, Landlord shall deliver to Tenant a statement
setting forth (a) a detailed itemization of Operating Expenses;
(b) the actual Retail Premises Expense Adjustment Amount for such
Adjustment Year; (c) the total of the estimated monthly installments
of the Retail Premises Expense Adjustment Amount paid to Landlord for such
Adjustment Year; and (d) the amount of any excess or deficiency with
respect to such Adjustment Year. Tenant or Landlord, as the
case may be, shall pay any deficiency or overpayment, as the case may be,
to the other party, as shown by such statement within thirty (30) days
after receipt of such statement; provided, however, Landlord shall not be
required to pay such overpayment to Tenant if Tenant is in Default under
this Lease, unless and until Tenant cures such
Default.
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6.4 Tax
Adjustment. The Upper Level Premises Tax Adjustment Amount (as
defined below) and the Retail Premises Tax Adjustment Amount (as defined below)
shall be together referred to herein as the "Tax Adjustment
Amount".
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(A)
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Upper
Level Premises Tax Adjustment. So long as Tenant is
leasing all or any portion of the Upper Level Premises, then, as of the
first anniversary of the Commencement Date, Tenant shall pay, as
Additional Rent, an amount (hereinafter referred to as the "Upper Level
Premises Tax Adjustment Amount") equal to Tenant's Upper Level Premises
Proportionate Share multiplied by the amount by which the Taxes for said
Adjustment Year exceeds the Taxes for the Base Year, prorated on a per
diem basis for partial Adjustment Years and adjusted as additional space
is occupied (or returned) by Tenant for those Adjustment Years that
Tenant's Upper Level Premises Proportionate Share increases or decreases.
The Upper Level Premises Tax Adjustment Amount with respect to each
Adjustment Year shall be paid in monthly installments in advance on the
first (1st)
day of each and every calendar month during such Adjustment Year
commencing on the Commencement Date, in an amount reasonably estimated
from time to time by Landlord and communicated by written notice to Tenant
and Landlord hereby reserves the right to adjust and revise the Upper
Level Premises Tax Adjustment Amount from time to time, but no more than
once, during each Adjustment Year with at least thirty (30) days prior
written notice to Tenant. Following receipt of actual tax
bills, Landlord shall deliver to Tenant a statement ("Landlord's Upper
Level Premises Tax Statement") setting forth (a) the actual Upper
Level Premises Tax Adjustment Amount for such Adjustment Year;
(b) the total of the estimated installments of the Upper Level
Premises Tax Adjustment Amount paid to Landlord for such Adjustment Year;
and (c) the amount of any excess or deficiency for such Adjustment
Year. Tenant or Landlord, as the case may be, shall pay any
deficiency or overpayment, as the case may be, to the other party, as
shown by such statement within thirty (30) days after receipt of such
statement; provided, however, Landlord shall not be required to pay such
overpayment to Tenant if Tenant is in Default under this Lease, unless and
until Tenant cures such Default.
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(B)
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Retail
Premises Tax Adjustment. So long as Tenant is leasing
all or any portion of the Retail Premises, Tenant shall pay, as Additional
Rent, an amount (hereinafter referred to as the "Retail Premises Tax
Adjustment Amount") equal to Tenant's Retail Premises Proportionate Share
multiplied by the amount of Taxes for said Adjustment Year, prorated on a
per diem basis for partial Adjustment Years and adjusted as additional
space is occupied (or returned) by Tenant for those Adjustment Years that
Tenant's Retail Premises Proportionate Share increases or
decreases. The Retail Premises Tax Adjustment Amount with respect to each
Adjustment Year shall be paid in monthly installments in advance on the
first (1st)
day of each and every calendar month during such Adjustment Year
commencing on the Commencement Date, in an amount reasonably estimated
from time to time by Landlord and communicated by written notice to Tenant
and Landlord hereby reserves the right to adjust and revise the Retail
Premises Tax Adjustment Amount from time to time, but no more than once,
during each Adjustment Year with at least thirty (30) days prior written
notice to Tenant. Following receipt of actual tax bills,
Landlord shall deliver to Tenant a statement ("Landlord's Retail Premises
Tax Statement") setting forth (a) the actual Retail Premises Tax
Adjustment Amount for such Adjustment Year; (b) the total of the
estimated installments of the Retail Tax Adjustment Amount paid to
Landlord for such Adjustment Year; and (c) the amount of any excess
or deficiency for such Adjustment Year. Tenant or Landlord, as
the case may be, shall pay any deficiency or overpayment, as the case may
be, to the other party, as shown by such statement within thirty (30) days
after receipt of such statement; provided, however, Landlord shall not be
required to pay such overpayment to Tenant if Tenant is in Default under
this Lease, unless and until Tenant cures such
Default. Landlord's Retail Premises Tax Statement and
Landlord's Upper Level Premises Tax Statement are herein referred to
together as "Landlord's Tax
Statement".
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(C)
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Right
to Contest Taxes. Nothing herein shall be construed as granting
Tenant the right to contest Taxes for the
Building. Notwithstanding the foregoing, Tenant shall have the
right to require Landlord to contest the Taxes for the Building for any
calendar year during the Term provided that: (1) Tenant makes such request
to Landlord, in writing, within ninety (90) days of Tenant's receipt of
Landlord's Tax Statement and (2) if Landlord has made a reasonable
decision not to contest Taxes for the Building for any calendar year, and
Tenant has required Landlord to do so, Tenant shall pay for one-half (1/2)
of the costs reasonably incurred by Landlord (including reasonably
attorneys' fees) in contesting the Taxes (“Tenant’s Share of Audit
Costs”). If Tenant requires Landlord to contest Taxes in
accordance with this Section 6.4(C) and the taxing authority reduces such
Taxes, (a) if the amount of the reduction in Taxes ("Tax Reduction
Amount") is greater than the total audit costs, the Tax Reduction Amount
shall be applied as follows: (i) an amount equal to Tenant's Share of
Audit Costs shall be paid to Tenant; (ii) an amount equal to Landlord's
share of the audit costs shall be paid to Landlord; and (iii) an amount
equal to Tenant's Upper Level Premises Proportionate Share of the
remaining Tax Reduction Amount (after the amounts in (i) and (ii) have
been subtracted) shall be paid to Tenant, and (b) if the Tax Reduction
Amount is less than the total audit costs, fifty percent (50%) of the Tax
Reduction Amount shall be paid to Tenant and the other fifty percent (50%)
of the Tax Reduction Amount shall be paid to
Landlord. Notwithstanding anything in this Article 6 to the
contrary, if, at any time during the Term of this Lease, Landlord reduces
the Base Year for Taxes, Tenant shall have the right to require Landlord
to contest the Taxes for the Building for any Adjustment Year during the
Term prior to the Adjustment Year during which Landlord reduces the Base
Year for Taxes provided that: (A) Tenant makes such request to Landlord,
in writing, within ninety (90) days after Tenant receives the revised
Landlord's Tax Statement reflecting such change to the Base Year for
Taxes, and (B) the period of time during which Landlord is able to contest
Taxes for such Adjustment Year has not been closed for tax protest
purposes by the taxing authority.
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6.5 Delay in
Computing Additional Rent. Delay in computing any item of
Additional Rent shall neither be deemed a default by Landlord or a waiver of the
right to collect the item of Additional Rent in
question. Notwithstanding anything to the contrary in this Lease,
Tenant shall make monthly payments on account of each item of Additional Rent,
the amount of which is to be estimated by Landlord based on Landlord's most
recent estimate thereof, until Landlord notifies Tenant in writing of a revision
to such estimate.
6.6 Review of
Books and Records. Tenant shall have the right, during
Landlord's normal business hours, within one hundred and twenty (120) days
following the furnishing by Landlord of any statement of actual Operating
Expenses and Taxes for any Adjustment Year, and upon reasonable prior written
notice to Landlord, to inspect that portion of Landlord's books and records
showing Operating Expenses and Taxes; provided that such inspection is conducted
by an accounting firm which: (i) is nationally or regionally recognized and (ii)
does not operate a contingency basis. Unless Tenant shall, by notice
to Landlord within such one hundred and twenty (120) day period, take exception
to any item in such statement, the statement shall be conclusively binding and
shall not be contestable by Tenant or Landlord. If Tenant shall
desire to contest any item, Tenant shall so notify Landlord within the aforesaid
one hundred and twenty (120) day period and shall specify in detail the item or
items being contested and the specific grounds therefor. Tenant shall
have a one (1) time right during the first two (2) Adjustment Years, during
Landlord's normal business hours and upon reasonable prior written notice to
Landlord, to inspect that portion of Landlord's books and records pertaining to
Operating Expenses and Taxes for the Base Year. Any party deemed
owing such Operating Expenses and/or Taxes to the other party due to overpayment
or underpayment thereof, as the case may be, shall remit such overpayment to the
other party within thirty (30) days after such accounting firm makes its written
determination; provided, however, that if Landlord objects to any items in the
written determination submitted by the accounting firm, and Landlord and Tenant
are unable to reach agreement with respect to such items, Landlord and Tenant
may submit the matter for prompt determination by an independent certified
public accountant having no ongoing relationship with either party ("Expert"),
mutually acceptable to Landlord and Tenant, who shall be deemed to be acting as
an expert and not as an arbitrator, and if Landlord and Tenant shall fail to
agree on an Expert within fifteen (15) days after Landlord rejects the
determination by Tenant's accounting firm, Landlord and Tenant shall submit the
matter to the president of the local chapter of CORENET who shall select an
Expert (who shall have not less than ten (10) years experience in reviewing
operating cost allocations in real estate). The costs of the Expert's
investigation and determination shall be borne equally by Landlord and
Tenant. Landlord and Tenant shall each submit such party's
determination of the actual Operating Expenses and/or Taxes in writing to the
Expert, and the Expert must choose either Landlord's determination or Tenant's
determination of such costs. The written determination of the actual
Operating Expenses and/or Taxes, as the case may be, executed by such Expert
shall final and binding on Landlord and Tenant. Furthermore, in the
event Landlord overcharged Tenant for Operating Expenses and/or Taxes by more
than five percent (5%) of the actual amount payable by Tenant, Landlord shall
reimburse Tenant for its actual, out-of-pocket, unrelated third-party costs
relating to such audit. Unless Tenant shall, by notice to Landlord
within said two (2) year period, take exception to any item relating to the Base
Year, the Operating Expenses and Taxes for the Base Year shall be conclusively
binding upon and shall not be contestable by Tenant, or solely as to Operating
Expenses, by Landlord. Notwithstanding anything to the contrary
contained in the immediately preceding sentence, if Landlord reduces the Base
Year for Taxes at any time during the Term of this Lease, Tenant shall have the
right, within three hundred and sixty-five (365) days after Tenant's receipt of
the new reduced Base Year for Taxes, to audit such Base Year for Taxes and the
Taxes for any Adjustment Years prior to the year in which Landlord reduces the
Base Year for Taxes. If Tenant does not conduct any audit within such
three hundred and sixty-five (365) day period, Tenant shall be deemed to have
waived Tenant's right to audit the Base Year for Taxes and the Taxes for such
Adjustment Years. Tenant's giving of notice shall not relieve Tenant
of the obligation to pay any deficiency in any such statement within ten (10)
days after receipt of such statement, as set forth in Sections 6.3 and
6.4. All information received and/or reviewed by Tenant or any
outside firm retained by Tenant to conduct such review is confidential
information of Landlord and will not be disclosed by Tenant (or its agents or
auditors) to any third parties, including other tenants in the Building, and
Tenant shall require its agents, attorneys and accountants to enter into a
confidentiality agreement with Landlord agreeing to the aforesaid
confidentiality requirements. Notwithstanding anything to the
contrary contained herein, Tenant may disclose confidential information as
required by deposition, interrogatory, request for documents, subpoena or
similar legal process or as otherwise required to pursue or defend against any
claims or legal proceedings. Any breach by Tenant of such
confidentiality requirements shall constitute a Default by Tenant under this
Lease and shall immediately afford Landlord all rights and remedies described in
Section 24.1 hereof.
6.7 Controllable
Operating Expense Cap. Notwithstanding anything to the
contrary contained in this Article 6, for purposes of calculating Tenant's
Proportionate Share of Operating Expenses, expressly excluding Uncontrollable
Costs (as hereinafter defined), increases in Operating Expenses in any
Adjustment Year compared to the immediately preceding Adjustment Year during the
Term shall be subject to a five and one-half percent (5.5%) compounding cap (the
"Expense Cap"), an example of which is shown on Exhibit L. The
foregoing provision of this Section notwithstanding, (i) union wages for parties
providing housekeeping, engineering and security services to the Building, (ii)
the costs of all casualty, liability and other insurance applicable to the
Property and Landlord's personal property used in connection with the Property,
and (iii) utility expenses for the Common Areas (collectively the
"Uncontrollable Costs") shall not be subject to any limitation or cap, and
accordingly, the total dollar increase in Operating Expenses, and Tenant's
Proportionate Share of Operating Expenses payable pursuant to this Section, for
any and each Adjustment Year during the Term shall be calculated without any
limitation or cap on Uncontrollable Costs.
7. USE OF
LEASED PREMISES.
7.1 Use of
Leased Premises. Tenant shall use and occupy the Leased
Premises only as indicated as Tenant's Use in Article 1.
7.2 Parking.
(A) Landlord
shall enter into agreements or otherwise insure that, throughout the Term, the
operator of the 183 Monroe Garage, located adjacent to the Building, shall make
available to Tenant and its employees, at Tenant's sole cost, not less than
twenty (20) reserved parking spaces at Market Cost (as hereinafter defined),
subject to the rules and regulations established from time to time for the 183
Monroe Garage. Notwithstanding anything contained in this Section 7.2
to the contrary, Tenant acknowledges and agrees that the owner of the 183 Monroe
Garage may demolish the 183 Monroe Garage and/or sell the 183 Monroe Garage at
any time during the Term of this Lease. If the owner of the 183
Monroe Garage (i) demolishes the 183 Monroe Garage and (a) builds another public
parking garage or (b) builds an office or apartment building with a parking
garage component, or (ii) sells the 183 Monroe Garage to a developer that (x)
builds a public parking garage, (y) builds an office or apartment building with
a parking garage component in which parking spaces are made available to the
general public for lease, or (z) otherwise agrees to reserve twenty (20) parking
spaces in the new building for the benefit of Landlord and/or Tenant
(collectively, the "New 000 Xxxxxx Xxxxxx"), Xxxxxxxx shall enter into an
arrangement with such owner or otherwise insure that Tenant is afforded not less
than twenty (20) spaces in such new garage as soon as such parking spaces become
available. If at any time during the Term of this Lease, the 183
Monroe Garage is demolished and Landlord is unable to secure parking spaces
there, subject to the immediately preceding sentence, Landlord shall enter into
agreements or otherwise insure that Tenant is afforded not less than twenty (20)
reserved parking spaces in a public parking garage located within the area
bounded by LaSalle Street to the East, the mid-block between Madison and
Washington Streets to the North, Franklin Street to the West and the mid-block
between Xxxxx Street and Xxxxxxx Boulevard to the South ("Substitute Garage"),
as depicted on Exhibit
M. If the
costs of the twenty (20) parking spaces in the Substitute Garage ("New Parking
Cost") exceed the cost of the spaces in the 183 Monroe Garage, subject to market
rate adjustments over time (“Market Cost”), Landlord will be responsible to pay
the difference between the New Parking Cost and the Market
Cost. If at any time during the Term of the Lease, Tenant's
parking spaces have been relocated to the Substitute Garage and the New 183
Monroe Garage has parking spaces available for Tenant's use, subject to the
terms and conditions set forth in this Section 7.2(A), Landlord shall enter into
agreements or otherwise insure that Tenant is afforded twenty (20) reserved
parking spaces therein at Market Cost.
(B) Tenant
acknowledges and agrees that Landlord shall not have any obligation to monitor
or enforce Tenant’s parking licenses or privileges in the 183 Monroe Garage or
the Substitute Garage, as the case may be. Except for the negligence
or willful misconduct of Landlord, neither Landlord nor its operators, agents,
licensees or employees shall be liable for: (i) any loss or damage to any
vehicle parked or other personal property located upon or within such reserved
parking spaces or any common areas of the 183 Monroe Garage or Substitute
Garage, as the case may be, whether caused by fire, theft, explosion, strikes,
riots or any other cause whatsoever; or (ii) injury to or death of any person
in, about or around such reserved parking spaces or any parking areas or any
vehicles parking therein or in proximity thereto whether caused by fire, theft,
assault, explosion, riot or any other cause whatsoever and Tenant hereby waives
any claim for or in respect to the above. Tenant acknowledges and
agrees that Landlord shall in no event be liable to Tenant with respect to
claims or actions arising in connection with any loss, damage, injury or death
as described in the immediately preceding sentence with respect to the parking
spaces. Except pursuant to an assignment of this Lease to an
Affiliate, Tenant shall not assign any of its rights under this Section 7.2 and
any attempted assignment shall automatically and without any further action by
the parties hereto be null and void and of no force or effect.
(C) If,
at any time during the Term, Tenant fails to pay any installment of Rent due
under this Lease and such failure continues for more than thirty (30) days after
the date such payment was due, Tenant shall automatically lose the parking
privileges granted under this Section 7.2 and Landlord shall have no further
obligations to Tenant with respect to parking. Moreover, if, more
than three (3) times in any consecutive twelve (12) month period, Tenant fails
to timely pay the rental charge for any of the twenty (20) reserved parking
spaces granted herein, and such failure continues for more than thirty (30) days
after Tenant receives notice that such payment is overdue, (1) Landlord shall
have the right to cancel or cause to be cancelled the contract or agreement
related to Tenant's reserved parking spaces with the operator of the 183 Monroe
Garage or Substitute Garage, as the case may be, with respect to the number of
reserved spaces for which such rent payment is delinquent (“Relinquished Parking
Spaces”); and (2) in the event the 183 Monroe Garage is no longer owned by an
affiliate of Landlord or operated as a parking garage, Landlord’s obligation to
secure twenty (20) parking spaces in the Substitute Garage shall be reduced by
the number of Relinquished Parking Spaces. Notwithstanding anything
to the contrary contained in this Section 7.2, in the event of Tenant's default
with respect to the payment of fees for the 183 Monroe Garage or the Substitute
Garage, as the case may be, and/or in the event of a violation of any rule or
regulation imposed by the 183 Monroe Garage or the Substitute Garage, as the
case may be, by Tenant or Tenant's agents, officers, directors, invitees,
employees, or the like, such violation or default shall not be a Default, but
shall entitle Landlord to take action against any individual in the event of any
individual violation, and Tenant agrees to reasonably cooperate with Landlord in
Landlord’s pursuit of such action. Landlord acknowledges and agrees
that Landlord shall not transfer its interest in the Building or this Lease with
the intent of avoiding compliance with its obligations under this Section
7.2.
7.3 Compliance
with Requirements. Tenant shall comply with all applicable
Laws now or hereafter in force and with all applicable insurance underwriters'
regulations (collectively, the "Requirements" and each, a "Requirement"),
respecting all matters of occupancy, condition or maintenance of the Leased
Premises, whether any of the foregoing shall be directed to Tenant or Landlord
or any beneficiary of Landlord (if Landlord is a land trust), and whether
imposed on the owner or occupant of the Leased
Premises. Notwithstanding anything contained herein to the contrary,
in no event shall Tenant be responsible for undertaking any alterations,
improvements or construction in the Leased Premises, or paying the costs
thereof, to bring the Leased Premises in compliance with any Requirement unless:
(a) compliance with such Requirement is necessary as a direct result of Tenant's
specific use of the Leased Premises (as opposed to a Requirement that pertains
broadly to general office use, or general retail use with respect to the Retail
Premises only), in which event Tenant shall be solely responsible for bringing
the Leased Premises into compliance with such Requirement and all costs and
expenses associated therewith; (b) compliance with such Requirement is necessary
as a direct result of Tenant's specific tenancy of the Leased Premises (i.e. the
Requirement only pertains to tenants who occupy more than 100,000 square feet in
an office building), in which event Landlord shall complete any alteration,
improvement or construction in the Leased Premises to bring the Leased Premises
into compliance with such Requirement, and Tenant shall be responsible for
Tenant's proportionate share of such costs (i.e. if Landlord performs such work
on behalf of three similarly-situated tenants in the Building, Tenant shall be
responsible for the cost of the work directly attributable to Tenant's Leased
Premises); (c) if such Requirement pertains broadly to general office use or
general retail use, Landlord shall be responsible for completing such
alterations, improvements or construction, the costs of which shall be treated
as part of Operating Expenses and Tenant shall be responsible for Tenant's Upper
Level Premises Proportionate Share or Retail Premises Proportionate Share, as
the case may be, thereof; (d) if such Requirement pertains to the ADA (as
hereinafter defined), the obligations of Landlord and Tenant with respect
thereto shall be governed by the terms and conditions set forth in Article 31 of
this Lease, or (e) if, as a direct result of Tenant's Work or Tenant's
subsequent build-out of any premises added to the Leased Premises, the Leased
Premises does not comply with any Requirement that was in effect at the time
Tenant undertook such Tenant's Work or subsequent build-out, Tenant shall be
solely responsible for bringing the Leased Premises into compliance with such
Requirement and all costs and expenses associated therewith. Tenant
shall not make or permit any use of the Leased Premises or the Building, or do
or permit to be done anything in or upon the Leased Premises or the Building, or
bring or keep anything in the Leased Premises or the Building, which directly or
indirectly is forbidden by any of the foregoing or which may be dangerous to
persons or property, or which may invalidate or increase the rate of insurance
on the Building, its appurtenances, contents or operations, or which may cause a
default under any Mortgage or Ground Lease provided that Tenant receives notice
that said activity is or may be a default under said Mortgage or Ground Lease,
and fails to cease same within ten (10) days after receipt of such
notice. Tenant shall procure and maintain all licenses and permits
legally necessary for the operation of Tenant's business and allow Landlord to
inspect them upon at least twenty-four (24) hours prior verbal or written
request, and, at Tenant's option, accompanied by a representative of
Tenant. Tenant shall not be responsible for Hazardous Materials (as
hereinafter defined) which exist in the Leased Premises or the Building prior to
the Effective Date of this Lease.
8. SERVICES.
8.1 General
Description of Services. Landlord shall furnish the following
services (the cost of which may be included in Operating Expenses) in accordance
with other similarly situated buildings in the Pertinent Market:
(A) Air
conditioning and heat when necessary in Landlord's reasonable judgment (subject,
however, to the specifications below) to provide for comfortable occupancy of
the Leased Premises under normal business operations, Monday through Friday from
8:00 A.M. to 6:00 P.M. and Saturdays from 8:00 A.M. to 1:00 P.M., Sundays
and Holidays (as defined in Section 8.4) excepted ("Business
Hours"). Levels of heating and air conditioning are subject to
adjustments pursuant to compliance by Landlord with Laws and guidelines relating
to energy use, which guidelines do not affect the heating and cooling
specifications and hours set forth below (without Tenant’s prior written
consent). Heating and cooling design standards for the Leased
Premises and office space in the Building are: (i) during the heating
season maintain inside temperatures of not less than 70 degrees F. with outdoor
temperatures ranging down to 0 degrees F. and (ii) during the cooling
season maintain inside space conditions of not more than 78 to 76 degrees F. dry
bulb and 50% relative humidity when outside conditions are 92 degrees F. dry
bulb and 75 degrees F. wet bulb. The foregoing design standards are
applicable to the hours and the days that heating and cooling is to be provided
by Landlord and based upon a building standard drop ceiling plan, an occupancy
density of not more than one person per one hundred usable square feet of floor
area and a maximum electrical lighting and equipment load of 6.0 xxxxx per
usable square foot of floor area in any area within the Leased
Premises. Upon reasonable prior request by Tenant, Landlord shall
provide air conditioning in the Leased Premises after Business Hours, the cost
of which shall be charged to Tenant as Additional Rent. Landlord's
current charge for air conditioning after Business Hours is Thirty-Seven and
50/100 Dollars ($37.50) per hour, which cost is subject to reasonable increases
over the Term.
(B) (i)
Domestic water in common with other tenants for drinking, building standard
lavatory and toilet purposes but not for additional lavatories, kitchens and
other above Building-standard uses unless Tenant bears the cost of such
additional service, including point of service heaters and metering drawn
through fixtures installed by Landlord within the core of the Building, and (ii)
heated water in common with other tenants for lavatory purposes from the same
regular Building supply and fixtures, including: (a) all sinks in restrooms
located within the second and third floors of the Leased Premises as of the
Effective Date and (b) any sink in any restroom located within the Leased
Premises as of the Effective Date which restroom individually contains no less
than two (2) toilet stalls. In the event that the Leased Premises
contain its own lavatory, kitchen or other uses which exceed "Building
standards," Landlord may elect to submeter all or any portion of the Leased
Premises for water usage, at Tenant's sole cost and expense, and thereafter
Tenant shall pay the utility company or Landlord directly for such submetered
water and the same shall not be deemed an Operating Expense.
(C) Janitor
and cleaning service in and about the Leased Premises and common areas of the
Building in accordance with the terms and conditions set forth in Exhibit C attached
hereto. If Tenant elects to retain its own union cleaning and
maintenance personnel in and about the Leased Premises, (i) Tenant’s union
cleaning and maintenance personnel shall, at a minimum, clean and maintain the
Leased Premises in accordance with the standards and criteria set forth in Exhibit C (excluding those
items which require cleaning that are located outside of the Leased Premises for
which Landlord shall be responsible), and (ii) except as otherwise set forth in
subsection (i), Tenant shall be responsible for all costs and expenses
associated therewith and the costs of janitor and cleaning service for the
Leased Premises shall not be included in Operating Expenses.
(D) Adequate
passenger elevator service (i.e. at least six (6) elevators in the Leased
Premises elevator bank at all times during Business Hours and at least two (2)
elevators in the Leased Premises elevator bank during non-Business Hours, except
in the event of any required maintenance, repairs or emergencies) without an
operator at all times in common with Landlord and other
persons. Service for Tenant's Dedicated Elevator at all times,
without an operator, except in the event of any required maintenance, repairs or
emergencies.
(E) Freight
elevator service in common with Landlord and other persons, Monday through
Friday from 8:00 A.M. to 4:30 P.M., Saturdays, Sundays and Holidays excepted;
provided, however, upon request by Tenant and subject to availability, Landlord
shall provide freight elevator service at no charge to Tenant on Saturdays,
Sundays and any other times requested by Tenant for Tenant's initial move into
the Leased Premises
(F) Sidewalk
maintenance and snow removal around the Building, as and when and to the extent
Landlord shall deem reasonably necessary, and consistent with other similarly
situated buildings in the Pertinent Market.
(G) Electricity. Tenant
shall, at Tenant's sole cost and expense, make all necessary arrangements with
the electric utility company for separate metering and paying Landlord directly,
at rates competitive with then-existing utility company charges, for electric
current furnished to the Leased Premises and Tenant's Dedicated Elevator (which
Landlord represents is currently separately metered). Tenant shall
not install in the Leased Premises any equipment which requires a substantial
amount of electrical current and Tenant shall ascertain from Landlord the
maximum amount of load or demand for or use of electrical current which can be
accommodated or permitted in the Leased Premises, taking into account the
capacity of the electric feeders, risers, conduits, wiring and other facilities
and equipment, the Building and Leased Premises and the needs of other tenants
(both present and future) of the Building, and shall not in any event connect a
greater load than such safe capacity. Landlord covenants and agrees
that, throughout the Term, Landlord shall provide at least an average of 6 xxxxx
per square foot demand load per floor of electricity to the Leased Premises
(unless Landlord's failure to provide such electricity is the result of Force
Majeure). If Tenant's requirements for electrical services exceed an
average of 6 xxxxx per square foot demand load per floor of electricity to the
Leased Premises and necessitate modifications of the electric service supply
system in and to the Leased Premises or the Building, Tenant shall be
responsible for paying for the cost of all such modifications and increased
maintenance therefrom. Except for Tenant's Work and subject to Articles 10 and
40 of this Lease, Tenant shall make no alterations or additions to the electric
equipment or systems in (i) the Leased Premises, without the prior written
consent of Landlord in each instance, which consent shall not be unreasonably
withheld, conditioned or delayed, or (ii) the Building, without the prior
written consent of Landlord in each instance, which consent may be withheld by
Landlord in Landlord's sole and absolute discretion.
8.2 Communications. Telephone
and communication services shall not be furnished by
Landlord. Landlord shall have exclusive access to the Building
telephone riser cable and all other telephone or communications cables or
wiring, junction boxes, wire conduits and associated facilities and equipment
serving the Leased Premises and other premises in the Building, to the point of
connection to Tenant's communications equipment ("Building Wiring") and all
telephone and communications closets in the Building. Landlord
covenants to keep the Building Wiring in good condition and
repair. Landlord shall have the right to enter into a maintenance and
management contract with an independent contractor selected by Landlord for such
maintenance and management of Building Wiring as Landlord shall from time to
time reasonably deem appropriate. Landlord shall permit Tenant and
Tenant's permitted assignees and subtenants to receive (but not to resell) such
telephone and communications service direct from any telecommunications service
provider serving the area at Tenant's cost, and shall permit Landlord's Building
Wiring, to the extent available, to be used for such purposes, on the terms and
conditions herein or prescribed by Landlord. Landlord may require
Tenant or its telecommunications service provider to contract directly for such
access to the Building Wiring with a company which may be managing use of the
Building Wiring, so long as the cost for same is competitive in the
market. Tenant shall make all necessary arrangements with the
telecommunications service provider for paying for the telephone and
communications service furnished by it to Tenant, and Tenant shall pay for all
charges for such service and Building Wiring access. At Landlord's
option, all expenses of maintenance and management of Building Wiring incurred
by Landlord which is attributable to Tenant's telephone and other communications
service or otherwise attributable to Tenant in the Building (expressly excluding
the Building Wiring in the Leased Premises, if any), together with a reasonable
fee to Landlord at rates fixed from time to time by Landlord, shall be borne by
Tenant and shall be billed to Tenant as a charge for services under
Section 8.4 of this Lease, or such expenses may be included in Operating
Expenses. No interruption or diminution of telephone or other
communications service shall be deemed an eviction or disturbance of Tenant's
use and possession of the Leased Premises or any part thereof, or render
Landlord liable to Tenant for damages, by abatement of Rent or otherwise (except
as otherwise expressly set forth in this Article 8), or relieve Tenant from
performing Tenant's obligations under this Lease. Except to the
extent that the same is caused by the negligence or intentional misconduct of
Landlord or Landlord's agents, employees, contractors, directors, officers,
members, shareholders, partners or the like (collectively, the "Landlord
Parties" and each, a "Landlord Party"), Tenant hereby releases Landlord and its
agents, servants and employees from and waives all claims and liability,
including all liability for damages, whether actual, consequential, incidental
or otherwise, arising from or out of management, maintenance, repair,
replacement or damage to, or the failure to manage, maintain, repair or replace,
the Building Wiring, or from or out of any intentional or negligent act or
omission of any tenant or occupant of the Building or any other person with
respect to Building Wiring. Neither Tenant nor Tenant's
telecommunications service provider (or their respective agents, employees,
licensees or contractors) shall make any alterations, additions or repairs to
the Building Wiring. Tenant shall be liable, up to the amount of
Landlord’s insurance deductible, if any, for any damage done to the Building
Wiring or other Building systems, equipment or fixtures as a result of Tenant
(or Tenant's telecommunications service provider or their respective agents,
employees, licensees or contractors) alteration, addition, maintenance or repair
of Tenant's telephone or communications system and Landlord may, at its option,
repair such damage and Tenant shall upon demand by Landlord reimburse Landlord
for all costs of such repair and damages up to the amount of such deductible as
aforesaid.
8.3 Extra or
Additional Services. If, at Tenant's request, Landlord shall
provide services which are extra or in addition to those services described in
Section 8.1, Tenant shall pay for any such extra or additional services so
provided by Landlord at Landlord's established rates therefor from time to time
or if there are no established rates, then at reasonable rates as otherwise
agreed by Landlord and Tenant. All charges for any such extra or
additional services so provided by Landlord shall be deemed to be Additional
Rent hereunder and shall be due and payable within thirty (30) days after Tenant
receives Landlord's xxxx therefor, or in installments as may be designated by
Landlord to Tenant in writing. If Tenant fails to pay when due
Landlord's proper charges for any such extra or additional services, Landlord
shall have the right, in addition to all other rights and remedies available to
Landlord, to discontinue furnishing any such extra or additional services for
which Tenant has failed to pay. If Landlord discontinues any such
extra or additional services as provided in this Section 8.3, no such
discontinuance shall be deemed an eviction or disturbance of Tenant's use of the
Leased Premises or render Landlord liable for damages or relieve Tenant from
performance of Tenant's obligations under this lease.
8.4 Holidays. For
purposes of this Article 8, "Holidays" means New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and any other day
recognized as a holiday by service unions representing workers providing
services to the Building or customarily designated as a holiday by landlords
operating first-class office buildings in downtown Chicago,
Illinois.
8.5 Interruption
of Services. Tenant agrees that neither Landlord, nor any of
Landlord's beneficiaries (if Landlord is a land trust), nor the managing agent
of the Property nor any of their respective agents, partners or employees shall
be liable for damage or injury to person, property or business or for loss or
interruption of business, or for any other matter, in the event there is any
failure, delay, interruption or diminution in furnishing any service, and no
such failure, delay, interruption or diminution shall be deemed to constitute an
eviction or disturbance of Tenant's use or possession of the Leased Premises, in
whole or in part, actual or constructive, entitle Tenant to any claim for
set-off, abatement or reduction of Rent, render Landlord liable for damages, or
relieve Tenant from the performance of or affect any of Tenant's obligations
under this Lease. Notwithstanding anything to the contrary contained
herein, in the event Landlord fails to furnish heating, air-conditioning,
electricity, water, elevator service or housekeeping (each, a “Major Service”)
to the Leased Premises as required under this Lease, and such failure: (i)
continues for more than three (3) consecutive business days or more than a total
of twelve (12) days in any calendar year; and (ii) is not caused solely and
directly by an act of Tenant or any of Tenant’s agents, employees, contractors,
directors, officers, members, shareholders and partners (collectively, the
“Tenant Parties, and each, a “Tenant Party”); and (iii) is not caused by
condemnation, fire or other casualty; and (iv) is not the result of Force
Majeure, Tenant shall be entitled to receive an abatement of Rent only with
respect to that portion of the Leased Premises so affected, beginning on the
fourth (4th)
business day or thirteenth (13th) day,
as the case may be, of such failure to the day immediately preceding the day on
which the Major Service has been restored.
8.6 Tenant's
Cooperation. Tenant agrees to use commercially reasonable
efforts to cooperate fully with Landlord, at all times, in abiding by all
regulations and requirements set forth in Exhibit D attached hereto, as
they may be promulgated, or reasonably supplemented, modified and revised by
Landlord from time to time, as in Landlord's reasonable judgment may be
necessary or desirable for the safety, care, maintenance and cleanliness of the
Building and the Leased Premises or for the preservation of good order
therein. Landlord and its contractors shall have free access, upon
providing at least twenty-four (24) hours prior written or verbal notice to
Tenant, and, at Tenant's option, accompanied by a representative of Tenant
(except in the case of an emergency), to any and all mechanical, electrical,
communications, plumbing or structural installations and all risers in the
Leased Premises, and Tenant agrees that there shall be no construction of
partitions or other obstructions which might unreasonably 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, licensees or contractors shall at any time
tamper with, adjust or otherwise in any manner affect Landlord's mechanical,
electrical, communications, plumbing or structural installations or risers in
the Leased Premises or the Property or enter any riser closets.
8.7 Excessive
Use of Building Systems. Tenant's use or occupation of the
Leased Premises shall not in any manner (i) cause the design loads for the
Building or the systems providing exhaust, heating, cooling, ventilation,
electrical, life safety, water or sewer services to the Building to be exceeded
(which design loads are: (A) with respect to floor loads, ninety (90) pounds per
square foot, including twenty (20) pound partitioned load and (B) with respect
to electric loads, 6 xxxxx per square foot of demand load) or
(ii) materially adversely affect the Building or the operation of said
systems in the Leased Premises or the Building or cause unusual deterioration or
damage to the Building or to such systems. Landlord shall use
commercially reasonable efforts to notify Tenant, during Landlord's review of
plans for any alterations or Tenant's Work, of any items in the plans which
would foreseeably result in the design loads for the Building or the systems
therein to be exceeded. If Landlord determines that Tenant's use or
occupancy of the Leased Premises will, in Landlord's reasonable judgment, cause
the design loads for the Building or the systems providing exhaust, heating,
cooling, ventilation, electrical, life safety, water or sewer services to the
Building to be exceeded or will adversely effect the Building or the operation
of said systems in the Leased Premises or the Building or cause unusual
deterioration or damages to the Building or to such systems, then Landlord shall
deliver written notice thereof to Tenant and Tenant, at Tenant's sole option,
subject to the provisions of Article 10, shall: (i) discontinue such
excessive use; (ii) upgrade the system so affected to the satisfaction of
Landlord at Tenant's sole cost and expense, including any costs for preparation
of working drawings and specifications, Landlord's reasonable, out-of-pocket
expenses associated therewith and over-time pay for Building engineering staff;
or (iii) provide, install and maintain a supplementary device approved by
Landlord at Tenant's sole cost and expense, including any costs for preparation
of working drawings and specifications, Landlord's reasonable, out-of-pocket
expenses associated therewith and over-time pay for Building engineering
staff. In the event of an emergency, Landlord may, but it shall not
be required to, without notice to Tenant, correct, repair and restore the
portion of the Building so affected. Any actual and reasonable,
out-of-pocket expense to Landlord, including but not limited to any costs for
preparation of working drawings and specifications, Landlord's reasonable,
out-of-pocket expenses associated therewith and over-time pay for Building
engineering staff, resulting from the operation, repair, maintenance and removal
of any such supplementary structural support, exhaust, heating, cooling,
ventilation, electrical, life safety, water or sewer systems, including rent for
space occupied by any such supplementary structural support, exhaust, heating,
cooling, ventilation, electrical, life safety, water or sewer systems installed
outside the Leased Premises shall be borne exclusively by Tenant and shall be
paid by Tenant to Landlord as Additional Rent within thirty (30) days after
Tenant's receipt of an invoice therefor.
8.8 Security. Tenant
acknowledges and agrees that Landlord shall only be required under this Lease to
provide security measures with respect to the Building that are customary from
time to time in office buildings in downtown Chicago, Illinois. Any
special or extra security devices or measures required or related to Tenant's
Use of the Leased Premises shall be the sole responsibility and cost of Tenant
and Landlord shall have no responsibility or liability therefor and shall not be
required to take (or incur the cost of) any special or extra security measures
with respect to the Building because of the nature of Tenant's Use of the Leased
Premises. In any event, the installation by Tenant of any measures or
devices shall be done in accordance with the provisions of this Lease,
including, without limitation, Article 10. As of the Effective
Date, the following security measures are in place in the Building, which
security measures are subject to change in Landlord's discretion: (i) security
staff is stationed in the lobby of the Building on the first floor twenty-four
(24) hours per day, seven (7) days per week; (ii) tenants of the Building and
tenants' employees and invited guests have access to the Building on weekdays
between the hours of 7:00 A.M. and 6:00 P.M.; and (iii) after 6:00 P.M. and
prior to 7:00 A.M. on weekdays and at all times on weekends, tenants and
tenants' authorized employees may gain access to their premises in the Building
by entering at the Monroe Street entrance and scanning their security access
card at the security desk. Landlord shall use commercially reasonable
efforts to provide a security guard at the LaSalle Street entrance from 7:00
A.M. until 9:00 A.M. on weekdays at no additional cost to Tenant (except as
otherwise provided in item (i) below); provided, however, that if providing such
security guard results in an increase in costs to Landlord, Tenant shall have
the option to: (i) reimburse Landlord for the incremental increase in costs, or
(ii) waive its right to obligate Landlord to provide such additional security
service.
8.9 Satellite/Communications
System. Upon the execution and delivery of this Lease by
Landlord and Tenant, Tenant shall have the right to operate a
satellite/communications system on Tenant's pro rata share of space on the roof
of the Building, in an area designated by Landlord in accordance with all of the
restrictions, covenants and conditions set forth in Exhibit F attached hereto and
made a part hereof.
9. REPAIRS
AND MAINTENANCE.
9.1 Tenant's
Repairs and Maintenance Generally. Except as otherwise
expressly provided in Section 9.3 or elsewhere in this Lease, Tenant shall,
at Tenant's sole cost and expense, maintain and keep the entirety of the Leased
Premises in good order, repair and condition at all times during the
Term. Tenant shall promptly and adequately repair any and all damage
to the Leased Premises and replace or repair all damaged or broken fixtures and
appurtenances within a reasonable period of time. In addition, Tenant
shall, except as otherwise expressly set forth in Section 9.3, at Tenant's
expense, make all repairs, replacements, alterations, installations,
modifications, retrofitting, rehabilitation and additions to the Leased Premises
as may be required by any Laws and shall at all times keep the Leased Premises
in compliance with such. If Tenant does not do so, Landlord may, but
need not, on or after ten (10) days advance notice to Tenant (except in the case
of an emergency, in which event reasonable simultaneous verbal notice shall be
given to Tenant), make any repairs, replacements, alterations, installations,
modifications, retrofitting, rehabilitation and additions which Tenant is
obligated to make and Tenant shall pay Landlord the reasonable, out-of-pocket
cost to Landlord thereof, within thirty (30) days after being billed for
same. Landlord may also make repairs, replacements, installations,
alterations, modifications, retrofitting, rehabilitation and additions to or in
the Leased Premises and in any portion of the Building as Landlord shall
reasonably deem necessary, or as Landlord may be required to do by governmental
authority or court order or decree and the costs of same shall be deemed
Operating Expenses unless specifically set forth in this Lease to the
contrary. Except as otherwise expressly set forth in this Lease, no
such entry or repairs by Landlord shall be deemed or construed to be a
disturbance of Tenant's quiet or peaceable possession of the Leased Premises or
of any rights of Tenant under this Lease, however, Landlord shall make
commercially reasonable efforts not to interfere with Tenant's Use.
9.2 Specific
Items of Tenant Repair and Maintenance. Without limitation of
the generality of Article 9, Tenant shall be solely responsible for, and at
its own cost and expense shall:
(A) Repairing,
maintaining and replacing Tenant's ATMs (as hereinafter defined) and Tenant's
satellite/communications system (as set forth in Section 8.10).
(B) Pay for
all revisions, repairs and alterations of existing electrical work, such as
floor sockets, low voltage wires, police calls, burglar alarms and the like, and
likewise pay for any and all additional electronic controls, motors, machinery,
appliances or equipment installed at Tenant's request and for any and all
revisions, repairs and alterations made necessary by reason of the installation
of such additional motors, machinery, appliances or equipment and likewise pay
the cost of relocating any motors, machinery, appliances or equipment now or
hereafter located upon the Leased Premises.
(C) Subject
to the terms herein, and pursuant to Articles 13 and 16 of this Lease, and
normal wear and tear excepted, keep and maintain in good, safe and proper repair
and condition and in conformity with all applicable Laws: (i) fire and alarm
systems for Tenant's computer and communications rooms that Tenant has installed
in the Leased Premises (if any); (ii) any supplemental air conditioning
units (and all auxiliary and ancillary systems, facilities and piping
appurtenant thereto) installed or utilized by Tenant and located within the
Leased Premises; (iii) any security devices installed by Tenant in the Leased
Premises or measures required or related to Tenant's Use and located in or
related to the Leased Premises; (iv) mechanical, electrical, plumbing or life
safety devices required or related exclusively to Tenant's Use; and (v) any
other portions of the Building which Tenant is responsible to maintain pursuant
to the terms of this Lease. If required by any applicable
governmental or quasi-governmental authority, Tenant shall remove any or all of
such supplemental air conditioning units (and all auxiliary and ancillary
systems, facilities and piping appurtenant thereto) that have been installed by
Tenant at Tenant's sole cost and expense.
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(D)
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Keep
and maintain in good, safe and proper repair and condition and in
conformity with all applicable Laws the satellite/communications system
installed by Tenant on the roof of the Building as more particularly
described on Exhibit
F attached hereto and made a part
hereof.
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9.3 Landlord's
Maintenance and Repair.
(A) Subject
to the provisions of Articles 13 and 16, and Section 30.18, Landlord shall
maintain the Building in a first-class manner including, without limitation,
(i) maintaining the common areas of the Property, except for those common
areas specifically required to be maintained by other tenants of the Building or
third parties; (ii) repairing and maintaining the structure of the
Building; and (iii) maintaining the plumbing, heating, air conditioning,
ventilation, life safety and electrical facilities and systems in the Building
(other than those specialized facilities and systems Tenant is required to
maintain under Section 9.2). The cost of the foregoing items (i)
through (iii) shall be deemed part of Operating Expenses except if excluded
expressly from Operating Expenses as provided hereinabove. Landlord
is to use reasonable efforts to make all such repairs and perform such
maintenance with due diligence during ordinary business hours and to take
commercially reasonable measures to minimize interference with Tenant's use and
enjoyment of the Leased Premises; provided, however, Landlord shall conduct any
and all Restorative Work (except for curtain wall work) which materially
interferes with Tenant's use and enjoyment of, or access to, the Leased
Premises, outside of Business Hours. Tenant shall not pay or
reimburse Landlord directly for the incremental increase in costs for such
after-Business Hours Restorative Work; however, such costs may be included in
Operating Expenses by Landlord and, in such event, Tenant shall be required to
reimburse Landlord for Tenant's Proportionate Share of such
costs. Any alterations, maintenance and/or repairs which Landlord or
a Landlord Party makes, or is entitled to make, pursuant to this Lease, in,
around, or near the Leased Premises are collectively referred to herein as the
"Restorative Work". Notwithstanding anything contained in this
Lease to the contrary, Landlord and the Landlord Parties shall conduct all
Restorative Work: (a) using reasonable commercial efforts not to interfere with
Tenant's use and enjoyment of the Leased Premises; (b) using reasonable
commercial efforts to minimize any decrease in the level of Building services
provided by Landlord; (c) so that Tenant is not deprived access to the Leased
Premises; (d) so that all items brought into the Leased Premises by Landlord and
the Landlord Parties shall be removed prior to the start of the next business
day (unless such items are required on a temporary basis); and (e) using
reasonable commercial efforts not to block or blacken any windows in the Leased
Premises or Tenant's signs for a prolonged period of time. If any
Restorative Work conducted by Landlord or any Landlord Party during Business
Hours, Monday through Friday, materially interferes with Tenant's use of, or
access to, all or any portion of the Leased Premises, and such material
interference: (i) continues, after Landlord has received written notice thereof
from Tenant, for more than three (3) consecutive business days; and (ii) does
not result from curtain wall work or any tenant improvement work undertaken by
any other tenant or occupant of the Building (unless Landlord has reasonable
control over such tenant improvement work pursuant to the terms of such tenant's
lease), Tenant shall be entitled to receive an abatement of Rent only with
respect to that portion of the Leased Premises so affected, beginning on the
fourth (4th)
business day of the material interference to the day on which Landlord ceases
the Restorative Work causing such material interference.
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(B)
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Landlord
shall repair, maintain, and replace, as necessary, the following, in good
working condition, throughout the Term of this Lease, at Tenant’s sole
cost and expense (which cost therefor shall be competitively bid and shall
not be subject to any Landlord markup thereto): (i) the marble surfaces,
stenciled ceiling and skylight (“Ornamental Surfaces”) in the Grand
Banking Hall at such intervals during the Term as shall be reasonably
necessary, in accordance with the minimum standards which are attached
hereto as Exhibit
G-1, (ii) the Escalators at such intervals during the Term as shall
be reasonably necessary, in accordance with the minimum standards which
are attached hereto as Exhibit G-2, and (iii)
Tenant's Dedicated Elevator in accordance with the minimum standards
established by Landlord for maintenance of the Building elevators commonly
used by tenants and other occupants of the Building. Tenant
shall pay Landlord, within thirty (30) days after receipt of Landlord’s
written request therefor, (1) any reasonable, out-of-pocket costs
associated with the foregoing maintenance and repairs, including but not
limited to, the costs of any necessary cleaning supplies, service
contracts for such general maintenance and repairs, overtime pay for any
housekeeping or engineering personnel performing such work after hours,
(2) any increased cost to Landlord for insuring the foregoing items,
including but not limited to the costs of any deductible in the event of a
claim, and (3) subject to Section 12.2, any actual, out-of-pocket costs
incurred by Landlord in replacing the foregoing (including but not limited
to the amount of Landlord's insurance deductible) in the event that the
need for such replacement directly results from Tenant’s or any Tenant
Party’s negligence or willful misconduct. Except as otherwise
expressly provided in this Section 9.3(B), (A) Tenant shall not be
responsible for any costs and expenses incurred by Landlord with respect
to the replacement of any Ornamental Surfaces in the Grand Banking Hall
and the Escalators, or any capital-related expenses with respect to the
replacement of Tenant’s Dedicated Elevator (excluding the replacement of
cab decorations and finishes); and (B) Landlord shall replace cab
decorations and finishes, as necessary, with materials and finishes
consistent with those in other elevator cabs in the Building, and Tenant
shall reimburse Landlord, within thirty (30) days after receipt of
Landlord's written request therefor, for Landlord's reasonable,
out-of-pocket expenses, for such replacement items, which expenses shall
not be subject to any Landlord
markup.
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9.4 Reservation
of Rights. Except as otherwise expressly set forth herein,
this Lease does not grant any rights to light, air or view over or about the
Building or any other real property. Landlord specifically excerpts
and reserves to itself all rights to and the use of any roofs (subject to
Tenant's right to install and use the satellite/communications system provided
for in Section 8.10 hereof), the exterior portions of the Leased Premises,
including fire escapes and ladders, the land, improvements and air and other
rights below the improved floor level of the Leased Premises, or above the
improved ceiling of the Leased Premises, or outside the demising walls of the
Leased Premises and such areas and risers within the Leased Premises as are used
for utility lines and other facilities or equipment required to serve the
Building or any occupants of the Building, and Landlord specifically reserves to
itself the right to use, and the right and obligation to maintain and repair
same; no rights with respect thereto are conferred upon Tenant, unless otherwise
specifically provided herein. Except as otherwise expressly set forth
herein to the contrary, Landlord further reserves the right to erect temporary
scaffolding as necessary for improvements or repairs to the
Building.
9.5 Hazardous
Materials. Tenant shall comply, at its sole cost and expense,
with all Laws relating to the use, occupancy and operation of the Leased
Premises; provided, however, Tenant shall not be responsible for remedying any
violation of any Laws in the Leased Premises existing prior to the date Tenant
commences Tenant's Work, Alterations or other construction in the Building, the
obligation and cost for same shall be the sole obligation of Landlord (which
cost shall not be included in Operating Expenses). Tenant agrees
that, other than for office and cleaning supplies used in connection with the
routine maintenance or repair of the Leased Premises in full compliance with
Laws, no Hazardous Materials shall be used, located, stored or processed on the
Leased Premises or be brought into the Building by Tenant, and no Hazardous
Materials will be installed in the Leased Premises or released or discharged
from the Leased Premises (including, but not limited to, groundwater
contamination). Without limiting any other provisions of this Lease
or requirements of Laws, Tenant shall comply with any reasonable management
procedures of Landlord in effect from time to time relating to Hazardous
Materials. Notwithstanding anything contained herein to the contrary,
Landlord, and not Tenant, shall be responsible for the remediation of any
Hazardous Materials found in the Leased Premises not directly introduced by
Tenant.
9.6 Biological
Toxins Tenant and Tenant's
contractors, subtenants, assignees and agents shall not knowingly create or
exacerbate the growth of mold and fungus (collectively, "Biological Toxins") in
the Leased Premises. In the event that Tenant observes, smells or
suspects the presence of any Biological Toxins in the Leased Premises or the
Building, Tenant shall promptly notify Landlord in writing of such presence and
the precise location thereof. Landlord's right of entry pursuant to
the terms and provisions of this Lease shall include the right to enter, inspect
and test the Leased Premises for the presence of Biological Toxins or conditions
conducive to the growth of Biological Toxins therein, upon at least twenty-four
(24) hours prior written or verbal notice to Tenant, at Landlord's sole cost and
expense (and not as an Operating Expense). If any such inspection
and/or testing reveals the presence of Biological Toxins in the Leased Premises
which were knowingly created or exacerbated by Tenant, Tenant shall remediate
the same, at its sole cost and expense, in accordance with applicable Laws, and
provide Landlord with a copy of the final report related to such remediation;
otherwise, Landlord shall be responsible to remediate same, at Landlord's cost,
not to be treated as an Operating Expense.
10. ALTERATIONS.
10.1 Generally. Tenant
shall not, without the prior written consent of Landlord, make any alterations,
installations, modifications, improvements or additions to the Leased Premises
(collectively "Alterations"), including any such Alterations that effect the
structural integrity of the Building, or effect the main (as opposed to lines,
ducts and distribution channels located within the Leased Premises) electrical,
exhaust, mechanical, plumbing, and life safety systems, or affect the heating,
ventilating or air conditioning systems of the
Building. Notwithstanding anything to the contrary contained in this
Lease, if said Alterations do not affect (i) the structural integrity of the
Building; or (ii) the heating, ventilating or air-conditioning systems of the
Building; or (iii) the main (as opposed to lines, ducts and distribution
channels located within the Leased Premises) electrical, exhaust, mechanical,
plumbing, life safety, telecommunications, or security systems of the Building;
or (iv) the Escalators; or (v) the Ornamental Surfaces of the Grand Banking
Hall; or (vi) means of ingress and egress to and from (a) premises in the
Building other than the Leased Premises or (b) the Building; or (vii) elevator
usage, then Tenant may make Alterations costing in the aggregate up to
$100,000.00 per Lease Year per floor of the Leased Premises without Landlord's
prior consent so long as Tenant notifies Landlord prior to the making of said
Alterations. Landlord shall not unreasonably withhold, condition or
delay Landlord's consent to any Alterations which cost in the aggregate more
than $100,000.00 per Lease Year per floor of the Leased Premises, so long as
such Alterations do not affect items (i) through (vii) above. Tenant shall
notify Landlord in writing of the nature and scope of any Alterations undertaken
by or on behalf of Tenant with respect to the Leased Premises, whether or not
Landlord's consent thereto is required hereunder. With respect to any
Alterations, Landlord may impose such conditions with respect thereto as
Landlord deems reasonable and appropriate, including, without limitation,
requiring Tenant to furnish Landlord with (a) insurance held by Tenant or
Tenant’s contractors, subcontractors and architects performing such Alterations
against liabilities which may arise out of the Alterations (which insurance must
name Landlord as an additional insured); and (b) copies of plans and
specifications and all permits necessary for the Alterations. In all
events Tenant shall use Landlord's contractors for Alterations to and
Alterations affecting any of the following: (i) heating, ventilation, and
air-conditioning systems of the Building; (ii) main (as opposed to lines, ducts
and distribution channels located within the Leased Premises) mechanical,
exhaust, electrical, plumbing and life safety systems; (iii) the elevators; (iv)
the Escalators; and (v) the Ornamental Surfaces of the Grand Banking
Hall. Tenant shall promptly pay to Landlord or Tenant's contractors,
as the case may be, as and when due, the cost of all such Alterations, which
costs shall be competitively-priced and without xxxx-up by
Landlord. Such amount shall be payable from time to time as the work
comprising the Alterations progresses within thirty (30) days after Tenant is
billed therefor from time to time by Landlord. Upon completion of the
Alterations, Tenant shall deliver to Landlord, if payment is made directly to
contractors, evidence of payment of all contractors and subcontractors,
affidavits, full and final waivers of all liens for labor, services and
materials sufficient to waive and release all rights to liens under the Illinois
Mechanic's Lien Law arising from the work done and such other supplemental
documentation as Landlord may reasonably require, all in form and substance
reasonably satisfactory to Landlord. Tenant agrees to indemnify,
defend and hold Landlord harmless from, and shall pay, all liabilities, claims,
judgments, costs, damages, fines, penalties, liens and expenses related to the
Alterations except, if such liability, claim, judgment, cost, damage, fine,
penalty, lien or expense is the direct result of the negligence or willful
misconduct of Landlord or any Landlord Party. All repairs and
Alterations done by Tenant or its contractors, including work done pursuant to
Articles 9 or 10 shall be done in a good and workmanlike manner using only
high quality grades of materials and shall comply with all insurance and other
reasonable requirements of Landlord (including any reasonable management
procedures relating to Hazardous Materials) and all applicable
Laws. At all times Tenant shall cause contractors and others
performing Alterations for Tenant to work in harmony with the contractors,
agents and employees performing work in the Building for Landlord or
others. Notwithstanding anything contained herein to the contrary,
Landlord shall not be entitled to any move-in, move-out, elevator or supervisory
fee, in connection with Tenant's taking or returning all or any portion of the
Leased Premises (except as otherwise expressly set forth herein or the
Workletter with respect to the Tenant’s Work), nor shall Landlord be entitled to
any supervisory fee or other fee in connection with Alterations.
10.2 Removal. All
Alterations, whether temporary or permanent in character, including but not
limited to all vaults and internal staircases, added to the Leased Premises by
Tenant, and except for moveable furniture, moveable partitions, trade fixtures
and other equipment belonging to Tenant which are not removed by Tenant prior to
the expiration or earlier termination of this Lease or of the termination of
Tenant's right to possession of the Leased Premises or any portion thereof,
whichever is earlier, by lapse of time or otherwise, shall be relinquished to
Landlord in their then "as-is", but broom-clean, condition. Tenant covenants
that it shall not allow waste to occur within the Leased Premises at any time
during the Term. Notwithstanding anything to the contrary contained
in this Lease, upon the expiration of the Term or the termination of this Lease
or the termination of Tenant's right of possession of the Leased Premises,
Tenant shall not be required to remove: (i) any Ordinary Alterations (as
hereinafter defined), (ii) any Alterations, additions or modifications
constructed within the Leased Premises as part of Tenant's Work or otherwise
(collectively, the "Leasehold Improvements") that Landlord did not identify to
Tenant in writing as requiring removal or restoration upon the Expiration Date
or earlier termination of this Lease at the time of plan approval and which are
not Ordinary Alterations, and (iii) any Leasehold Improvements existing within
the Leased Premises as of the Effective Date of this Lease. For the
purposes of this Section 10.2, "Ordinary Alterations" shall mean and include any
Leasehold Improvements that: (a) are customary for general office use; and (b)
do not adversely affect the structure of the Building; and (c) do not
exceed the capacity of any Building systems, unless Tenant has upgraded such
systems in connection therewith; and (d) do not constitute extraordinary
improvements or alterations, such as internal staircases, vaults, raised floors
and computer rooms. Landlord shall notify Tenant which non-Ordinary
Alterations, if any, must be removed at the end of the Term by written notice to
Tenant: (A) for non-Ordinary Alterations requiring Landlord's approval, at the
time Landlord approves such non-Ordinary Alterations; or (B) for non-Ordinary
Alterations not requiring Landlord's approval, at the earlier of: (1) thirty
(30) days after Tenant provides Landlord written notice of its intention to
construct a non-Ordinary Alteration, or (2) at least sixty (60) days prior to
the expiration of the Term. If Landlord requires Tenant to remove and
restore any non-Ordinary Alterations constructed in the Leased Premises by
Tenant, in accordance with this Section 10.2, Tenant shall remove and restore
same, at Tenant's sole cost and expense, prior to the Expiration Date or earlier
termination of this Lease.
11. COVENANT
AGAINST LIENS.
Tenant
has no authority or power to cause or permit any lien or encumbrance of any kind
whatsoever, whether created by act of Tenant, operation of law or otherwise, to
attach to or be placed upon Landlord's title or interest in the Land, Building
or the Leased Premises, and any and all liens and encumbrances created by Tenant
shall attach to Tenant's interest only. Tenant covenants and agrees
not to cause or allow any liens to be placed against the Land, Building or the
Leased Premises as a result of Tenant’s construction or other acts in the Leased
Premises or Tenant or Tenant's agents, employees, contractors and licensees acts
in the Building and in case of any such lien attaching or claim thereof being
asserted, Tenant covenants and agrees no later than forty-five (45) days from
the filing thereof or such claim being asserted (i) to cause it to be
released and removed of record or (ii) to provide Landlord with
endorsements (reasonably satisfactory to Landlord and Mortgagee) to Landlord and
Mortgagee's title insurance policies insuring against the existence of or
attempted enforcement of such lien; or (iii) to provide Landlord with a bond in
form and substance acceptable to Landlord. In the event that such
lien is not released, removed, insured over or bonded around within said
forty-five (45) day period Landlord, at its sole option, may take all action
necessary to release and remove such lien (without any duty to investigate the
validity thereof) and Tenant shall, within ten (10) days following notice,
either before or after such release and removal, pay or reimburse Landlord for
all sums, costs and expenses (including, without limitation, reasonable
attorneys' fees and court costs) incurred by Landlord in connection with such
lien together with interest thereon at the Interest Rate.
12. INSURANCE
AND SUBROGATION.
12.1 Tenant's
Insurance. Tenant shall carry insurance during the entire Term
hereof insuring Tenant, and insuring Landlord, Landlord's beneficiaries (if
Landlord is ever a land trust), any property management company, all Mortgagees
and Ground Lessors and their respective agents, partners and employees, with
terms, deductibles, coverages and in companies in good standing and licensed to
do business in the State of Illinois and otherwise reasonably satisfactory to
Landlord having a "Best's" rating of "A-" or higher in the following coverages
in the following amounts:
(A) Public
liability insurance with the broad form commercial liability endorsement,
including contractual liability insurance covering Tenant's indemnity
obligations hereunder, insuring against claims for death, bodily injury,
personal injury and property damage occurring upon, in or about the Leased
Premises in an amount not less than $1,000,000.00 per occurrence and having a
general aggregate amount on a per location basis of not less than
$2,000,000.00. Landlord shall be named as an additional insured on
such policy.
(B) Excess
liability insurance with a limit of $5,000,000.00 naming Landlord as an
additional insured.
(C) "Special
form" physical damage insurance including fire, sprinkler leakage, vandalism and
extended coverage for the full replacement cost of all additions, improvements
and alterations to the Leased Premises, including Landlord's Work and/or
Tenant's Work, if any (providing that Landlord is an additional named insured as
its interest may appear) and of all office furniture, trade fixtures, office
equipment, merchandise and all other items of Tenant's property on the Leased
Premises.
(D) Intentionally
Omitted.
(E) Prior to
any event that Tenant intends to or will serve liquor, host liquor liability
insurance. Landlord shall be named as an additional insured on such
policy.
Tenant
shall, prior to the commencement of the Term and prior to each Lease Year or
policy period furnish to Landlord certificates in form reasonably satisfactory
to Landlord evidencing the foregoing insurance coverage. Tenant's
policies shall state that such insurance coverage may not be amended in any
material way, canceled or not renewed 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). Tenant shall have the right to provide
the foregoing insurance under a master or blanket policy of insurance covering
other properties of Tenant or its affiliates provided that an endorsement
insuring segregated amounts sufficient to satisfy said insurance requirements
hereunder is provided. Landlord hereby agrees that Chubb and
St. Xxxx/Traveler's are insurance companies acceptable to Landlord as of the
Effective Date.
12.2 Waiver of
Subrogation. Each of the parties hereto hereby releases and
waives all claims for recovery from the other party and its agents and employees
for loss or damage to property or business sustained in or about the Property or
the Leased Premises, which loss or damage (a) is or would be insured
against under property or physical damage insurance required to be carried by
the pertinent party pursuant to this Lease or (b) if the coverage under
policies actually carried by the pertinent party is greater, is insured against
under such policies.
Landlord
and Tenant each agree to have all property or physical damage insurance which it
may carry 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 12.1 above or Released Parties and the Indemnitees, each as
described in Section 14.1 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 party's policy shall
provide further that the insurer waives all rights of subrogation which such
insurer might have against the other party's insureds.
12.3 Landlord's
Insurance.
(a) Landlord
shall, at all times during the Term, maintain the following insurance
coverages:
(i) "Special
form" fire and casualty insurance on a full replacement cost basis (adjusted
from time-to-time as necessary) covering the Building (but excluding coverage
for the Landlord's Work (once completed), as defined in Exhibit B attached hereto, or
any subsequent Alterations which are installed or maintained by Tenant), which
insurance:
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(A)
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includes
coverage, whether by way of endorsement or otherwise, over all damage by
water, whether by way of flood or by way of back-up, seepage, or
overflow;
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(B)
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contains
the following endorsements:
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(1)
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Loss
of rents or business interruption for periods equal to the maximum period
of permissible rent abatements during restoration under the
Lease;
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(2)
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Building
ordinance coverage;
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(3)
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Agreed
amount;
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(4)
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Extra
expense
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(C)
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contains
deductible amounts not in excess of $100,000, provided that in the event
deductible for comparable insurance provided by landlords in the market
increase, Landlord shall be permitted to increase the deductible in
accordance with such market increases;
and
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(D)
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contains
no co-insurance provisions.
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(ii) Commercial
general liability and broad form property damage insurance in such amounts as
shall be appropriate for first-class office buildings in Chicago, but in any
event with limits of not less than $1,000,000 with respect to any one
occurrence, accident or disaster or incidence of negligence.
(iii) Broad
form comprehensive boiler and machinery insurance on any such equipment or in
the Building in an amount not less than $2,000,000 for damage to property,
bodily injury or death resulting from such covered perils as found in a standard
Comprehensive Boiler and Machinery policy. Such policy shall have a
deductible not in excess of $50,000, provided that in the event deductible for
comparable insurance provided by landlords in the market increase, Landlord
shall be permitted to increase the deductible in accordance with such market
increases.
(iv) Umbrella
liability coverage in excess of the underlying limits of the aforementioned
insurance in amounts not less than $9,000,000.
(v) Worker's
compensation insurance covering all persons employed in connection with any work
done on or about the Building with respect to which claims for death or bodily
injury could be asserted against Landlord, Tenant or the Building, complying
with the laws of the State of Illinois.
(vi) During
any period in which substantial alterations are being performed by Landlord in
the Building, Builder's Risk Insurance (on a completed value, non-reporting
basis) against "all risks of physical loss", including collapse and transit
coverage, with deductibles not to exceed $100,000, covering the total
replacement cost of work performed and equipment, supplies and materials
furnished in connection with such construction or repair, together with
endorsements that the builder's risk insurance will not be invalidated due to
occupancy or partial occupancy of the Building or any improvements therein
during construction.
(b) All
insurance shall be written by insurance companies with a "Best's" rating of "A-"
or better and a financial category of XI or better, and be legally qualified to
issue such insurance in the State of Illinois.
(c) Landlord
shall have the right to provide the foregoing insurance under a master or
blanket policy of insurance covering other properties of Landlord or its
affiliates provided that an endorsement insuring segregated amounts sufficient
to satisfy said insurance requirements hereunder is provided.
12.4 Avoid
Action Increasing Rates. Tenant shall comply with all
applicable Laws, and requirements and recommendations of insurance rating
agencies with respect to the Leased Premises and shall not, directly or
indirectly, make any use of the Leased Premises which may thereby be prohibited
or be dangerous to person or property, which may jeopardize any insurance
coverage, increase the cost of insurance or require additional insurance
coverage (except that in the case of increased insurance costs or additional
insurance required, Tenant shall have the right to make such use of the Leased
Premises provided that Tenant pays such increased costs or procures such
additional insurance coverage at its sole cost and expense prior to such
use). Landlord acknowledges and agrees that Tenant's use of the
Leased Premises as a retail and commercial bank will not violate the terms of
this Section.
13. FIRE OR
CASUALTY.
13.1 Generally. Article 9
hereof notwithstanding, if the Leased Premises (including machinery or equipment
used in its operation) shall be damaged by fire or other casualty and if such
damage does not, in the reasonable judgment of Landlord, constitute a Material
Casualty then Landlord shall, subject to the limitations set forth below, repair
or restore such damage with reasonable promptness. Notwithstanding
the foregoing, Landlord shall not be obligated to expend in repairs and
restoration an amount in excess of the proceeds of insurance recovered with
respect to such casualty or to repair or restore any damage occurring during the
last two (2) Lease Years (unless Tenant exercises, by delivering written notice
to Landlord within thirty (30) days after the date of such fire or other
casualty, any remaining Renewal Option, as set forth in Article
34). If any such damage constitutes a Material Casualty or occurs
during the last two (2) Lease Years (and Tenant does not timely elect to
exercise any remaining Renewal Option or no further Renewal Options exist),
Landlord or Tenant shall have the right to terminate this Lease as of the date
of such damage upon giving written notice to the other party at any time within
one hundred twenty (120) days after the date of such damage. If
Landlord or Tenant does not give notice of such termination within said time
period, then both parties shall be deemed to have elected not to terminate this
Lease. If portions of the Leased Premises remain tenantable after the
date of casualty and Landlord or Tenant so elects to terminate this Lease solely
as to the portion of the Leased Premises that was damaged, then appropriate
prorations of Annual Base Rent, Additional Rent and other sums due hereunder
shall be made. If Landlord undertakes to repair the portion of the
Leased Premises or the Building that is damaged by such Material Casualty and
Landlord is not able to repair or restore such damage within three hundred and
sixty-five (365) days after the earlier to occur of: (i) the date Landlord
settles with Landlord's insurance company, and (ii) one hundred and twenty (120)
days after the date of such damage or destruction (the "Rebuild Period"), Tenant
shall have the right to terminate this Lease by delivering written notice
thereof to Landlord within sixty (60) days following such three hundred and
sixty-five (365) day period; provided, however, that if Landlord completes such
repairs and restoration within thirty (30) days after Landlord’s receipt of
Tenant’s written termination notice, and notice thereof is received by Tenant
within such thirty (30) day period, Tenant's termination notice shall
automatically and without further action by the parties hereto be deemed
withdrawn, and this Lease shall remain in full force and effect. If
Force Majeure occurs during Landlord's construction of the Building or the
Leased Premises after the occurrence of such Material Casualty, Landlord's
Rebuild Period shall toll one day for each day of Force Majeure delay, provided
that Landlord's total Rebuild Period shall not exceed one hundred and eighty
(180) days after the expiration of the initial three hundred and sixty-five
(365) day period.
13.2 Right To
Abatement. As of the date of the fire or casualty, Annual Base
Rent and Additional Rent shall xxxxx (as determined on a square footage basis)
as to those portions of the Leased Premises as are, from time to time,
Untenantable as a result of such damage and Tenant's Proportionate Share shall
be adjusted accordingly until the date which is the earlier to occur of: (i) one
hundred twenty (120) days after the later of (a) the Actual Completion Date (as
hereinafter defined) and (b) the Estimated Completion Date (as hereinafter
defined); and (ii) the date upon which Tenant actually occupies and conducts
business within the previously Untenantable portions of the Leased
Premises. If Landlord is obligated to or elects to repair the
Building or the Leased Premises after any Material Casualty or non-Material
Casualty and this Lease is still in full force and effect, Landlord shall
deliver a written notice to Tenant within ninety (90) days of the date of such
Material Casualty or non-Material Casualty setting forth the date upon which
Landlord expects the Leased Premises to be substantially repaired by Landlord
and ready for delivery to Tenant (the "Estimated Completion
Date"). For the purposes of this Article 13, the "Actual Completion
Date" shall be defined as the date Landlord delivers the Leased Premises to
Tenant in a condition which will allow Tenant to carry out and complete Tenant's
restoration thereof. Notwithstanding anything to the contrary
contained in this Section 13.2, in the event said fire or casualty was caused by
or the result of any act or omission of Tenant, its agents, contractors or
employees, or anyone holding by, through or under Tenant, Annual Base Rent and
Additional Rent shall xxxxx, but only to the extent the proceeds of Landlord’s
rental abatement insurance are actually received by Landlord, less the amount of
any deductible.
13.3 Repair
Obligations. In the event of a fire or other casualty, Tenant
may, at Tenant's sole cost and expense, repair or restore any items included in
Tenant's Work and all Alterations; provided, however, if (i) Tenant assigns to
Landlord Tenant’s property and casualty insurance proceeds plus the amount of
the deductible, if any, for all items included in Tenant's Work and Alterations
to the extent paid for by Landlord, Tenant shall not be required to repair or
restore the same; and (ii) if Tenant does not assign such property and casualty
insurance proceeds, Landlord shall have no further obligation to repair or
restore the Leased Premises pursuant to this Article 13, and Tenant may restore
same at its sole cost and expense (provided, however, that Tenant may only elect
not to restore same so long as Tenant continues to pay Rent to Landlord with
respect to such damaged portion of the Leased Premises). In the event
of a fire or other casualty, Landlord shall be responsible for repairing or
restoring all other portions of the Leased Premises not mentioned in the
foregoing sentence to the extent of property and casualty insurance proceeds
recovered with respect to said casualty. Tenant acknowledges that
Landlord shall be entitled to the full proceeds of any property insurance
coverage, whether carried by Landlord or Tenant, for damage to those items or
decorations which Landlord is obligated to repair, it being agreed that Tenant
shall be entitled to the proceeds from any property insurance for items insured
by Tenant which Landlord has no obligation to repair. Notwithstanding
the foregoing to the contrary, in the event this Lease is terminated in its
entirety as a result of such casualty: (i) all proceeds of Landlord's insurance
shall be payable to Landlord; and (ii) Tenant shall reimburse Landlord only for
a sum equal to the amount of the unamortized portion of Landlord's Maximum
Contribution (determined at the time such casualty
occurs). Notwithstanding the foregoing to the contrary, in the event
this Lease is terminated as to only a portion of the Leased Premises
("Terminated Premises") as a result of such casualty, then with respect to the
Terminated Premises: (i) all proceeds of Landlord's insurance relative to the
Terminated Premises shall be payable to Landlord; and (ii) Tenant shall
reimburse Landlord only for a sum which is equal to the amount of the
unamortized portion of Landlord's Maximum Contribution (determined at the time
such casualty occurs) applicable to the Terminated Premises. Thus, by
way of example, if the Lease is terminated with respect to the entire second
floor only, (i) Landlord shall receive all proceeds of Landlord's insurance
relative to the second floor; and (ii) Tenant shall reimburse Landlord for the
unamortized portion of Two Million Seven Hundred Thirty Five Thousand One
Hundred and Twenty and 00/100 Dollars ($2,735,120.00) (determined at the time
such casualty occurs), which amount represents that portion Landlord's Maximum
Contribution ($80.00 per Rentable Square Foot) applicable to the second floor
(which consists of 34,189 Rentable Square Feet).
13.4 Landlord's
Right to Proceeds of Tenant's Insurance. In the event of any
casualty that results in a termination of this Lease by Landlord as provided in
this Article 13, then, notwithstanding anything herein to the contrary, Landlord
shall be entitled to receive the proceeds of Tenant's insurance described in
Section 12.1(C) above, an amount equal to the unamortized value of the Leasehold
Improvements insured thereunder to the extent paid for by Landlord.
13.5 Non-Material
Casualty. If, at any time during the Term of this Lease,
except during the final Lease Year (unless Tenant exercises any remaining
Renewal Option, if any, by delivering written notice of Tenant's exercise to
Landlord within thirty (30) days after the date of such casualty), the Leased
Premises or the Building are damaged or destroyed, and such damage or
destruction does not constitute a Material Casualty, Landlord shall be obligated
to repair and restore those portions of the Leased Premises and the Building so
affected. If Landlord is not able to repair or restore such damage
within three hundred and sixty-five (365) days after the date of such damage or
destruction (which, notwithstanding anything herein to the contrary, such
restoration period shall not be subject to any delays resulting from Force
Majeure or otherwise), Tenant shall have the right to terminate this Lease by
delivering written notice thereof to Landlord within sixty (60) days following
such three hundred and sixty-five (365) day period; provided, however, that if
Landlord completes such repairs and restoration within thirty (30) days after
Landlord’s receipt of Tenant’s written termination notice, and notice thereof is
received by Tenant, Tenant's termination notice shall automatically and without
further action of the parties hereto be deemed withdrawn, and this Lease shall
remain in full force and effect.
14. WAIVER OF
CLAIMS; INDEMNIFICATION.
In
addition to and without limiting or being limited by any other releases or
waivers of claims in this Lease, but rather in confirmation and furtherance
thereof, but subject to the mutual waiver of subrogation and Tenant's rights of
abatement in Sections 8.5, 9.3(A) and Article 13, and to the extent not
prohibited by law, Tenant hereby expressly releases Landlord and agrees that
Landlord and Landlord's respective officers, agents, directors, shareholders,
servants, beneficiaries of Landlord (if Landlord is a land trust) and employees
(collectively, the "Released Parties") shall not be liable for any damage either
to person or property or for damages (direct, consequential or otherwise)
resulting from the loss of use of property sustained by Tenant due to the Land
or the Building or any part thereof or any appurtenances thereto becoming out of
repair or due to the happening of any damage, accident or event in or about the
Land or the Building, including the Leased Premises, or due to any act or
neglect of any tenant or occupant of the Land or the Building or of any other
person unless any of the foregoing is due, in whole or in part, directly or
indirectly, to the negligence or willful misconduct of Landlord or any Landlord
Party. Without limiting the generality of the foregoing, this
provision shall apply to personal injury, death, property damage, loss,
conversion, theft, robbery, assault, battery, mayhem, murder, gas, electricity,
snow, frost, ice, hail, steam, sewage, sewer gas or odors, fire, water or by the
bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and
windows, or by noise, smoke or odors, or by falling plaster, and shall apply
without distinction as to the person whose act or neglect was responsible for
the damage and whether the damage was due to any of the causes specifically
enumerated above or to some other cause of an entirely different kind, unless
the same was due to the negligence or willful misconduct of Landlord or any
Landlord Party. Tenant further agrees that all personal property
located in or upon the Leased Premises receiving and holding areas, or freight
elevators of the Land or the Building, shall be at the risk of Tenant only and
Landlord shall not be liable for any loss or damage thereto or theft or
conversion thereof and Tenant hereby completely releases and exculpates Landlord
therefrom. Without limitation of any other provisions hereof, but
subject to the limitations contained in Section 12.2, and except as
otherwise prohibited by law, Tenant agrees to defend, protect, indemnify and
hold Landlord harmless from and against any and all actual and direct loss,
cost, damage, expense, fine, penalty, lien, claim, cause of action, injuries to
persons or damage to or theft or misappropriation or loss of property and
liability (including, without limitation, attorneys' fees and court costs) and
damages incurred by Landlord arising out of, related to or in connection with
Tenant's use, maintenance, repair and occupancy of the Leased Premises and the
Building or negligence or willful misconduct of Tenant (whether or not such
negligence or willful misconduct constitute a violation of applicable law), its
servants, agents, employees, representatives, contractors, suppliers or workers
or from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease. Notwithstanding anything herein to the contrary,
but subject to the limitations contained in Section 12.2, Landlord shall
not be indemnified from liability for damage or injury to persons or property
caused by or resulting from the negligence or wanton misconduct of Landlord or
any Landlord Party. To the extent not prohibited by law, and subject
to Section 12.2, Landlord agrees to hold harmless and indemnify Tenant and
Tenant's agents, partners, shareholders, members, officers, directors,
beneficiaries and employees (collectively, the "Indemnitees") from any losses,
damages, judgments, claims, expenses, costs and liabilities imposed upon or
incurred by or asserted against the Indemnitees, including without limitation
reasonable attorneys' fees and court costs) for death or injury to, or damage to
the property of, third parties, other than the Indemnitees, that may arise from
the negligence or willful misconduct of Landlord or Landlord
Parties. Such third parties shall not be deemed third party
beneficiaries of this Lease. If any action, suit or proceeding is
brought against any of the Indemnitees by reason of the negligence or willful
misconduct of Landlord or any Landlord Parties, then Landlord will, at
Landlord's expense and at the option of said Indemnitees, resist and defend such
action, suit or proceeding.
15. NONWAIVER.
No waiver
of any provision of this Lease shall be implied by any failure of Landlord or
Tenant to enforce any remedy on account of the violation of such provision, even
if such violation be continued or repeated subsequently, and no express waiver
shall affect any provision other than the one specified in such waiver and that
one only for the time and in the manner specifically stated. No
receipt of monies by Landlord from Tenant after the termination of this Lease
shall in any way alter the length of the Term or of Tenant's right of possession
hereunder or after the giving of any notice shall reinstate, continue or extend
the Term hereof or create a new tenancy or affect any notice given Tenant prior
to the receipt of such monies, it being agreed that after the service of notice
or the commencement of a suit for possession of the Leased Premises or after
final judgment for possession of the Leased Premises Landlord may receive and
collect any Rent due and the payment of said Rent shall not waive, affect or
nullify said notice, suit or judgment. Acceptance by Landlord of less
than the entire amount then due and owing by Tenant shall not constitute a
waiver by Landlord of its rights to further collection.
16. CONDEMNATION.
If
(a) the Land or the Building or any portion thereof which, in Landlord's
reasonable judgment, renders the remainder thereof economically unfeasible,
shall be taken or condemned or purchased under the threat of condemnation or
exercise of the right of eminent domain by any competent authority for any
public or quasi-public use or purpose; or (b) part of the Leased Premises
shall be taken or condemned or purchased under threat of condemnation or
exercise of the right of eminent domain by any competent authority for any
public or quasi-public use or purpose so that Tenant cannot, in the reasonable
judgment of Landlord, operate its business in the remaining portion of the
Leased Premises, Landlord shall have the option, exercisable at its sole
discretion, to cancel this Lease upon the earlier of (i) one hundred eighty
(180) days after notice of such cancellation is delivered to Tenant and
(ii) the date upon which the condemning authority shall take title to the
part so taken, condemned or purchased. In addition, if part of the
Leased Premises shall be taken or condemned or purchased under threat of
condemnation or exercise of the right of eminent domain so that Tenant cannot,
in the reasonable judgment of Landlord, operate its business in the remaining
portion of the Leased Premises, Tenant shall have the option to cancel this
Lease as of the date on which the condemning authority shall take possession of
the part so taken, condemned or purchased, which option shall be exercised by
written notice to Landlord within sixty (60) days following Tenant's receipt of
notice of the intended taking. If a part of the Leased Premises shall
be taken or condemned or purchased under threat of condemnation or exercise of
the right of eminent domain by any competent authority for any public or
quasi-public use or purpose and a right to terminate is available, as aforesaid,
but neither Landlord nor Tenant elects to terminate this Lease, then the Lease
shall terminate only with respect to the portion of the Leased Premises so taken
as of the date possession shall be taken by such authority and thereafter the
Annual Base Rent and Additional Rent shall be reduced in direct proportion to
the amount of rentable square feet of the Leased Premises taken, on a per square
foot basis and Tenant's Proportionate Share shall be adjusted
accordingly. Landlord agrees, at Landlord's cost and expense, as soon
as reasonably practical to restore the remainder of the Leased Premises to a
complete unit of similar quality and character as existed prior to such taking
(to the extent feasible); provided that Landlord shall not be required to expend
more on such restoration than an amount equal to the condemnation award received
by Landlord on account of such taking (less all expenses, costs and legal fees
incurred by Landlord in connection with such award) multiplied by a fraction,
the numerator of which is the number of square feet of Rentable Square Feet so
taken and the denominator of which is the number of rentable square feet in the
Building so taken. No money or other consideration shall be payable
by Landlord to Tenant for the right of cancellation. Whether or not
Landlord exercises such cancellation right, except as otherwise expressly
provided in this Article 16, Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by such taking or
change in configuration, it being agreed by Tenant that each such award,
including the payment for the property acquired and for any and all damages to
any remainder property, is the sole property of Landlord and that Tenant has no
interest therein. Except as otherwise expressly provided in this
Article 16, Tenant's claim is solely limited to compensation from the condemning
authority for the unamortized value of any equipment or other personal property
being acquired (less the unamortized portion of Landlord's Maximum Contribution
expended toward such equipment or personal property which shall remain the
property of Landlord), relocation costs, and "bonus rent" (i.e. if the Rent
payable by Tenant under this Lease is less than the fair market value of rent at
the time of such condemnation); provided such claims do not diminish or
interfere with Landlord's award of compensation. The Tenant may also
claim relocation costs and other benefits pursuant to the Federal Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970 or 735
ILCS 30/10-5-62 or successor statutes. Any of Tenant's obligations
hereunder that have not been finally ascertained, determined or satisfied as of
the date of termination, including, without limitation, payment of Annual Base
Rent and Additional Rent, shall survive such termination and Tenant shall remain
liable therefor.
17. ASSIGNMENT
AND SUBLETTING.
17.1 General.
(A) Except as
set forth in this Article 17 to the contrary, Tenant shall not, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed, (i) assign, convey or mortgage this Lease
or any interest hereunder; (ii) permit or suffer to exist any assignment of
this Lease, or any lien upon Tenant's interest, voluntarily or by operation of
law; (iii) sublet the Leased Premises or any part thereof; or
(iv) permit the use of the Leased Premises by any parties other than Tenant
and its employees. Any such action (without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed) on the part of Tenant shall be void and of no effect, unless
specifically permitted herein. Landlord's consent to any assignment,
subletting or transfer or Landlord's election to accept any assignee, subtenant
or transferee as the tenant hereunder and to collect rent from such assignee,
subtenant or transferee after a Default by Tenant under this Lease shall not
release Tenant or any subsequent tenant from primary liability to perform each
covenant or obligation to be performed by Tenant under this
Lease. Landlord's consent to any assignment, subletting or transfer
shall not constitute a waiver of Landlord's right to withhold its consent to any
future assignment, subletting, or transfer. Tenant shall furnish to
Landlord, simultaneously with Tenant's request for consent to assign the Lease
or sublet the Leased Premises, the following: (1) a true and
correct copy of the executed letter of intent, approved by the assignee,
sublessee or transferee, specifying, among other things, the name and address of
the sublessee, assignee or transferee, the commencement and termination dates of
the proposed sublease or assignment, the portion of the Leased Premises the
proposed sublessee, assignee or transferee, would occupy, and the exact nature
of the proposed sublessee's, assignee's or transferee's business to be conducted
in the Leased Premises; (2) description of the portion of the Leased
Premises to be occupied by such assignee or sublessee; (3) nature of the
proposed assignee, sublessee or transferee's business; (4) the date of the
proposed assignment, subletting or transfer (which shall be not less than
fifteen (15) business days from the date of notice); and (5) current credit
reports and financial statements of the proposed assignee, sublessee or
transferee, including, without limitation, to the extent available, for the most
recent three (3) consecutive years of audited financial
statements. Landlord's consent or rejection of any proposed
assignment, subletting or transfer or Landlord's election under (C) below shall
be delivered within ten (10) business days following Landlord's receipt of the
materials described in (1) through (5) above.
(B) Notwithstanding
(A) above, Tenant shall have the right, without the necessity of having to
obtain Landlord's consent, to assign the Lease or to sublet the Leased Premises
or any portion thereof to any of the following, each of which is an "Affiliate"
(i) an entity controlled by, controlling or under common control with
Tenant (with control meaning the power, whether directly or indirectly, by
contract or equity ownership or otherwise, to control the management and
policies of the entity in question), (ii) a parent or wholly owned
subsidiary of Tenant, (iii) any successor entity of Tenant resulting from a
purchase, merger, consolidation or reorganization, or (iv) any entity which
purchases some, all, or substantially all of the stock or assets of Tenant (each
of the foregoing hereinafter referred to as a "Permitted Transfer") provided
that (a) Tenant is not in Default under the Lease, (b) the Leased Premises shall
be used only for Tenant's Use, (c) if such proposed transferee is a successor to
Tenant by purchase, said proposed transferee shall acquire all or substantially
all of the stock or assets of Tenant's business, or, if such proposed transferee
is a successor to Tenant by merger, consolidation or reorganization, the
continuing or surviving entity shall own all or substantially all of the assets
of Tenant; (d) with respect to a Permitted Transfer to a proposed transferee
described in clause (iii), such proposed transferee shall have a net worth which
is at least equal to the Tenant's net worth as of the day prior to the proposed
purchase, merger, consolidation or reorganization, and (e) Tenant shall provide
Landlord written notice at least thirty (30) days after the effective date of
the proposed purchase, merger, consolidation or reorganization
(C) Except
with respect to any Permitted Transfer, in the event Landlord receives notice of
Tenant's request to assign, sublet or transfer any portion of its interest under
this Lease with respect to the Retail Premises as required under
Section 17.1(A) after the second anniversary of the Commencement Date,
Landlord shall have the right, to be exercised by giving written notice to
Tenant within ten (10) business days after receipt of Tenant's notice, to
recapture all of that portion of the Retail Premises described in Tenant's
notice and such recapture notice, if given, shall terminate this Lease with
respect to the space therein described as of the date stated in Tenant's
notice. If Tenant's notice covers all of the Retail Premises, and if
Landlord gives its recapture notice with respect thereto, the Term of this Lease
with respect to the Retail Premises only shall expire on the date of proposed
assignment, subletting or transfer as stated in Tenant's notice as fully and
completely as if that date had been herein definitely fixed for the expiration
of the Term. If, however, this Lease is terminated pursuant to the
foregoing with respect to less than the entire Retail Premises, the Retail
Premises Annual Base Rent and Tenant's Retail Premises Proportionate Share as
defined in this Lease 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; provided that Landlord shall pay all costs
in connection with the physical subdivision of any portion of the Retail
Premises, which costs shall not be included in Operating
Expenses. This Section 17.1(C) applies to the Retail Premises only;
Landlord has no right to recapture any other portion of the Leased Premises
under this Article 17.
(D) Notwithstanding
the foregoing, Tenant agrees that Landlord's failure or refusal to consent shall
be deemed reasonable if, in Landlord's reasonable opinion: (i) Tenant is in
Default under this Lease or any notice of default (which has not been
subsequently cured) has been given prior to the date consent is requested;
(ii) the proposed sublease or assignment would result in the violation of
any applicable law, ordinance or regulation; (iii) the nature of the
business of an assignee, sublessee or transferee (a) is inconsistent with
any exclusive uses granted in tenant leases existing as of the Effective Date or
hereafter entered into by Landlord pursuant to Section 1(ad) of this Lease,
(b) involves pornography, guns, gambling, massage parlors, adult movies or
entertainment, an abortion clinic or other medical office use, or any illegal
use, (c) would violate any of the rules and regulations set forth on Exhibit D, (d) does not
conform with the Tenant's Use set forth in Article 1, or (e) would
significantly increase the cost of operating the Building or cause a significant
burden on Building systems; (iv) the assignee, sublessee or transferee
(a) is a governmental entity (or subdivision thereof), (b) is a tenant
or occupant in the Building (unless Landlord could not accommodate such tenant
or occupant with additional space in the Building), or (c) intends to use
more than ten percent (10%) of that portion of the Leased Premises it is
subleasing or assigning as an educational or training facility or is in the
primary business of providing education or training; or (v) Tenant has
failed to furnish Landlord the information set forth in Section 17.1(A), in
which event Tenant may submit such information for Landlord’s
reconsideration.
(E) Notwithstanding
anything contained in this Article 17 to the contrary, in no event shall Tenant
be released from any obligations of Tenant under this Lease as a result of any
sublease or assignment, unless Landlord expressly consents to such release in
writing. Tenant shall pay Landlord’s reasonable attorneys’ fees and
costs incurred in connection with Tenant’s request for Landlord’s consent under
this Section 17.1 in an amount not to exceed Two Thousand Five Hundred and
00/100 Dollars ($2,500.00) in any instance.
17.2 Additional
Receipts. In the event that Landlord consents to any
assignment or sublease of any portion of the Leased Premises Landlord shall be
entitled to keep fifty percent (50%) of all Receipts (as defined below)
resulting from any sublease or assignment. For purposes of this
Section 17.2, "Receipts" shall mean the excess of all amounts received by
Tenant from any assignee or sublessee of Tenant over the Annual Base Rent and
Additional Rent payable to Landlord hereunder for the applicable periods,
prorated if necessary, all computed on a per rentable square foot basis and
based upon sound management and accounting principles consistently applied, less
the costs actually incurred by Tenant in connection with such assignment or
sublease, including reasonable attorneys' fees, brokerage commissions and
concessions (collectively, "Tenant's Additional Costs"). Tenant shall
furnish Landlord from time to time upon Landlord's request therefor with a
statement, certified by an authorized representative of Tenant, setting forth in
detail the computation of Receipts, and receipts and documentation
substantiating Tenant's Additional Costs. Any monies or other
consideration in excess of the Annual Base Rent and Additional Rent due from
Tenant hereunder realized by or for the benefit of Tenant by reason of such
assignment or sublease shall be deemed an item of such
Receipts. Notwithstanding anything to the contrary contained in this
Section 17.2, in the event Tenant (A) assigns the Lease or sublets all or any
portion of the Leased Premises to an Affiliate or (B) sublets all or any portion
of the Retail Premises during the first two (2) years of the Term with
Landlord's prior consent, Landlord shall not be entitled to any of the Receipts
and any net profit gained therefrom shall inure solely to the benefit of
Tenant.
17.3 Other
Limitations. Except with respect to the Retail Premises, in no
event shall Tenant or any successor to Tenant assign this Lease or enter into
any assignment, sublease, license, concession or other agreement (collectively
referred to in this Section 17.3 as an "Agreement") for the use, occupancy
or utilization of any part of the Leased Premises which provides for a rental or
other payment for such use based in whole or in part on the net income or
profits derived by any person from the Leased Premises or part thereof so used
and any such purported Agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the use of any part of the Leased
Premises.
17.4 Lease
Assumption; Subtenant Attornment. If Tenant shall assign this
Lease, the assignee shall expressly assume all of the obligations of Tenant
hereunder in a written instrument provided by Landlord and delivered to Landlord
not later than five (5) days prior to the effective date of the
assignment. If Tenant shall sublease any part of the Leased Premises,
Tenant shall obtain and furnish to Landlord, not later than five (5) days prior
to the effective date of such sublease, except as otherwise expressly set forth
herein, and in form reasonably satisfactory to Landlord, the written agreement
of such subtenant to the effect that the subtenant will attorn to Landlord, at
Landlord's option and written request, if this Lease terminates before the
expiration of the sublease. Tenant shall, not later than fifteen (15)
days after the effective date of any such assignment or sublease, deliver to
Landlord a certified copy of the instrument of assignment or
sublease.
17.5 Approved
Users. Notwithstanding anything to the contrary contained in
this Article 17, Tenant shall have the right to permit, from time to time during
the Term, Tenant's clients and consultants (collectively, "Approved Users"), and
employees, officers and directors of Affiliates, to occupy space within the
Leased Premises so long as they are engaged in business with
Tenant. Tenant acknowledges and agrees that the Approved Users are
understood to be Tenant's agents for purposes of liability and indemnification
under this Lease; provided, however, that the Approved Users shall not be deemed
able to bind Tenant in any way whatsoever.
17.6 Retail
Premises
Transfer. Notwithstanding
anything to the contrary contained in this Article 17, in the event that Tenant
subleases all or any portion of the Retail Premises to any sublessee (the
"Retail Subtenant"), Landlord shall have the right to require such Retail
Subtenant to use and occupy the Retail Premises in accordance with reasonable
and customary covenants and conditions generally found in leases for retail
tenants in the Chicago area (but which have not been required of Tenant under
this Lease) (collectively, “Additional Retail Covenants”) including but not
limited to the following: (i) to continuously operate in the Retail Premises,
except for re-fixturing and renovations not to exceed in any Lease Year ninety
(90) consecutive days; (ii) to maintain certain minimum hours of operation
customarily found in other leases for retail tenants in the Chicago metropolitan
area; (iii) to independently contract with third-party professionals for pest
control and waste disposal in the Retail Premises; and (iv) to covenant not to
use the Retail Premises in violation of any exclusives granted to other tenants
or occupants of the Building as of the effective date of such sublease or
assignment. Landlord acknowledges and agrees that such Retail
Subtenant shall have the right to operate its business in the Retail Premises in
accordance with those rights customarily found in those leases for retail
tenants in the Chicago metropolitan area including the right to operate during
the hours of 8:00 a.m. to 8:00 p.m. Monday through Saturday and 8:00 a.m. to
6:00 p.m. Sunday. Prior to consenting to any sublease with respect to
the Retail Premises, Landlord may require the Retail Subtenant to acknowledge
the Additional Retail Covenants in writing in the document governing such
sublease.
18. SURRENDER
OF POSSESSION.
Upon the
Termination Date or upon the termination of Tenant's right of possession of all
or any portion of the Leased Premises, whether by lapse of time or at the option
of Landlord as herein provided or otherwise, Tenant shall, subject to the terms
of Section 10.2 hereof, forthwith surrender the Leased Premises and those other
portions of the Building that Tenant is using or maintaining to Landlord in
their then "as-is", but broom-clean, condition and shall repair any damage to
any such areas whether caused by Tenant's vacation thereof or Tenant's removal
of any items therefrom. Prior to the Termination Date or termination
of Tenant's right of possession of the Leased Premises or any portion thereof,
whichever is earlier, Tenant shall remove its office furniture, trade fixtures,
office equipment, telephone and computer systems (excluding wiring), and all
other items of Tenant's property that Tenant is required to remove pursuant to
Section 10.2 above, from the Leased Premises and shall surrender the Leased
Premises to Landlord in their then "as-is", but broom-clean, condition and shall
deliver keys and combinations to all locks, vaults, cabinets and safes remaining
in the Leased Premises. Tenant covenants that it shall not allow
waste to occur within the Leased Premises at any time during the
Term. Tenant shall pay to Landlord upon demand the cost of repairing
any damage to the Leased Premises or to the Building caused by any such removal
or failure to remove items that Tenant is required to remove under this Article
or Section 10.2. If Tenant shall fail or refuse to remove any such
property or improvements from the Leased Premises or the Building, Tenant shall
be conclusively presumed to have abandoned the same, and title thereto shall
thereupon pass to Landlord without any cost to Landlord, whether by set-off,
credit, allowance or otherwise, and Landlord, may at its option accept the title
to such property, and (i) store, destroy or otherwise dispose of the same
without incurring liability to Tenant or any other person, and (ii) at Tenant's
expense may (only with respect to items which Tenant is required to remove
pursuant to this Article or Section 10.2) remove the same or any part in
any manner that Landlord shall choose, repairing any damage to the Leased
Premises or the Building caused by such removal. In the event
Landlord incurs any removal or storage or other costs by reason of Tenant's
failure to remove any property which Tenant is obligated to remove under this
Article, Tenant upon demand shall pay to Landlord the reasonable, out-of-pocket
amount of costs so incurred. The provisions of this Article 18 shall
survive the expiration or termination of this Lease in accordance with Section
30.14 hereof.
19. HOLDING
OVER.
If Tenant
retains possession of the Leased Premises or any part thereof for three (3)
months or less following the Termination Date, Landlord shall treat Tenant as a
tenant at sufferance and Tenant shall pay Landlord monthly rent equal to one
hundred and twenty-five percent (125%) of the rate of Monthly Base Rent and one
hundred percent (100%) of the Additional Rent for the Leased Premises in effect
for the month immediately preceding said holding over, computed on a per month
basis, for each month or part thereof (without reduction for any such partial
month) that Tenant thus remains in possession ("Initial Holdover
Rent"). If Tenant retains possession of the Leased Premises or any
part thereof for more than three (3) months after the Termination Date, by lapse
of time or otherwise, Landlord may elect to treat Tenant as a tenant at
sufferance, and Tenant shall pay Landlord monthly rent, beginning on the first
day of the fourth month following the Termination Date, at two hundred percent
(200%) of the rate of both Monthly Base Rent and Additional Rent for the Leased
Premises in effect for the month immediately preceding said holding over,
computed on a per month basis, for each month or part thereof (without reduction
for any such partial month) that Tenant thus remains in possession and in
addition thereto Tenant shall pay Landlord all other amounts due to Landlord
under this Lease and all damages, consequential as well as direct, sustained by
Landlord by reason of Tenant's retention of possession. The provisions of this
Article 19 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord herein, at law, in equity or otherwise and shall
survive the expiration of this Lease.
20. ESTOPPEL
CERTIFICATE.
Tenant
agrees that from time to time upon not less than ten (10) business days prior
request of Landlord, Tenant or Tenant's duly authorized representative having
knowledge of the facts, will execute and deliver to Landlord an estoppel
certificate certifying that (i) this Lease is unmodified and in full force
and effect or, if there have been modifications, an itemized description of such
modifications and that the Lease as modified is in full force and effect;
(ii) the dates to which Annual Base Rent, Additional Rent and other charges
have been paid; (iii) that, to Tenant's knowledge, Landlord is not in
default under any provision of this Lease, or, if in default, the nature thereof
in detail; (iv) that to Tenant's knowledge, to date, all obligations of Landlord
to be performed under the Lease have been performed; (v) Tenant has not paid any
rents or other sums due under the Lease more than thirty (30) days in advance of
the date such sums are due under the Lease; (vi) that Tenant has no rights of
set-off, counterclaim, abatement, or other rights of diminution of any rents or
other sums due and payable under the Lease, except as may be expressly set forth
in the Lease or otherwise provided by law; (vii) that Tenant has not made any
security deposit; (viii) the commencement dates and the expiration dates for
Tenant's lease of each portion of the Leased Premises under the Lease; (ix) the
amount of Tenant's Pro Rata Share; (x) that all Landlord's Work required to be
completed by Landlord under the Lease has been completed, and if, not, the
nature of the work that has not been completed to date; (xi) that Landlord has
paid Tenant all amounts due Tenant with respect to Tenant's Work, and, if not,
the amount of any unpaid tenant improvement allowance to which Tenant is
entitled and has not been paid (provided Landlord shall notify Tenant of such
amount, if any, at the time Landlord requests that Tenant execute such estoppel
certificate); (xii) that Tenant has not declared bankruptcy or similar
insolvency proceeding and has no present intentions of doing so, no such
proceeding has been commenced against Tenant seeking such relief, and Tenant has
no knowledge that any such proceeding is threatened; and (xiii) whether Tenant
has assigned or otherwise transferred Tenant's interest in the Lease or sublet
all or any portion of the Leased Premises. Tenant acknowledges and
agrees that it is intended that any such statements and certificates may be
relied upon by any Mortgagees, Ground Lessors or prospective Mortgagees or
Ground Lessors of the Land or Building, or any prospective or subsequent
purchaser or transferee of all or a part of Landlord's interest in the Land or
the Building or this Lease or any prospective transferee of all or any part of
the interests in Landlord Tenant's failure to execute and deliver any statement
or certificate contemplated by this Article within ten (10) business days after
request by Landlord shall be a Default under this Lease and Landlord shall be
afforded all rights and remedies described in Section 24.1
hereof.
21. MORTGAGE
OR GROUND LEASE BY LANDLORD.
21.1 Subordination. Landlord
may hereafter encumber the Land and the Building and any portion thereof, or any
interest therein with mortgages and may sell and lease back the Land or any part
of the Land and may encumber the leasehold estate under such a sale and
leaseback arrangement with one or more mortgages. (Any such mortgage
is herein called a "Mortgage" and the holder of any such mortgage is herein
called a "Mortgagee". Any such lease of the Land is herein called a
"Ground Lease" and the lessor under any such lease is herein called a "Ground
Lessor"). Landlord covenants to use all commercially reasonable
efforts to obtain from any future Mortgagee (other than Tenant) or Ground Lessor
of all or any part of the Land or Building such party's customary form of
non-disturbance instrument and this Lease and the rights of Tenant hereunder
shall be and are hereby expressly made subject to and subordinate at all times,
provided such Mortgagee or Ground Lessee, as the case may be, executes and
delivers to Tenant the foregoing non-disturbance instrument, to each Mortgage
and to any Ground Lease (it being agreed by Tenant that in the case of a Ground
Lease Tenant's right to possession shall be as a subtenant) now or hereafter
existing, and to all amendments, modifications, renewals, extensions,
consolidations and replacements of each of the foregoing, and to all advances
made or hereafter to be made upon the security thereof. Provided that
Landlord obtains for Tenant's benefit Mortgagee's customary non-disturbance
instrument, Tenant agrees to execute and deliver to Landlord such further
commercially reasonable instruments as reasonably approved by Tenant consenting
to or confirming the subordination of this Lease to any Mortgage and Ground
Lease and containing such other provisions which may be requested in writing by
Landlord within ten (10) business days after Tenant's receipt of such written
request. Landlord's current Mortgagee shall execute and deliver to
Tenant Mortgagee's standard subordination, nondisturbance and attornment
agreement ("SNDA") substantially in the form attached as Exhibit H prior to the
Effective Date of this Lease.
21.2 Foreclosure. If
any Mortgage is foreclosed, or Landlord's interest under this Lease is conveyed
or transferred in lieu of foreclosure, or if any Ground Lease is terminated,
upon request of any person or entity which as the result of any of the foregoing
has succeeded to the interest of Landlord in this Lease (such person or entity
hereinafter referred to as a “Successor”), Tenant will attorn, as Tenant under
this Lease subject to the provisions of this Section 21.2, to such
Successor and will execute and deliver such commercially reasonable instruments
containing non-disturbance language as may be necessary or appropriate to
evidence such attornment within ten (10) days after receipt of a written request
to do so.
21.3 Superiority. Notwithstanding
anything to the contrary contained herein, any Mortgagee or Ground Lessor may
subordinate, in whole or in part, its Mortgage or Ground Lease (as the case may
be) to this Lease by sending Tenant notice in writing subordinating such
Mortgage or Ground Lease to this Lease, and Tenant agrees to execute and deliver
to such Mortgagee or Ground Lessor such further commercially reasonable
instruments consenting to or confirming the subordination of such Mortgage or
Ground Lease to this Lease within ten (10) business days after notice to Tenant
of such request.
21.4 Intentionally
Omitted.
21.5 Recording. Should
any prospective Mortgagee or Ground Lessor require execution of a short form of
this Lease for recording (containing, among other customary provisions, the
names of the parties, a description of the Leased Premises and the term of this
Lease), Tenant agrees to execute such short form of this Lease and deliver the
same to Landlord within ten (10) business days following the request
therefor. Within ten (10) business days after the Effective Date,
Landlord and Tenant shall execute and deliver, and Tenant shall record at
Tenant's sole cost and expense, a memorandum of lease in the form attached
hereto as Exhibit
O ("Memorandum of Lease"). Landlord and Tenant acknowledge and
agree that, notwithstanding anything contained in this Lease to the contrary,
upon the expiration of the Term, as the same may be extended, or earlier
termination of this Lease, Landlord shall have the right to unilaterally cancel
and terminate such Memorandum of Lease, without any notice to or approval by
Tenant, such that the Memorandum of Lease shall no longer encumber title to the
Property.
21.6 Merger of
Interest. Tenant agrees that the provisions of this Section
shall remain in full force and effect, notwithstanding that any Mortgagee or
Ground Lessor may directly or indirectly own or have an interest in the Land or
the Building in addition to its interest as Mortgagee or Ground
Lessor.
21.7 Right To
Cure. Tenant agrees that in the event of any act or omission
by Landlord hereunder which could give Tenant the right to terminate this Lease
or to claim a partial or total eviction (actual or constructive) or claim a
breach of this Lease by Landlord, Tenant shall not exercise any such right until
it has notified in writing every Mortgagee and Ground Lessor (provided Landlord
has notified Tenant of the name and address of any such Mortgagee or Ground
Lessor or Tenant has actual knowledge thereof) and such party has not cured such
act or omission within the cure periods set forth in this Lease.
22. CERTAIN
RIGHTS RESERVED BY LANDLORD.
Except to the extent expressly provided
to the contrary in this Lease, Landlord shall have the following rights, each of
which Landlord may exercise without notice to Tenant and without liability to
Tenant for damage or injury to property, person or business on account of the
exercise thereof, and the exercise of any such rights shall not be deemed or
construed (i) to be a disturbance of Tenant's quiet and peaceable
possession of the Leased Premises or of any rights of Tenant under this Lease or
(ii) to constitute an eviction (actual or constructive) of Tenant's use or
possession of the Leased Premises nor shall such exercise give rise to any claim
for deduction, set-off or abatement of Rent or any other claim.
22.1 Right of
Access. Subject to the provisions of Section 22.2 below, to
(i) perform its obligations pursuant to Section 9.3 and to conduct performance
inspections related thereto, and (ii) to make repairs, alterations, additions,
or improvements, whether structural or otherwise, in and about the Property or
any part thereof (including, without limitation, alterations in locations or
configurations of any common areas of the Building) and for purposes of (i) and
(ii), above, to enter upon the Leased Premises provided (except in the case of
an emergency in which event simultaneous verbal notice shall be deemed
sufficient) Landlord gives at least twenty-four (24) hours prior verbal or
written notice to Tenant and, at Tenant’s election, is accompanied by a
representative of Tenant, to bring materials, supplies and laborers onto the
Leased Premises and during the continuance of any of said work, to temporarily
close doors, entryways, public space and corridors in the Building and to
interrupt or temporarily suspend services or use of facilities, all without
affecting any of Tenant's obligations hereunder. If Tenant requires
Landlord to be accompanied by a representative of Tenant when entering upon the
Leased Premises hereunder, Landlord and Tenant shall cooperate to set a time for
Landlord’s entry that is mutually acceptable to Landlord and
Tenant. Landlord agrees to use all commercially reasonable efforts
not to interfere with the normal operation of Tenant's business.
22.2 Pass
Keys; Tenant's Secured Areas. To furnish door keys or other
entry devices for the entry door(s) in the Leased Premises and to retain at all
times, and to use in appropriate instances, pass keys to all doors within and
into the Leased Premises. If Tenant elects to change the pass keys or
entry devices to and within the Leased Premises, such pass keys and entry
devices must be matched with the base Building master key system maintained by
Landlord and Landlord’s property manager. Notwithstanding anything to
the contrary contained in this Article 22, (i) Landlord shall have no obligation
to furnish any janitorial services to any portion of the Secured Areas, except
to the extent that Tenant provides Landlord with adequate access thereto and
requests such services in writing; and (ii) in the case of an emergency,
Landlord shall have the right to forcibly enter the Secured Areas with no
liability to Tenant or any party for any damage to person or property as a
result thereof, unless such damage was caused by Landlord’s negligence or
willful misconduct; and (iii) without limitation of the provisions of Article 14
hereof, and except as expressly set forth in clause (ii) hereof, Tenant hereby
agrees to hold harmless Landlord in connection with Landlord's entry under the
foregoing clause (ii). In the event Landlord is required to enter any
Secured Areas on an emergency basis, Landlord shall use commercially reasonable
efforts to: (a) safeguard the affected areas during entry; (b) provide advance
or simultaneous verbal notice to Tenant thereof; and (c) secure the affected
areas after exiting therefrom.
22.3 Window
Coverings. To reasonably designate and approve all window
coverings used in the Building.
22.4 Heavy
Items. To
approve the weight, size and location of safes, vaults, and other heavy
equipment and articles in and about the Leased Premises and the Building so as
not to exceed the live load per square foot designated by the structural
engineers for the Building, and to require all such items and furniture and
similar items to be moved into or out of the Building and Leased Premises only
at such times and in such manner as Landlord shall reasonably direct in
writing.
22.5 Moving
Items. To establish reasonable controls and rules for the
purpose of regulating all property and packages, both personal and otherwise, to
be moved into or out of the Building and Leased Premises and all persons using
the Building after normal office hours.
22.6 Deliveries. To
regulate delivery and service of supplies and the usage of loading docks, the
receiving areas and freight elevators.
22.7 Showing
of Leased Premises. At all reasonable times during the Term to
show the Leased Premises to prospective mortgagees or purchasers of the Building
and during the final year of the Term, or during any period in which Tenant is
in Default under this Lease, to show the Leased Premises to prospective tenants
at reasonable times, after at least twenty-four (24) hours prior verbal or
written notice to Tenant (it being agreed that Landlord will use commercially
reasonable efforts not to unreasonably interfere with the normal operation of
Tenant's business). Landlord shall not show the Leased Premises to
any party that appears on Tenant's Competitor List unless all of the following
conditions are met: (i) Tenant has already waived the Renewal Options (as
hereinafter defined); (ii) there are less than twelve (12) months remaining in
the Term; and (iii) such party is accompanied by a representative of Tenant at
all times during which such party is within the Leased Premises.
22.8 Pipes,
Ducts, Wiring, etc. To erect, use and maintain risers, pipes,
ducts, wiring and conduits, and appurtenances thereto, in and through the Leased
Premises at reasonable locations provided that such additions do not interfere
with Tenant's use of the Leased Premises.
22.9 Inspection. Upon
at least twenty-four (24) hours prior verbal or written notice to Tenant (except
in case of emergency in which event simultaneous verbal notice shall be deemed
sufficient) to enter the Leased Premises at any reasonable time to inspect the
Leased Premises for any reason whatsoever.
22.10 Right To
Conduct Business. To grant to any person or to reserve unto
itself the exclusive right to conduct any business or render any service in the
Building to the extent not prohibited by the terms of this Lease.
22.11 Remodeling. In
the event that Tenant's right of possession of the Leased Premises is terminated
as a result of a Default under this Lease, to decorate, remodel, repair, alter
or otherwise prepare the Leased Premises for re-occupancy and to exhibit the
Leased Premises to others; provided that the costs of the foregoing do not
exceed Ten and 00/100 Dollars ($10.00) per rentable square foot of the Leased
Premises.
22.12 Naming;
Signage. Subject to the rights granted to Tenant in Article 28
hereof and the terms of the agreement between Landlord and 24seven Outdoor LLC,
Landlord reserves unto itself the right to name the Building or permit others to
do so, to erect any signage on the roof or exterior of the Building identifying
the Building or tenants located therein and to take any and all actions
necessary to protect and insure access at all times to the Building or
particular space or suites therein. Notwithstanding the foregoing, in
no event shall Landlord permit the 24seven Outdoor LLC sign state, depict or
otherwise convey any entity who is listed on the Competitor List or whose use
constitutes all or a portion of the Exclusive Use; provided, however, that if
Tenant changes any name on the Competitor List to an entity that is already
listed on such sign, neither Landlord nor 24seven Outdoor LLC shall be required
to remove such sign or terminate such sign lease as a result
thereof.
22.13 Energy/Natural
Resources Conservation. Landlord shall have the right to
institute such policies, programs and measures on a Building-wide basis as may
be reasonably necessary for the conservation, recycling and/or preservation of
energy and natural resources or energy or natural resource related services
(provided that such policies do not decrease the heating and cooling
specifications or hours set forth in Section 8.1(A) without Tenant’s prior
written consent) or as may be required to comply with any applicable codes,
rules and regulations.
22.14 Light
Court. Tenant covenants that all areas in the Leased Premises
visible from the interior light court of the Building shall be maintained in a
clean, sightly condition. All light court window coverings shall be
of uniform design reasonably approved by Landlord. Provided Tenant is
leasing any space in the Building on floors seven or above, Landlord covenants
not to do or permit anything to be done that would materially restrict any light
in the light court, unless otherwise required by Law.
22.15 Non-Smoking
Facility. Landlord may elect at any time, in Landlord’s sole
and absolute discretion, to designate the Building as a non-smoking facility, in
accordance with Section 7-32-060 of the City of Chicago Clean Indoor Air
Ordinance. In such event, Tenant, its agents, employees, contractors
or invitees shall not be allowed to smoke from or possess a lighted cigarette,
cigar, pipe or any other form of tobacco or similar substance used for smoking
anywhere in the interior, including, without limitation, in the Leased Premises,
and/or within twenty-five feet (25') of any of the exterior doors of the
Building or the dock area. Notwithstanding the foregoing, Landlord
reserves the right, in its sole and absolute discretion, to designate smoking
areas in and around the Building from time to time. Tenant shall
comply with Landlord's Building smoking policy, as the same may be amended from
time to time. Tenant covenants and agrees to reasonably cooperate
with Landlord in enforcing the Building smoking policy against Tenant’s
employees who violate such policy, but any failure of Tenant’s employees to
comply with such smoking policy shall not be deemed a default by Tenant under
this Lease.
23. RULES AND
REGULATIONS.
Tenant
shall, and shall cause all of its permitted subtenants and occupants, its and
their agents, employees, and licensees to observe faithfully and comply strictly
with all rules and regulations set forth on Exhibit D attached hereto
and made a part hereof, as they may be promulgated, and reasonably supplemented,
modified and revised by Landlord from time to time, as in the Landlord's
reasonable judgment may be necessary or desirable for the safety, care,
maintenance and cleanliness of the Building and the Leased Premises or for the
preservation of good order therein, provided such modifications do not
materially increase Tenant’s monetary obligations or materially decrease
Tenant’s rights under this Lease. Landlord shall use commercially
reasonable efforts to enforce the rules and regulations against all other
occupants and tenants of the Building in a consistent and uniform
manner. Notwithstanding the foregoing, Landlord shall not be liable
to Tenant for violation of such rules and regulations by, or for Landlord's
failure to enforce the same against any other tenant, its subtenants and
occupants and its and their agents, employees, invitees or licensees, nor shall
any such violation or failure constitute or be deemed or construed to
(i) be a disturbance of Tenant's quiet and peaceable possession of the
Leased Premises or of any rights of Tenant under this Lease or
(ii) constitute an eviction (actual or constructive) or affect Tenant's
covenants and obligations hereunder or allow Tenant to reduce, xxxxx or offset
the payment of any Annual Base Rent, Additional Rent or other charges payable by
Tenant under this Lease. Landlord agrees, to the extent possible, to
enforce all rules and regulations uniformly with respect to the tenants of the
Building. In the event of a conflict between the rules and
regulations and the terms of this Lease, the terms of this Lease shall
control.
24. DEFAULT
AND REMEDIES.
24.1 Default
and Landlord's Remedies.
(A) The
occurrence of any one or more of the following events shall be considered a
"Default" by Tenant under this Lease:
(i) Tenant
fails to make any payment of any installment of Annual Base Rent or Additional
Rent or any payment of any other sum required to be paid by Tenant either under
this Lease or under the terms of any other agreement between Landlord and
Tenant, and such failure is not cured within five (5) days after written notice
thereof to Tenant;
(ii) Tenant
fails to observe or perform any of the other covenants or conditions of this
Lease which Tenant is required to observe and perform and such default is not
cured within thirty (30) days after written notice thereof to Tenant (or if such
failure involves an imminent threat to person or property and is not cured by
Tenant immediately upon written notice to Tenant), (unless such failure by its
nature cannot reasonably be cured within said thirty (30) day period, in which
event, provided Tenant commences to cure such failure within such thirty (30)
day period and thereafter diligently and continuously proceeds to cure such
failure, Tenant shall have such additional time as is reasonably necessary to
cure such failure;
(iii) The
interest of Tenant in this Lease shall be levied on under execution or other
legal process or a lien is filed or created against the interest of Tenant in
this Lease, which lien shall not be released or discharged within forty-five
(45) days from the date of such filing unless Tenant has provided Landlord with
a title endorsement as set forth in Article 11 hereof;
(iv) Tenant
becomes the subject of an involuntary case under the Federal bankruptcy law as
now or hereafter constituted or there is filed a petition against Tenant seeking
reorganization, arrangement, adjustment or composition of or in respect of
Tenant under the Federal bankruptcy law as now or hereafter constituted or under
any other applicable Federal or state bankruptcy, insolvency, reorganization or
other similar law or seeking the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of Tenant or
any substantial part of its property or seeking the winding-up or liquidation of
its affairs and such involuntary case or petition is not dismissed within
seventy-ninety (90) days after the filing thereof;
(v) Tenant
commences a voluntary case or institutes proceedings to be adjudicated a
bankrupt or insolvent or consents to the institution of bankruptcy or insolvency
proceedings against it under the Federal bankruptcy laws as now or hereafter
constituted or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or becomes insolvent or bankrupt or applies
for or consents to the appointment of or taking possession by a receiver or
liquidator, assignee, trustee, custodian, conservator, sequestrator (or other
similar official) of Tenant or of any substantial part of its property or makes
any assignment for the benefit of creditors or admits in writing its inability
to pay its debts generally as they become due;
(vi) Intentionally
omitted;
(vii) Tenant
has received notice of default under any other lease or occupancy agreement for
space in the Building pursuant to which Landlord is landlord and Tenant is
tenant, and Tenant has not cured such default within the applicable cure or
grace period provided for in such lease;
(viii) Tenant
violates the confidentiality provisions of Section 6.6;
(ix) Any
representation or warranty made by Tenant is not accurate and correct in any
material respect; or
(x) Tenant
fails to deliver to Landlord certified copies of insurance policies or
certificates of insurance in accordance with Section 12.1, and such failure
is not cured within ten (10) days after written notice thereof to
Tenant.
Upon the
occurrence of any one or more of the foregoing events, Landlord may, with or
without notice or demand of any kind to Tenant or any other person (Tenant
hereby expressly waiving the requirement of service of any statutory notice or
demand), have any one or more of the following described remedies in addition to
all other rights and remedies provided at law or in equity or otherwise or
elsewhere herein:
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1.
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Landlord
may terminate this Lease by giving to Tenant written notice of Landlord's
election to do so, in which event the Term and all right, title and
interest of Tenant hereunder shall end on the date stated in such
notice;
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2.
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Landlord
may terminate the right of Tenant to possession of the Leased Premises
without terminating this Lease, by giving written notice to Tenant that
Tenant's right of possession shall end on the date stated in such notice,
whereupon the right of Tenant to possession of the Leased Premises or any
part thereof shall cease on the date stated in such notice;
and
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3.
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Landlord
may enforce the provisions of this Lease and may enforce and protect the
rights of Landlord hereunder by a suit or suits in equity or at law for
the specific performance of any covenant or agreement contained herein,
and for the enforcement of any other appropriate equitable remedy by
injunctive relief.
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(B) If
Landlord exercises any of the remedies provided for in (1) and (2) above, Tenant
shall surrender possession of and vacate the Leased Premises and immediately
deliver possession thereof to Landlord, and Landlord may, in accordance with
applicable law, re-enter and take complete and peaceful possession of the Leased
Premises.
(C) If
Landlord terminates the right of Tenant to possession of the Leased 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 Annual Base
Rent, Additional Rent and other amounts due and owing under this Lease for the
full Term. Landlord shall have the right from time to time, to
recover from Tenant, and Tenant shall remain liable or obligated for all Annual
Base Rent, Additional Rent and other amounts due and owing under this Lease not
theretofore paid pursuant to the foregoing sentence and any other sums
thereafter accruing as they become due under this Lease during the period from
the date of such notice of termination of possession to the Termination Date
plus damages equal to all other sums which would have accrued under the Lease,
such damages to be due and payable as such sums would have become
due. In any such case, Landlord shall use commercially reasonable
efforts to relet the Leased Premises or any part thereof for the account of
Tenant for such rent, for such time (which may be for a term extending beyond
the Term of this Lease, provided that under no circumstances shall Landlord be
required or obligated to lease any portion of the Leased Premises for a period
of time extending beyond the Termination Date) and upon such terms as Landlord
in Landlord's reasonable 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. Also, in any such case,
Landlord may change the locks or other entry devices of the Leased Premises and
make reasonable repairs, alterations and additions in or to the Leased Premises
and redecorate the same to the extent deemed by Landlord necessary or desirable,
and Tenant shall upon written demand pay the cost thereof (which cost shall not
exceed Ten and 00/100 Dollars ($10.00) per rentable square foot of the Leased
Premises), together solely with reasonable brokerage commissions payable to
Landlord or Landlord's managing agent or to others, provided that Landlord's
expenses of reletting shall not include leasing commissions computed with
respect to periods after the Termination Date or costs which would be amortized
during periods after the Termination Date. Landlord agrees to use
reasonable efforts to cooperate with Tenant in showing the Leased Premises for
reletting. Landlord may collect the rents from any such reletting and
apply the same first to the payment of the expenses of redecorating, reentry,
repair and alterations, and expenses of reletting (up to Ten and 00/100 Dollars
($10.00) per rentable square foot of the Leased Premises), to the extent that
Tenant has not previously reimbursed Landlord for such amounts, second to the
payment of Annual Base Rent and Additional Rent payable by Tenant hereunder, and
any excess or residue shall operate only as an offsetting credit against the
amount of Annual Base Rent, Additional Rent and other amounts due and owing
under this Lease by Tenant or as the same thereafter becomes due and payable
hereunder, but the use of such offsetting credit to reduce the amount of Annual
Base Rent, Additional Rent or other amounts due 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. In no event shall Tenant be entitled to a credit on its
indebtedness to Landlord in excess of either the aggregate sum (including Annual
Base Rent and Additional Rent) due and owing or which would have been paid by
Tenant for the period for which the credit to Tenant is being determined, had no
default occurred. No such reentry, repossession, repairs,
alterations, additions or reletting shall be construed, as an eviction or ouster
of Tenant or as an election on Landlord's part to terminate this Lease, unless a
written notice of such intention is given to Tenant, nor shall the foregoing
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 after the application
from time to time of the proceeds of any such reletting.
(D) In the
event of the termination of this Lease by Landlord as provided in (1) above,
Landlord shall be entitled to recover from Tenant, subject to the terms
contained herein, all damages and other sums which Landlord is entitled to
recover under any provision of this Lease or at law or in equity or otherwise,
including, but not limited to, all the fixed dollar amounts of Annual Base Rent
and Additional 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 or in respect of which Tenant has agreed to indemnify
Landlord 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, any damages provable by Landlord
as a matter of law including, without limitation, an amount equal to the then
present value (using a discount rate of eight percent (8%)) of the excess of the
Annual Base Rent and Additional Rent provided to be paid for the remainder of
the Term less the fair market rental value of the Leased Premises (determined at
the date of termination of this Lease) after deduction of all anticipated
expenses of reletting. Should the fair market rental value of the
Leased Premises after deduction of all anticipated expenses of reletting exceed
the Annual Base Rent provided to be paid by Tenant for the remainder of the
Term, Landlord shall not be obligated to pay to Tenant any part of such excess
or to credit any part of such excess against any other sums or damages for which
Tenant may be liable to Landlord.
(E) Notwithstanding
anything herein to the contrary, (i) to the extent required by law, Landlord
shall use reasonable efforts to mitigate its damages under this Lease; and (ii)
Tenant shall not be liable to Landlord for any consequential or punitive damages
under this Lease, except as set forth in Article 19 of this Lease.
24.2 Attorneys'
Fees. In the event of any litigation or arbitration arising
out of this Lease, the non-prevailing party shall, upon demand, pay all the
prevailing party's costs, charges and expenses, including the fees and
out-of-pocket expenses of counsel, agents and others retained by the prevailing
party incurred in enforcing its rights hereunder or incurred by the
non-defaulting party in or with respect to any litigation, claim, negotiation or
transaction which is related to or arises from any dispute, act or omission of
or involving the non-prevailing party and which causes the prevailing party
without the prevailing party's fault to become involved or
concerned.
24.3 Rights
Cumulative. All rights and remedies of both parties under this
Lease shall be cumulative and none shall exclude any other rights and remedies
allowed by law.
24.4 Late
Payments. All payments becoming due under this Lease and
remaining unpaid for more than five (5) days after the date when due, shall bear
interest from the date such payment is first overdue until such payment is paid,
at a rate per annum (the "Interest Rate") equal to three percent (3%) per annum
plus the corporate base rate of interest announced from time to time by X.X.
Xxxxxx Chase, Chicago, Illinois or its successor ("JPM Chase"), such rate to
change when and as such corporate base rate changes (but in no event at a rate
which is more than the highest rate which is at the time lawful in the State of
Illinois); provided, however, as to the first two (2) times in any Lease Year
such payments are not paid within five (5) days after the date when due,
Landlord shall provide Tenant written notice that such payments are past due and
if Tenant pays Landlord the full amount owing Landlord within five (5) business
days after Tenant’s receipt of such notice, no interest shall accrue on such
amount due. If JPM Chase ceases to use the term "corporate base rate"
in setting a base rate of interest for commercial loans, the corporate base rate
herein shall be determined by reference to the rate used by JPM Chase as a
reference rate of interest for commercial loans. Should JPM Chase,
for any reason, neither use the term "corporate base rate" nor designate a
reference rate of interest for commercial loans, the corporate base rate shall
be the rate of interest announced from time to time as its corporate base rate
by such national banking association with general offices in the Chicago,
Illinois metropolitan area as Landlord may determine (the "Announcing
Bank"). If the Announcing Bank ceases to use the term "corporate base
rate" (or if it did not use the term at the time of its designation by
Landlord), then the corporate base rate shall be determined by reference to the
Announcing Bank's base rate of interest for commercial loans. Should
the Announcing Bank neither use the term "corporate base rate" nor designate a
base rate of interest for commercial loans, the Landlord shall again select an
Announcing Bank as aforesaid.
25. COVENANT
OF QUIET ENJOYMENT.
Landlord
covenants that Tenant, on paying the Annual Base Rent, Additional Rent, all
other amounts due and owing by Tenant under this Lease, 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 in all material
respects, shall peaceably and quietly have, hold and enjoy the Leased Premises
free from hindrance by Landlord or any person claiming by, through or under
Landlord; subject, however, to the terms, covenants, conditions, provisions and
agreements hereof.
26. REAL
ESTATE BROKERS.
Landlord
and Tenant each represent that they have dealt with (and only with) the Brokers
in connection with this Lease and no other broker negotiated this Lease or is
entitled to any commission or finder's fee in connection
herewith. Tenant agrees to indemnify, defend and hold Landlord
harmless from and against all claims by or through Tenant made by any broker or
finder other than the Brokers for a commission or fee in connection with this
Lease, provided that Landlord has not in fact retained such a broker or
finder. Landlord agrees to pay the brokerage commission of the
Brokers in accordance with the terms and conditions of Landlord's agreement with
the Brokers and to indemnify, defend and hold Tenant harmless from and against
all claims made by the Brokers and any other broker claiming rights by or
through Landlord's engagement.
27. INTENTIONALLY
OMITTED.
28. TENANT'S EXCLUSIVE
RIGHTS.
28.1 Tenant's
Exclusive Use.
(A) Retail
Premises. During the Term, commencing as of January 1, 2009,
subject to the existing rights contained in the leases of existing tenants of
the Building as of the Effective Date, solely as to the retail space on the
first (1st) floor
of the Building, Landlord shall not lease or permit the assignment, sublease,
license or occupancy of any person or entity for any use which would constitute
a violation of Tenant's Exclusive Use.
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(B)
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Upper Level Premises
and Fourth Floor Premises.
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(1)
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So
long as Tenant is paying Annual Base Rent on a minimum of 92,309 Rentable
Square Feet of non-retail, above-grade space in the Building that has not
been sublet or assigned, and subject to the existing rights contained in
the leases of existing tenants of the Building as of the Effective Date,
Landlord acknowledges and agrees that it will use commercially reasonable
efforts (i) to prevent any existing tenant from assigning their lease
and/or subleasing and licensing all or a portion of their premises to an
entity which appears on the list of five (5) competitors listed on Exhibit I attached
hereto and made a part hereof ("Competitor List"); and (ii) to negotiate
in any existing tenant's future lease renewal or expansion language which
restricts any such existing tenant from assigning their lease and/or
subleasing and licensing all or a portion of their premises to an entity
which appears on the Competitor List. However, if such
restriction is not achieved in connection with either an existing tenant's
existing lease, or an existing tenant's future renewal or expansion, and
Landlord has used commercially reasonable efforts as described herein,
Tenant acknowledges and agrees that it shall have no right and hereby
waives any right to make or pursue any claim, suite or other such action
for breach, damages or other remedy against Landlord as a result
thereof.
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(2)
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So
long as Tenant is paying Annual Base Rent on a minimum of 92,309 Rentable
Square Feet of non-retail, above-grade space that has not been sublet or
assigned, and subject to the existing rights contained in the leases of
existing tenants of the Building as of the Effective Date, Landlord
acknowledges and agrees that the lease of any new tenant shall contain
language which restricts tenant from assigning their lease and/or
subleasing and licensing all or a portion of their premises to an entity
which appears on the Competitor List, subject to Tenant's right to change
names on the list as set forth in Section 28.1(B)(4)
below. Failure of such new tenant leases to contain such
restriction shall constitute a Landlord default under this
Lease.
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(3)
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Notwithstanding
anything contained in this Section 28.1 to the contrary, so long as (i)
Tenant is not in Default under this Lease and (ii) Tenant is open and
operating its business in any of the Leased Premises for the Exclusive
Use, Landlord shall not enter into a lease for space in the Building with
a new tenant whose name appears on the Competitor
List.
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(4)
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Subject
to the existing rights contained in the leases of existing tenants of the
Building as of the date Tenant exercises such right, Tenant shall have the
right, in Tenant’s reasonable discretion, to change the identity of one
(1) of the five (5) competitors identified on the Competitor List no more
than once in any consecutive twelve (12) month
period.
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28.2 Name of
Building. During the Term, provided that Tenant is paying
Annual Base Rent on at least 187,500 Rentable Square Feet of space above grade
in the Building (“Threshold Amount"), if Tenant so requests by written notice to
Landlord, the Building shall be known as the "PrivateBancorp, Inc." or "The
PrivateBank" Building or another name which reflects Tenant's trade name;
provided, however, that if Tenant changes the name of the Building at any time
throughout the Term, Tenant shall pay Landlord all costs and expenses associated
therewith. If, at any time during the Term, Tenant is paying Annual
Base Rent on less than the Threshold Amount, Landlord shall be entitled to use
and to refer to the Building by the alternative name "The 000 Xxxxx XxXxxxx
Building". If, at any time during the Term, (i) Tenant is not open
for business and occupying all of the second and third floors of the Building,
and (ii) Tenant is not leasing the LaSalle Street Sign (as defined in Section
28.3 below), Landlord may elect, by delivering written notice to Tenant, to
terminate Tenant's rights under this Section 28.2 and change the name of the
Building, in which event this Section 28.2 shall become null and void and of no
further force and effect. The naming rights granted to Tenant
pursuant to this Section 28.2 are personal to Tenant and shall not inure to the
benefit of any assignee of this Lease or sublessee of the Leased Premises
(except with respect to any transfer of Tenant's interest in this Lease to an
Affiliate).
28.3 Signage. During
the Term, provided Tenant is leasing: (i) all or any portion of the Upper Level
Premises, Tenant shall have the right to erect and display a sign bearing
Tenant's corporate logo and/or Tenant's name: (A) by Tenant's elevator bank on
the first (1st) floor
of the Building in an area mutually agreed upon by Landlord and Tenant, (B) on
any floor in the Building which is leased entirely by Tenant, (C) as the
exclusive name on the outside of the Building over the LaSalle Street Entrance
("LaSalle Street Sign"), and (D) as the exclusive name, on the placard on the
east elevation of the Building flanking the north side of the main entrance, and
on the placard on the north elevation of the Building flanking the west side of
the Monroe Street entrance; and (ii) the Retail Premises, Tenant shall have the
right to erect and display a sign bearing Tenant's corporate logo and/or
Tenant's name on the plaques on the corner of the Building between LaSalle
Street and Monroe Street ("Retail Signs"). The LaSalle Street Sign,
Retail Signs and all other signs referenced above shall be collectively herein
referred to as "Tenant's Signs" and shall be located generally in the areas
depicted on Exhibit K-1
attached hereto and made a part hereof. The design, character, color,
material, form, location and method of affixing Tenant's Signs shall be subject
to Landlord's prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed, provided that Tenant's Signs conform and are
consistent with the appearance of the façade of the
Building. Notwithstanding the foregoing, Landlord approves Tenant's
signs as set forth on Exhibit
K-2. Landlord's approval of Tenant's Signs shall in no way be
deemed a representation by Landlord that Tenant's Signs conform with applicable
laws, building codes or zoning ordinances. In all events, Tenant
shall be responsible, at Tenant's sole cost and expense, for maintaining,
replacing, repairing and removing Tenant's Signs and shall maintain and repair
Tenant's Signs in a good condition in keeping with the appearance of the façade
of the Building. Alternatively, at the request of Tenant, and at the
option of Landlord, Landlord will contract for the maintenance of Tenant's Signs
provided that Tenant reimburse Landlord in full for any reasonable,
out-of-pocket, market-based costs associated therewith. No later than
the Termination Date, unless requested otherwise by Landlord, Tenant shall
remove any or all of Tenant's Signs and restore the portion of the Building
affected thereby to a condition reasonably satisfactory to
Landlord. Tenant shall pay for any and all license and permit fees
and governmental approvals required in connection with Tenant's Signs and hereby
agrees to indemnify, defend and hold Landlord harmless from and against any and
all direct and out-of-pocket loss, cost, damage, expense, liability, fine,
penalty and lien (including, without limitation, reasonable attorneys' fees and
court costs) incurred by Landlord and connected in any manner with Tenant's
Signs. The signage rights granted to Tenant pursuant to this Section
28.3 are personal to Tenant and shall not inure to the benefit of any assignee
of this Lease or sublessee of the Leased Premises (except with respect to any
transfer of Tenant's interest in this Lease to an Affiliate).
(A) LaSalle Street
Sign. Subject to the LaSalle Street Sign Termination Option
(as hereinafter defined) set forth below, Tenant shall lease the LaSalle Street
Sign for the Term of this Lease. If Tenant executes and delivers to
Landlord an amendment to this Lease in form and content mutually acceptable to
Landlord and Tenant, on or prior to July 1, 0000 ("XxXxxxx Xxxxxx Sign
Deadline") which provides, among other things, that Tenant shall lease and pay
Annual Base Rent for at least 159,000 Rentable Square Feet of space above grade
in the Building on or prior to April 1, 2010, Tenant shall not be required to
pay a rental fee for the LaSalle Street Sign. In the event that (i)
Tenant does not execute and deliver an amendment to Landlord prior to the
LaSalle Street Sign Deadline providing that Tenant shall lease and pay Annual
Base Rent for at least 159,000 Rentable Square Feet of space above grade in the
Building or (ii) at any time during the Term after the LaSalle Street Sign
Deadline Tenant is paying Annual Base Rent for less than 159,000 Rentable Square
Feet of space above grade in the Building, Tenant shall be required to pay a
rental fee for the LaSalle Street Sign in the amount of Seventy-Five Thousand
and 00/100 Dollars ($75,000.00) per annum ("Sign Rental Fee") for each year of
the Term in which the rentable square footage of the Leased Premises does not
meet or exceed the 159,000 Rentable Square Feet threshold. The Sign
Rental Fee shall be paid at the same time and in the same manner as Tenant's
first installment of Monthly Base Rent each Lease Year. Tenant shall
be required to pay the entire Sign Rental Fee for any Lease Year during which,
at any point, Landlord is paying Annual Base Rent for less than 159,000 Rentable
Square Feet of space above grade in the Building; provided, however, that the
Sign Rental Fee shall be prorated for the first year during which Tenant reaches
the 159,000 Rentable Square Feet threshold. If applicable, the first
installment of the Sign Rental Fee shall be due and payable on or prior to
January 1, 2011. For any Lease Year commencing on or after January 1,
2011 during which Tenant pays Annual Base Rent for more than 159,000 Rentable
Square Feet above grade in the Building, Tenant shall not be required to pay the
Sign Rental Fee. Notwithstanding anything to the contrary contained
in this subsection (A), Tenant shall have the option to cancel Tenant's lease of
the LaSalle Street Sign ("LaSalle Street Sign Termination Option") effective
December 31, 2015 or December 31 of any calendar year thereafter ("LaSalle Sign
Termination Date"). Tenant shall exercise the LaSalle Street Sign
Termination Option by providing Landlord written notice at least nine (9) months
prior to the LaSalle Sign Termination Date ("Tenant's LaSalle Sign Termination
Notice"). In the event Tenant delivers Tenant's LaSalle Sign
Termination Notice less than nine (9) months prior to the LaSalle Sign
Termination Date, Tenant shall be entitled to cancel the lease of the LaSalle
Street Sign effective as of the LaSalle Sign Termination Date of the year in
which Tenant's LaSalle Sign Termination Notice is delivered, but Tenant shall be
required to pay the Sign Rental Fee for the next Lease Year.
(B) Retail
Signs. Provided Tenant is paying Annual Base Rent for the
entire Retail Premises, Tenant shall be entitled to use and maintain the Retail
Signs. In the event Tenant terminates this lease as to all or any
portion of the Retail Premises, Landlord may elect, at Landlord's option, by
delivering written notice to Tenant, to require Tenant to remove the Retail
Signs and restore the portions of the Building affected thereby at Tenant's sole
cost and expense.
28.4 ATM. Commencing
January 1, 2009, so long as (i) Tenant is not in Default under this Lease
(beyond the lapse of applicable grace or cure periods); and (ii) Tenant is open
and operating its business in all of the second and third floors of the Building
for Tenant's Use, Tenant shall have the exclusive right to operate automatic
teller machines ("ATMs") on the first (1st) floor
of the Building in locations approved by Landlord. The ATMs are
depicted on Exhibit N
attached hereto and made a part hereof.
29. NOTICES.
All
notices, waivers, demands, requests or other communications required or
permitted hereunder shall, unless otherwise expressly provided, be in writing
and be deemed to have been properly given, served and received: (a) if
delivered personally or by courier or messenger; (b) via United States
Mail, certified or registered, postage prepaid, return receipt requested; or (c)
via nationally recognized overnight courier. All such notices shall
be deemed given upon the earlier of the first attempted delivery to, or refusal
by, the addressee, addressed as follows.
If to
Landlord: TR
120 X. XXXXXXX CORP.
c/o Lincoln Property
Company
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxxxxx
With a
copy
to: Holland
& Knight LLP
000 Xxxxx
Xxxxxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
X. Xxxxx
And with respect to any Landlord
Default (as hereinafter defined), to Mortgagee, its successors and assigns (upon
notice thereof to Tenant):
AXA Equitable Life Insurance
Company
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Real Estate Legal
Department
|
|
If
to Tenant:
|
Prior
to the Commencement Date:
|
The
PrivateBank and Trust Company
00 Xxxx
Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxx
With copies to:
The PrivateBank and Trust
Company
00 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxxx
Xxxxxx, Esq.
Xxxxxx Price P.C.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx
From and
after the Commencement Date:
The
PrivateBank and Trust Company
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
Xxxxxx
With
copies to:
The
Private Bank and Trust Company
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxxxxxx
Xxxxxx, Esq.
Xxxxxx
Price P.C.
000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxxx and Xxxxxxx Xxxxx
Colliers,
Xxxxxxx & Kahnweiler
000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxx
Xxxxxx, Principal
or to
such other address(es) or addressee(s) as any party entitled to receive notice
hereunder shall designate to the others in the manner provided herein for the
service of notices. Rejection or refusal to accept or inability to
deliver because of changed address or because no notice of changed address was
given, shall be deemed receipt.
30. MISCELLANEOUS.
30.1 Terms. The
necessary grammatical changes required to make the provisions hereof apply
either to corporations or partnerships or individuals, men or women, and
singular or plural, as the case may require, shall in all cases be assumed as
though in each case fully expressed.
30.2 Binding
Effect. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective successors and assigns,
provided this clause shall not permit any assignment by Tenant contrary to the
provisions of this Lease.
30.3 Lease
Contains All Terms. All of the obligations of Landlord and
Tenant are contained herein and in the Exhibits and Schedules attached hereto
and no modification, waiver or amendment of this Lease or of any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in
writing signed by Landlord and Tenant or by a duly authorized agent of Landlord
and/or Tenant, as applicable, empowered by a written authority signed by
Landlord and/or Tenant as applicable. In executing and delivering
this Lease, Tenant has not relied on any representation (including, but not
limited to, any representation whatsoever as to the amount of any item
comprising Additional Rent or the amount of the Additional Rent in the
aggregate), warranty or any statement of Landlord which is not set forth
herein.
30.4 Delivery
For Examination. Submission of the Lease for examination shall
not bind Landlord in any manner, and no Lease or obligations of Landlord shall
arise until this instrument is signed by both Landlord and Tenant and delivery
is made to each.
30.5 Prohibition
Against Recording. Except as otherwise expressly set forth in
this Lease, neither this Lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation, of this
provision shall make this Lease null and void at Landlord's
election.
30.6 Captions. The
captions of Articles, Sections and subsections are for convenience only and
shall not be deemed to limit, construe, affect or alter the meaning of such
Articles, Sections or subsections.
30.7 Only
Landlord/Tenant Relationship. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third party to
create the relationship of principal and agent, partnership, joint venture or
any association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Annual Base Rent nor any act of
the parties hereto shall be deemed to create any relationship between Landlord
and Tenant other than the relationship of landlord and tenant.
30.8 Application
of Payments. Landlord shall have the right to apply payments
received from Tenant pursuant to this Lease (regardless of Tenant's designation
of such payments) to satisfy any obligations of Tenant which are due and payable
hereunder, in such order and amounts as Landlord in its sole discretion may
elect.
30.9 Governing
Law. Interpretation and enforcement of this Lease shall be
governed by the laws of the State of Illinois.
30.10 Partial
Invalidity. If any term, provision or condition contained in
this Lease shall, to any extent, be finally adjudicated to be invalid or
unenforceable, the remainder of this Lease (or the application of such term,
provision or condition to persons or circumstances other than those in respect
of which it is finally adjudicated to be invalid or unenforceable) shall not be
affected thereby and each and every other term, provision and condition of this
Lease shall be valid and enforceable to the fullest extent permitted by
law.
30.11 Interest. If,
from any circumstances whatsoever, fulfillment of any provision hereof at the
time performance of such provision shall be due, shall involve exceeding the
highest lawful rate of interest permissible under applicable law, then the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under the applicable laws. If, for any reason
whatsoever, Landlord shall ever receive as interest an amount which, would be
deemed unlawful under such applicable law, at Landlord's option such excess
shall be refunded by Landlord, provided Tenant is not then in default
hereunder.
30.12 Intentionally
Omitted.
30.13 Counterparts. This
Lease may be executed in counterparts and each copy of this Lease to which is
attached counterpart signature pages containing the signatures of each of the
parties hereto shall be deemed for all purposes to be an executed original of
this Lease.
30.14 Survival. Any
provision of this Lease which obligates Landlord or Tenant to pay an amount or
perform an obligation before the Commencement Date or after the Termination Date
shall be binding and enforceable notwithstanding that payment or performance is
not within the Term and the same shall survive the expiration of the Term for a
period of three hundred sixty-five (365) days, except with respect to: (A) any
personal injury matter, in which event Tenant's obligations shall survive the
expiration of the Term of the Lease for a period equal to any applicable statute
of limitations for personal injury claims plus one day, and (B) any claim
relating to Hazardous Materials in the Leased Premises, in which event Tenant's
obligations shall survive the expiration of the Term of the Lease indefinitely.
30.15 Time of
the Essence. Time is of the essence of this Lease and all
provisions herein relating thereto shall be strictly construed.
30.16 Accord
and Satisfaction. No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein stipulated shall be deemed to be other
than a payment on account of the stipulated Rent, nor shall any endorsement or
statement on any check or any letter or other communication accompanying any
check or payment as Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other remedy provided in this
Lease.
30.17 Landlord's
Right to Perform Tenant's Duties. If Tenant fails to timely
perform any of its duties under this Lease, Landlord shall have the right (but
not the obligation) after the expiration of any notice and grace period
specifically provided by this Lease to perform such duty on behalf and at the
expense of Tenant without further notice to Tenant, and all sums expended or
expenses incurred by Landlord in performing such duty shall be deemed to be Rent
under this Lease and shall be due and payable to Landlord upon demand by
Landlord.
30.18 Force
Majeure. Without limiting any other provisions of this Lease,
if Landlord or Tenant fails to timely perform any of the terms, covenants and
conditions of this Lease (including any exhibits attached hereto) on such
party's part to be performed, and such failure is due in whole or in part to any
circumstance beyond such party's reasonable control, such as any strike
(affecting the trades generally), lockout (affecting the trades generally),
labor trouble (affecting the trades generally), civil disorder, inability to
procure or delay in procuring labor or materials, failure of power, restrictive
governmental laws and regulations, riots, insurrections, war, terrorism,
bioterrorism, shortages of fuel, equipment (affecting the trades or market
generally), labor or materials (affecting the trades or market generally),
accidents, casualties, acts of God, or any other cause beyond the reasonable
control of the party invoking this Section other than the failure or inability
to procure sufficient funds to so perform, such party shall not be deemed in
default under this Lease as a result of such failure and any date or period of
time provided in this Lease for such party to perform such term, covenant or
condition shall be extended for the amount of time such party is so
delayed.
30.19 Confidentiality. The
parties agree to keep this Lease and the contents hereof confidential and not
disclose any information contained in this Lease to any third parties
whatsoever; provided, however that (i) Landlord and Tenant may disclose
such information as Landlord and Tenant agree in writing in connection with any
press or other media release to publicize the execution of this Lease;
(ii) Landlord may disclose such information in connection with any sale,
ground lease, financing or refinancing of all or any portion of the Property or
Landlord's interest therein so long as Landlord notifies the recipient of such
information that the information shall remain confidential; (iii) Landlord
or Tenant may disclose such information in connection with the preparation by
accountants of any reports or tax returns; (iv) Landlord may disclose general
information regarding the existence of any extension, renewal, right of first
offer, right of first refusal or expansion right of Tenant to prospective or
current tenants of the Building; and (v) Landlord and Tenant may disclose such
information as required by deposition, interrogatory, request for documents,
subpoena or similar legal process or as otherwise required to pursue or defend
against any claims or legal proceedings. Landlord acknowledges that
it is aware that Tenant has previously sent a letter to the City of Chicago
relating to tax increment financing and that such disclosure shall not be deemed
a violation of this Section 30.19.
30.20 Intentionally
Omitted.
30.21 Advertising. Tenant
shall not inscribe, print or affix any sign, picture, advertisement or notice on
any part of the Building.
30.22 Waiver of
Jury Trial. In the event of any litigation arising out of or
relating to this Lease, Landlord and Tenant hereby waive the right to demand or
request a trial by jury.
30.23 Exhibits;
Schedules. The Exhibits and Schedules attached to this Lease
constitute a part hereof, provided however, that in the event of a conflict
between the provisions of any Exhibit or Schedule and the provisions of the
Lease to which they are attached, the provisions of the Lease shall
prevail.
30.24 Intentionally
Omitted.
30.25 Financial
Statements. If, at any time during the Term, Tenant is not a
publicly-traded company, Tenant covenants and agrees to furnish to Landlord, no
more than one (1) time in any consecutive twelve (12) month period, within ten
(10) business days of Landlord’s written request therefor, which request is made
in connection with a proposed sale or refinancing of the Building, copies of
financial statements of Tenant audited, if requested by Landlord, and if
regularly prepared by Tenant, by a certified public accountant, and agrees that
Landlord may deliver any such financial statements to any existing or
prospective mortgagee or purchaser of the Property. The financial
statements shall include a balance sheet as of the end of, and a statement of
profit and loss for, the preceding fiscal year of Tenant and, if regularly
prepared by Tenant, a statement of sources and use of funds for the preceding
fiscal year of Tenant.
30.26 Public
Safety. Notwithstanding anything contained in this Lease to
the contrary, Tenant and all persons within the Leased Premises or within or
under Tenant's control, shall comply with any and all reasonable orders and
directives that may be given by Landlord (or its agents, including for these
purposes only, building management and lobby attendants) to Tenant in connection
with Landlord's reasonable, good faith belief that there exists an emergency or
other safety concerns which affect the Building and/or the Leased
Premises. Such orders and directives may require, among other things,
for Tenant and its agents, employees, contractors and those under Tenant's
control, to vacate the Leased Premises and/or the Building and/or not enter or
re-enter the Leased Premises and/or the Building. Without limiting
the foregoing: (a) Tenant shall designate, in writing, a person
or persons who shall serve as its emergency contact for purposes of this
Section; (b) notices and directives under this Section may be given orally
or in writing or by any other reasonable means (including, if applicable, the
public address system of the Building); (c) if so directed by Landlord or
its agents, all persons within the Leased Premises and persons outside the
Leased Premises and within Tenant's control shall immediately vacate the
Building and/or not enter or re-enter the Leased Premises and/or the Building in
accordance with Landlord's direction; (d) Landlord shall have the right
with at least one (1) week advance notice to Tenant in each instance to conduct
a reasonable number of "fire drills" in any calendar year, and Tenant shall
comply with the direction given by Landlord or its agents in connection with
such "fire drills" as if a real emergency existed; (e) Tenant's failure to
comply with the provisions of this Section shall not constitute a default under
this Lease; however, Tenant shall cooperate with Landlord to cause Tenant's
employee and agents to comply with such provisions; and (f) without
limiting Landlord's rights and remedies in connection with Tenant's obligations
under this Section, Tenant on its behalf and on behalf of its employees,
officers, directors and partners hereby waives and releases Landlord and
Landlord's agents, employees, contractors, officers, directors and partners from
and against any and all claims expenses, suits, damages, injuries and/or
liabilities (including, without limitation, reasonable attorneys' fees and court
costs) that arise out of any actions by Landlord in accordance with this Section
or the failure by Tenant to comply with this Section.
30.27 Intentionally
Omitted.
30.28 USA
Patriot Act and Anti-Terrorism Laws. Tenant represents and
warrants to, and covenants with, Landlord that Tenant is not, nor will it be at
any time during the Term, in violation of any laws relating to terrorism or
money laundering (collectively, the "Anti-Terrorism Laws"), including without
limitation Executive Order No. 13224 on Terrorist Financing, effective September
24, 2001 and relating to Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism (the "Executive
Order") and/or the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law
107-56) (the "USA Patriot Act"). Tenant covenants with Landlord that
Tenant is not, nor will it be during the Term a “Prohibited Person,” which is
defined as follows: (i) a person or entity that is listed in the
Annex to, or is otherwise subject to, the provisions of the Executive Order;
(ii) a person or entity owned or controlled by, or acting for or on behalf of,
any person or entity that is listed in the Annex to, or is otherwise subject to
the provisions of, the Executive Order; (iii) a person or entity with whom
Landlord is prohibited from dealing with or otherwise engaging in any
transaction by any Anti-Terrorism Law, including without limitation the
Executive Order and the USA Patriot Act; (iv) a person or entity who commits,
threatens or conspires to commit or support "terrorism" as defined in Section
3(d) of the Executive Order; (v) a person or entity that is named as a
"specially designated national and blocked person" on the then-most current list
published by the U.S. Treasury Department Office of Foreign Assets Control at
its official website, , or at any replacement website or other replacement
official publication of such list; and (vi) a person or entity who is affiliated
with a person or entity listed in items (i) through (v), above. At
any time and from time-to-time during the Term, Tenant shall deliver to
Landlord, within ten (10) days after receipt of a written request therefor, a
written certification or such other evidence reasonably acceptable to Landlord
evidencing and confirming Tenant’s compliance with this Section.
30.29 Central
Loop TIF District. Upon request by Tenant, Landlord shall use
commercially reasonable efforts to assist Tenant in securing any TIF financing
available through the Central Loop TIF District, including the execution and
delivery of any documentation required by the owner of the Building; provided,
however, in connection therewith: (i) Tenant shall reimburse Landlord for all
reasonable, out-of-pocket costs and expenses incurred by Landlord within thirty
(30) days after Tenant receives Landlord's written request therefor, and (ii)
except on behalf of TR 120 X. XxXxxxx Corp., as owner of the Building,
Landlord’s agents, including but not limited to Landlord’s advisors, property
managers, accountants and attorneys, shall not be required to execute or deliver
any documents or disclosures.
30.30 Authority. Landlord
represents and warrants that (i) Landlord is the owner of the fee interest in
the Property and (ii) Landlord has the full power, right and authority to enter
into this Lease, and the individuals signing this Lease and all other documents
executed pursuant hereto on behalf of Landlord are duly authorized to sign same
on behalf of Landlord and to bind Landlord. Tenant represents and
warrants that Tenant has the full power, right and authority to enter into this
Lease, and the individuals signing this Lease and all other documents executed
pursuant hereto on behalf of Tenant are duly authorized to sign same on behalf
of Tenant and to bind Tenant.
31. ADA.
The
parties acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C.
§12101 et seq.)
and regulations and guidelines promulgated thereunder, as all of the same may be
amended and supplemented from time to time (collectively referred to herein as
the "ADA") establish requirements under Title III of the ADA ("Title III")
pertaining to business operations, accessibility and barrier removal, and that
such requirements may be unclear and may or may not apply to the Leased Premises
and Building depending on, among other things: (1) whether Tenant's business
operations are deemed a "place of public accommodation" or a "commercial
facility", (2) whether compliance with such requirements is "readily achievable"
or "technically feasible", and (3) whether a given alteration affects a "primary
function area" or triggers so-called "path of travel"
requirements. The parties acknowledge and agree that Tenant has been
provided an opportunity to inspect the Leased Premises and Building sufficient
to determine whether or not the Leased Premises and Building in their current
condition as of the date hereof deviate in any manner from the ADA Accessibility
Guidelines ("ADAAG") or any other requirements under the ADA or state or local
law pertaining to the accessibility of the Leased Premises or the
Building. Tenant further acknowledges and agrees that except as may
otherwise be specifically provided herein, Tenant accepts the Leased Premises
and Building in "as-is" condition and agrees that Landlord makes no
representation or warranty as to whether the Leased Premises or the Building
conform to the requirements of the ADAAG or any other requirements under the ADA
or state or local law pertaining to the accessibility of the Leased Premises or
the Building, Tenant has prepared or reviewed the plans and specifications for
the Tenant's Work and has independently determined that such plans and
specifications are in conformance with the ADAAG, any other requirements of the
ADA and state and local law. Tenant further acknowledges and agrees
that to the extent that Landlord prepared, reviewed or approved any of such
plans and specifications, such action shall in no event be deemed any
representation or warranty that the same comply with any requirements of the ADA
or other applicable law. Notwithstanding anything to the contrary in
this Lease, the parties hereby agree to allocate responsibility for Title III
compliance as follows: (a) Landlord shall be responsible for performing ADA
Title III compliance work required in the common areas of the Building on the
floors on which the Leased Premises are located (except if Tenant is leasing the
entire floor, in which event there are no Building common areas on that floor,
in which event Tenant shall be solely responsible for any such ADA compliance);
(b) Tenant shall be responsible for all Title III compliance and costs in
connection with the Leased Premises, including structural work, if any, and
including any leasehold improvements or other work to be performed in the Leased
Premises under or in connection with this Lease; and (c) at Landlord’s election,
Landlord or Tenant shall perform, and in either event Tenant shall be
responsible for the cost of, any so-called Title III "path of travel"
requirements triggered by any construction activities or alterations in the
Leased Premises. Except as set forth above with respect to Landlord's
Title III obligations, Tenant shall be solely responsible for all other
requirements under the ADA or other applicable law relating to Tenant or any
affiliates or persons or entities related to Tenant (collectively,
"Affiliates"), operations of Tenant or Affiliates, or the Leased Premises,
including, without limitation, requirements under Title I of the ADA pertaining
to Tenant's employees.
32. EXCULPATION.
It is understood and agreed expressly
by and between the parties hereto, anything herein to the contrary
notwithstanding, that each and all of the representations, warranties,
covenants, undertakings and agreements made in this Lease on the part of
Landlord, while in form purporting to be the representations, warranties,
covenants, undertakings and agreements of Landlord, are nevertheless each and
every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in the Building
and the Leased Premises to the terms of this Lease and for no other purpose
whatsoever, and in case of default hereunder by Landlord, Tenant shall look
solely to the interests of Landlord in the Building; that Landlord shall have no
personal liability whatsoever to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, contained herein, and that no
personal liability or personal responsibility of any sort is assumed by, nor
shall at any time be asserted or enforceable against, said Landlord,
individually or personally, 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. Notwithstanding the provisions of the foregoing exculpation
clause, nothing therein is intended to limit or preclude payment of the
Landlord's obligations and claims of the Tenant from public liability insurance,
excess liability insurance (umbrella policies), fire and casualty insurance
policies and all other policies of insurance affecting the Leased Premises
maintained by Landlord.
33. EXPANSION
OPTIONS. Tenant shall have the options to increase the
Rentable Square Feet of the Leased Premises on the following terms and
conditions:
(A) Initial Expansion
Option. Tenant shall have an option (the "Initial Expansion Option") to
lease all or a portion of the unleased space on the fourth, fifth, seventh and
eight floors of the Building, to be exercised on a full floor basis (except with
respect to that portion of the fourth floor included in the Fourth Floor
Premises), starting with the lowest floors (the "Initial Expansion Space"), on
the same terms and conditions as the Upper Level Premises. Tenant
shall have the right to exercise the Initial Expansion Option by written notice
received by Landlord on or before August 1, 2008. Tenant acknowledges
and agrees that its obligation to lease the Initial Expansion Space starting
with the lowest floors shall be strictly enforced, except as expressly provided
to the contrary in this Lease. Within thirty (30) days after Tenant
has timely exercised the Initial Expansion Option, Landlord and Tenant agree
that they shall execute an amendment to this Lease incorporating the terms of
such exercised Initial Expansion Option and other applicable terms and
conditions related thereto. Notwithstanding anything contained in
this Lease to the contrary, if Tenant timely exercises the Initial Expansion
Option, the term of Tenant's lease for so much of the Initial Expansion Space
taken by Tenant shall commence on April 1, 2010 ("Initial/Additional Expansion
Space Commencement Date") and expire on the Termination Date of this
Lease. Notwithstanding anything contained in this Article 33 to the
contrary, Tenant shall have the option to elect, on a timely basis, as part of
the Initial Expansion Option or the Additional Expansion Option (as hereinafter
defined), to lease all or a portion of the seventh floor without being required
to lease all or any of the Initial Expansion Space or all or any of the
Additional Expansion Space (as hereafter defined) on the fourth and fifth
floors. In the event that Tenant exercises the Initial Expansion
Option or Additional Expansion Option with respect to the seventh floor,
Landlord shall, at Tenant's election, which election must be made at the time
Tenant exercises the applicable expansion option, at Landlord's sole cost and
expense (the costs of which shall not be included in Operating Expenses),
demolish and remove the kitchen and cafeteria structures, improvements and
fixtures, including the fan room located on the eighth floor, without any
obligation to repair or restore the walls, ceilings, floors or other portions of
the seventh floor and the eighth floor so affected thereby (except with respect
to Landlord's demolition, removal and restoration obligations set forth on Exhibit Q attached hereto and
made a part hereof), prior to the Initial/Additional Expansion Space
Commencement Date (the "Seventh Floor Kitchen Demolition"). In the
event that Tenant elects, at the time Tenant exercises the applicable expansion
option, that the kitchen or cafeteria structures, improvements and fixtures be
only partially or selectively demolished (a "Partial Demolition") so that Tenant
may incorporate certain portions of such structures, improvements and fixtures
into Tenant's Initial Expansion Space or Additional Expansion Space, Landlord
shall obtain bids for the costs of the Seventh Floor Kitchen Demolition and the
Partial Demolition from contractors selected by Landlord. If the
estimated cost of the Partial Demolition ("Partial Demo Estimated Cost") is less
than the estimated cost of the Seventh Floor Kitchen Demolition ("Total Demo
Estimated Cost"), Landlord shall perform such Partial Demolition at Landlord's
sole cost and expense. If the Partial Demo Estimated Cost is greater
than the Total Demo Estimated Cost, Landlord shall only be responsible for the
costs and expenses for such Partial Demolition up to the amount of the Total
Demo Estimated Cost and Tenant shall elect to either: (a) perform such Partial
Demolition with contractors chosen by Tenant, which contracts shall be subject
to Landlord's prior written approval, which approval shall not be unreasonably
withheld, conditioned or delayed, in which event Landlord shall reimburse Tenant
for the costs of such Partial Demolition in the amount of the Total Demo
Estimated Cost within thirty (30) days after Landlord's receipt of Tenant's
written request therefor; or (b) require Landlord to perform such Partial
Demolition, in which event Tenant shall reimburse Landlord, within thirty (30)
days after Tenant's receipt of Landlord's written request therefor, for all
actual, out-of-pocket, and without Landlord markup thereon, costs and expenses
incurred by Landlord and Landlord's contractors in performing such Partial
Demolition which exceed the Total Demo Estimated Cost. If Landlord
completes such Partial Demolition, Landlord shall use commercially reasonable
efforts to coordinate all demolition and removal work for the Partial Demolition
with Tenant's contractors and Landlord shall not be responsible for any delays
in Tenant's construction of Tenant's Work which result therefrom. If
Tenant expands into the seventh floor of the Building and elects to utilize the
HVAC system in the fan room on the eighth floor of the Building that provides
service to the kitchen and cafeteria structures on the seventh floor, then the
1,369 rentable square feet of the eighth floor fan room shall be included in the
Rentable Square Feet of the seventh floor expansion
space. Notwithstanding anything contained herein to the contrary, if
Tenant timely exercises the Initial Expansion Option and desires to occupy all
or any portion of the Initial Expansion Space prior to the Initial/Additional
Expansion Space Commencement Date, Tenant must provide written notice thereof to
Landlord at least thirty (30) days prior to the date Tenant intends to occupy
the Initial Expansion Space, and during such period prior to the
Initial/Additional Expansion Space Commencement Date, Tenant shall pay Landlord
Annual Base Rent for the Initial Expansion Space in the amount of $5.00 per
square foot.
(B)
Additional Expansion
Option. In addition to the Initial Expansion Option, Tenant
shall have the option, to be exercised by delivering written notice to Landlord
on or prior to July 1, 2009 (the "Additional Expansion Option") to expand into
any portion of the Initial Expansion Space not previously leased by Tenant
pursuant to the Initial Expansion Option (the "Additional Expansion Space"),
starting with the lowest floors, provided that if Tenant elects to expand into
any floor of the Additional Expansion Space, Tenant must expand into the entire
floor (except for the fourth floor, where Tenant need only expand into the
remaining portion thereof not already leased by Tenant). If Tenant
timely exercises the Additional Expansion Option as to any Additional Expansion
Space, (i) the term of Tenant's lease of the Additional Expansion Space shall
commence on the Initial/Additional Expansion Space Commencement Date and expire
on the Termination Date of this Lease; (ii) the Annual Base Rent payable by
Tenant for the Additional Expansion Space shall be $30.00 per rentable square
foot commencing on the Initial/Additional Expansion Space Commencement Date and
escalating by $0.50 per rentable square foot for each calendar year thereafter
commencing on January 1, 2011; and (iii) Landlord shall provide Tenant with an
improvement allowance for the Additional Expansion Space in the amount of $75.00
per rentable square foot per floor ("Expansion Improvement
Allowance"). Tenant may apply an amount not to exceed: $2.00 per
rentable square foot per floor of the Expansion Improvement Allowance toward any
moving or relocation costs incurred by Tenant; $5.00 per rentable square foot
per floor of the Expansion Improvement Allowance toward costs incurred by Tenant
for architectural and space planning fees; and $28.00 per rentable square foot
per floor of the Expansion Improvement Allowance toward costs and expenses
incurred by Tenant reasonably related to relocating Tenant's business operations
to, or preparing for the occupancy of or business operations within, the
Additional Expansion Space; and Landlord shall have the right to deduct from the
Expansion Improvement Allowance a supervisory fee not exceed three percent (3%)
of the amount of the Expansion Improvement Allowance utilized by Tenant capped
at One and 00/100 Dollar ($1.00) per rentable square foot of the Additional
Expansion Space ("Expansion Supervisory Fee"), for hard construction
costs. Except for the Expansion Supervisory Fee, Landlord shall not
be entitled to any move-in, move-out, elevator or other supervisory fee, in
connection with Tenant's taking or returning all or any portion of the
Additional Expansion Space. Notwithstanding anything contained herein
to the contrary, if Tenant timely exercises the Additional Expansion Option and
desires to occupy all or any portion of the Additional Expansion Space prior to
the Initial/Additional Expansion Space Commencement Date, Tenant must provide
written notice thereof to Landlord at least thirty (30) days prior to the date
Tenant intends to occupy the Additional Expansion Space, and during such period
prior to the Initial/Additional Expansion Space Commencement Date, Tenant shall
pay Landlord Annual Base Rent for the Additional Expansion Space in the amount
of $5.00 per square foot.
(C) Lower Level Premises
Option. In addition to the Initial Expansion Option and the
Additional Expansion Option, Tenant shall have the option (the "Lower Level
Premises Option") to expand into the entire lower level one space containing
approximately 38,732 rentable square feet (the "LL1 Expansion Space") and a
portion of the lower level two space containing approximately 10,000 rentable
square feet (the "LL2 Expansion Space"). The LL1 Expansion Space and
the LL2 Expansion Space shall be together referred to herein as the "LL
Expansion Space"). Tenant shall exercise the Lower Level Premises
Option by delivering written notice to Landlord on or prior to July 1,
2014. If Tenant timely exercises the Lower Level Premises Option set
forth herein: (i) Tenant's lease of the LL Expansion Space shall commence on
January 1, 2015 (the "LL Expansion Commencement Date") and expire on the
Termination Date of this Lease; and (ii) Annual Base Rent for the LL Expansion
Space shall be $20.00 per rentable square foot gross (i.e., no Taxes and/or
Operating Expenses shall be charged with respect to the LL Expansion Space and
the LL Expansion Space shall not be subject to rent escalations during the
initial Term of this Lease). Tenant acknowledges and agrees that if
Tenant exercises the Lower Level Premises Option, Tenant's lease of the LL
Expansion Space shall be on an "as-is", "where-is" basis and Tenant must
exercise the Lower Level Premises Option with respect to all of the LL Expansion
Space if Tenant wishes to lease any of the LL Expansion Space.
(D) Upper Level Premises
Expansion Option. Provided this Lease is still in full force and effect
and Tenant has not exercised any Upper Level Relinquishment Option (as defined
in Article 37 of this Lease), Tenant shall have an additional option (the "Upper
Level Premises Expansion Option") to expand into approximately 25,000 rentable
square feet of non-retail, above-grade space in the Building which is located in
no more than two separate tranches (the "Upper Level Premises Expansion
Space"). Tenant shall exercise the Upper Level Premises Expansion
Option by delivering written notice to Landlord prior to January 1, 2013
("Tenant's Expansion Option Notice"). If Tenant does not deliver
Tenant's Expansion Option Notice to Landlord prior to January 1, 2013, this
Section 33(D) shall automatically be deemed null and void and of no further
force and effect. In the event Tenant timely delivers Tenant's
Expansion Option Notice, Landlord shall provide Tenant with a written notice no
earlier than January 1, 2013 and no later than January 1, 2015 ("Landlord's
Expansion Response Notice") notifying Tenant of (i) the exact size and location
of the Upper Level Premises Expansion Space being offered; (ii) the projected
commencement date for Tenant's lease of the Upper Level Premises Expansion
Space, which commencement date shall be at least twelve (12) months after
Tenant's receipt of Landlord's Expansion Response Notice; and (iii) Landlord's
determination of the Fair Market Rental Rate (as defined in Section 34.6 below)
for such Upper Level Premises Expansion Space; provided, however, Tenant may
object to Landlord's determination of the Fair Market Rental Rate, which shall
then be determined in accordance with Section 34.7
hereof. Tenant shall have within ninety (90) days after
Tenant's receipt of Landlord's Expansion Response Notice to accept, in writing,
the Upper Level Premises Expansion Space offered in Landlord's Expansion
Response Notice: (a) upon all of the terms and conditions set forth in
Landlord's Expansion Response Notice; or (b) upon all of the terms and
conditions set forth in Landlord's Expansion Response Notice except for
Landlord's determination of the Fair Market Rental Rate. Tenant must
accept all of the Upper Level Premises Expansion Space designated in Landlord's
Expansion Response Notice if Tenant desires to accept any such Upper Level
Premises Expansion Space. If Tenant fails to accept Landlord's offer
of the Upper Level Premises Expansion Space in writing as set forth in item (a)
or item (b) above, within the aforesaid ninety (90) day period, then (i) Tenant
shall be deemed to have rejected such Upper Level Premises Expansion Space, (ii)
Landlord shall have the right to lease the Upper Level Premises Expansion Space
designated in Landlord's Upper Level Premises Expansion Notice to other parties
and Tenant shall have no further rights or claims thereto, and (iii) this
Section 33(D) shall automatically become null and void and of no further force
and effect. Furthermore, if Tenant timely delivers the Tenant's
Expansion Option Notice, Tenant shall be deemed to have permanently waived the
first Upper Level Relinquishment Option as set forth in Article 37 of this
Lease.
(E)
Expansion
Options. The Initial Expansion Option, Additional Expansion
Option, Lower Level Premises Option and Upper Level Premises Expansion Option
shall be collectively referred to as the "Expansion Options".
(F) Tenant's Rights.
Notwithstanding anything contained in this Lease to the contrary, delivery of
possession of the Initial Expansion Space, Additional Expansion Space, Lower
Level Premises Expansion Space and Upper Level Premises Expansion Space
(collectively, the "Expansion Space") to Tenant and commencement of Tenant's
leasing thereof is and shall be subject to Landlord's obtaining possession from
any prior tenant or occupant of the Building who holds over in the Expansion
Space beyond the applicable lease expiration date. Landlord shall
deliver possession of the Expansion Space to Tenant on or prior to the
commencement date set forth in subsections (A), (B), (C) and (D) above, with
respect to the particular Expansion Space in question (collectively, the
"Expansion Space Commencement Date"); provided, however, that if Landlord is
unable to deliver any portion of the Expansion Space to Tenant on the applicable
Expansion Space Commencement Date, (i) Tenant shall not be obligated to pay any
Rent with respect to such portion of the Expansion Space until the date such
portion of the Expansion Space is actually delivered by Landlord; (ii) the
Expiration Date of this Lease shall not be affected thereby; and (iii) Landlord
shall pay to Tenant the amount of the holdover rent actually received by
Landlord for the tenant’s holdover in the applicable Expansion Space which
exceeds the actual monthly base rent and additional rent payable by the holdover
tenant during the last month of the tenant’s lease term, after Landlord deducts
any reasonable, out-of-pocket expenses incurred by Landlord in conjunction with
such holdover, including, but not limited to, reasonable attorneys’ fees and
court costs, if any. Except as otherwise expressly set forth in this
Article 33 to the contrary, Tenant shall accept possession of the Expansion
Space and commence paying Rent therefor on the date of delivery of possession
thereof by Landlord.
(G) Default. If
Tenant is in Default under this Lease, on the date Tenant exercises the
applicable Expansion Options or at any time thereafter until the date the
applicable Expansion Space is occupied by Tenant, and such Default is not cured
within the applicable grace or cure period specified in this Lease, then, at
Landlord's option, Tenant's rights pursuant to this Article 33 with respect to
the applicable Expansion Space shall lapse and be of no further force and
effect.
(H) Intentionally
Omitted.
(I) No
Cancellation. Except as otherwise expressly provided in this
Article 33 to the contrary, Tenant acknowledges and agrees that upon the
exercise of any of the Expansion Options set forth in this Article 33, Tenant
shall not have the right to withdraw, cancel or modify such exercise without
Landlord's prior written consent, which consent may be withheld for any reason
at all in Landlord's sole discretion.
(J) Termination
Date. Tenant's lease of any Expansion Space shall expire
concurrently with the Termination Date of this Lease.
34. RENEWAL
OPTIONS.
34.1. Renewal
Options. Subject to the provisions of this Article 34, Tenant
shall have two (2) options to extend the Term (each, a "Renewal Option", and
together, the "Renewal Options") for all of the Leased Premises (including any
space added to the Leased Premises pursuant to Article 33, Expansion Options,
Article 38, Right of First Refusal, or Article 39, Right of First Offer) for a
period of ten (10) years each (each, a "Renewal Term", and together, the
"Renewal Terms"), which options shall be exercisable by written notice delivered
by Tenant to Landlord as provided below. Upon the proper exercise of
a Renewal Option, the Term of this Lease shall be extended by the applicable
Renewal Term, subject to every term and condition of this Lease, except that (a)
Landlord shall have no obligation to improve the Leased Premises or the Building
nor to provide Tenant with an allowance for the same (provided that the absence
of such shall be reflected in the Renewal Rent therefor), and (b) the Annual
Base Rent for the Leased Premises shall be the applicable "Renewal Rent" (as
defined in Section 34.3 below).
34.2. Exercise of
Option. To exercise a Renewal Option, Tenant shall deliver a
written notice ("Renewal Notice") to Landlord no later than twelve (12) months
prior to the expiration of the initial Term of this Lease, as to the first
Renewal Option, and no later than twelve (12) months prior to the expiration of
the initial Renewal Term, as to the second Renewal Option. A Renewal
Option shall not be effective if, as of the date of exercise thereof, a Default
has occurred and is continuing. If Tenant does not deliver a Renewal
Notice to Landlord at least twelve (12) months prior to the expiration of the
initial Term of this Lease, this Article 34 shall automatically become null and
void and of no further force and effect.
34.3. Renewal
Rent. The Annual Base Rent payable hereunder for the Leased
Premises during the Renewal Term (the "Renewal Rent") shall be equal to the Fair
Market Rental Rate (as defined and determined pursuant to Section 34.6 below) as
of the commencement date for the applicable Renewal Term (for each Renewal Term,
the "Renewal Term Commencement Date").
34.4. Intentionally
Omitted.
34.5 All of the Leased
Premises. Tenant must exercise each Renewal Option as to all
of the Leased Premises demised under this Lease as of the date Tenant delivers
the Renewal Notice. Tenant may not exercise a Renewal Option as to
only a portion of the Leased Premises.
34.6 Fair Market Rental
Rate. For the purposes of this Lease, the "Fair Market Rental
Rate" shall be defined as a rate comprised of (a) the prevailing base rent
rate per square foot of rentable area available in the Pertinent Market (as
hereinafter defined), taking all economic factors into consideration, including
concessions, and (b) one hundred percent (100%) of any annual escalation of
any such base rent rate (based upon a fixed step and/or index) prevailing in the
Pertinent Market, both (a) and (b) taking into account (i) comparable
leases (on the basis of factors including, but not limited to, size and location
of space, commencement date and term of lease), if any, executed within the
previous six (6) months for improved space in the Building and (ii) leases
for comparable (on the basis of factors such as, but not limited to, size and
location of space, commencement date, base year, and term of lease) similarly
improved space in similar office buildings in the Chicago Central Loop submarket
in which the Building is located which are comparable to the Building in
reputation, quality, age, size, location, and level and quality of services
provided. The Building, together with such comparable buildings, are
herein referred to as the "Pertinent Market". In determining the Fair
Market Rental Rate, any party making such determination shall also take into
consideration: (w) the definition of rentable area or net rentable area with
respect to which such rental rates are computed and (x) annual market
escalations of base rent, tax and operating expense stops, and the
like.
34.7 Determination
Procedure. The Fair Market Rental Rate for each Renewal Term
shall be determined pursuant to the provisions of this Article 34, and Landlord
and Tenant shall have no further right to appraisal, shall be bound by any
determination made pursuant to this Article 34 and shall be obligated to pay and
accept the rate as determined hereby. Landlord shall make its
determination of the Fair Market Rental Rate for the applicable Renewal Term by
using its good faith judgment. Landlord shall provide written notice
of such amount to Tenant within thirty (30) days after the later of (i)
Landlord's receipt of Tenant's Renewal Notice or (ii) fifteen (15) months before
the applicable Renewal Term Commencement Date.
(i) Tenant
shall have fifteen (15) business days ("Tenant’s Review Period") after receipt
of Landlord’s notice of the Fair Market Rental Rate within which to accept such
rental or to object thereto in writing. In the event Tenant accepts
Landlord's determination of the Fair Market Rental Rate in writing, Landlord and
Tenant shall execute an amendment setting forth the terms and conditions of
Tenant's lease of the Leased Premises during the Renewal Term. In the
event Tenant fails to accept or rejects Landlord’s determination of the Fair
Market Rental Rate in writing prior to the expiration of Tenant's Review Period,
Tenant shall be deemed to have objected to Landlord's
determination. In the event that Tenant objects or is deemed to have
objected to Landlord's determination of the Fair Market Rental Rate, Landlord
and Tenant shall attempt to agree upon such Fair Market Rental Rate using their
good faith efforts. If Landlord and Tenant fail to reach agreement
within forty-five (45) days following the expiration of Tenant’s Review Period
(the "Outside Agreement Date"), then each party shall place in a separate sealed
envelope their final proposal as to Fair Market Rental Rate and such
determination shall be submitted to arbitration in accordance with subsections
(iii) and (iv) below.
(ii) In
the event that Landlord fails to timely generate the initial written notice of
Landlord’s determination of the Fair Market Rental Rate within thirty (30) days
after the later of (A) Landlord's receipt of Tenant's Renewal Notice or (B)
fifteen (15) months prior to the applicable Renewal Term Commencement Date,
Tenant may commence such negotiations by providing the initial notice, in which
event Landlord shall have fifteen (15) days ("Landlord's Review Period") after
receipt of Tenant’s notice of Tenant's determination of the Fair Market Rental
Rate within which to accept such rental. In the event Landlord fails
to accept in writing such rental proposed by Tenant within such fifteen (15) day
period, then such proposal shall be deemed rejected, and Landlord and Tenant
shall attempt in good faith to agree upon such Fair Market Rental Rate using
their good faith efforts. If Landlord and Tenant fail to reach
agreement within fifteen (15) days following Landlord’s Review Period (which
shall be, in such event, the "Outside Agreement Date" in lieu of the above
definition of such date), then each party shall place in a separate sealed
envelope their final proposal as to the Fair Market Rental Rate and such
determination shall be submitted to arbitration in accordance with subsections
(iii) and (iv) below.
(iii) Landlord
and Tenant shall meet with each other within five (5) business days of the
Outside Agreement Date and exchange their respective determinations of the Fair
Market Rental Rate in sealed envelopes and then open such envelopes in each
other’s presence (each determination respectively, "Landlord's Determination"
and "Tenant's Determination", and together, the "Determinations"). If
Landlord and Tenant do not mutually agree upon the Fair Market Rental Rate
within one (1) business day of the exchange and opening of envelopes, then, the
Fair Market Rental Rate shall be determined as follows, each party being bound
by its determination and Landlord's Determination and Tenant's Determination
establishing the only two choices available to the Appraisal Panel (as
hereinafter defined).
(iv) Within
ten (10) days after the parties exchange the Determinations, the parties shall
each appoint an arbitrator who shall be (A) a licensed Illinois real estate
broker with at least ten (10) years' experience in leasing commercial office
space in buildings similar to the Building in the Pertinent Market immediately
prior to his or her appointment and (B) familiar with the rentals then being
charged in the Building and in the comparable buildings. Landlord and
Tenant may each appoint the real estate brokers who assisted in shaping
Landlord's Determination and Tenant's Determination, respectively, as their
respective arbitrators. If either Landlord or Tenant fails to appoint
an arbitrator within the ten (10) day period, the Fair Market Rental Rate for
the Renewal Term shall be deemed to be the Determination of the party who
properly selected an arbitrator. Within twenty (20) days following
their appointment, the two arbitrators so selected shall appoint a third,
similarly qualified, independent arbitrator who has not had any prior business
relationship with either party (the "Independent Arbitrator"). If an
Independent Arbitrator has not been so selected by the end of such twenty (20)
day period, then either party, on behalf of both, may request such appointment
by the local office of the Chicago Association of Realtors or the American
Arbitration Association (or any successor thereto). Within five (5)
days after the appointment of the Independent Arbitrator, Landlord and Tenant
shall submit copies of Landlord’s Determination and Tenant’s Determination to
the three arbitrators (the "Appraisal Panel"). The Appraisal Panel
shall conduct a hearing, at which Landlord and Tenant may each make supplemental
oral and/or written presentation, with an opportunity for rebuttal by the other
party and for questioning by the members of the Appraisal Panel, if they so
wish. Within fifteen (15) days following the hearing, the Appraisal
Panel, by majority vote, shall select either Landlord’s Determination or
Tenant’s Determination of Fair Market Rental Rate for the Renewal Term, shall
have no right to propose a middle ground or to modify either of the two
proposals or the provisions of the Lease, and the Appraisal Panel shall render
such decision to Landlord and Tenant within such fifteen (15) day
period. The decision of the Appraisal Panel shall be final and
binding upon the parties, and may be enforced in accordance with the provisions
of the law of the State of Illinois. In the event of the failure,
refusal or inability of any member of the Appraisal Panel to act, a successor
shall be appointed in the manner that applied to the selection of the member
being replaced. The party whose determination was not selected by the
Appraisal Panel shall pay all of the fees and expenses of the arbitrators
designated by each party, the fees and expenses of the Independent Arbitrator,
and the costs and expenses incident to the proceedings (excluding attorneys’
fees and similar expenses of the parties which shall be borne separately by each
of the parties).
35. RETAIL PREMISES
RELINQUISHMENT OPTION.
(A) Provided
that Tenant is not in Default on either the Retail Relinquishment Date (as
defined herein) or the Retail Relinquishment Notice Date (as defined herein),
Tenant shall have the right effective as of December 31, 2010 (the "Retail
Relinquishment Date") to terminate the Lease with respect to (i) all of the
Retail Premises ("Total Retail Relinquishment Option"); or (ii) a portion of the
Retail Premises ("Partial Retail Relinquishment Option"), provided that the
portion of the Retail Premises that is not relinquished by Tenant: (a) begins at
the western-most portion of the Retail Premises parallel to LaSalle Street, (b)
ends at a logical demarcation point (e.g., at a column) within the Retail
Premises, and (c) does not extend east of the cross-hatched portion of the
Retail Premises as depicted on Exhibit N attached
hereto. The portion of the Retail Premises that is relinquished by
Tenant pursuant to this Article 35 shall be referred to as the "Relinquished
Premises"). The Total Retail Relinquishment Option and the Partial
Retail Relinquishment Option are sometimes together referred to herein as the
"Retail Relinquishment Option". The Retail Relinquishment Option
shall be exercised by Tenant giving written notice to Landlord (the "Retail
Relinquishment Notice") on or before April 1, 2010 (the "Retail Relinquishment
Notice Date").
(B) If
Tenant exercises the Total Retail Relinquishment Option in accordance with the
terms of this Article 35: (a) all obligations of Landlord and Tenant (including
the payment of Rent and other charges) under this Lease with respect to the
Retail Premises, except indemnification and other obligations under this Lease
which expressly survive any termination or expiration hereof, shall cease as of
midnight on the Retail Relinquishment Date, (b) the Retail Premises and the
Retail Signs shall be surrendered by Tenant upon the Retail Relinquishment Date
in accordance with the terms of Article 18 and Section 28.3, respectively, of
this Lease, (c) Tenant's Retail Premises Proportionate Share shall be
eliminated, (d) Tenant shall remove, and have no further right to operate, "ATM
1" as depicted on Exhibit
N attached hereto, and (e) the rentable square footage of the Retail
Premises shall be removed from the Leased Premises and Tenant shall continue to
lease from Landlord the rentable square footage of the Leased Premises which
shall remain thereafter until the Termination Date, subject to the terms of
Articles 36 and 37 hereinbelow.
(C) If
Tenant exercises the Partial Retail Relinquishment Option in accordance with the
terms of this Article 35: (a) Tenant's Retail Relinquishment Notice shall set
forth the size and configuration of the Relinquished Premises; (b) all
obligations of Landlord and Tenant (including the payment of Rent and other
charges) under this Lease solely with respect to the Relinquished Premises,
except indemnification and other obligations under this Lease which expressly
survive any termination or expiration hereof, shall cease as of midnight on the
Retail Relinquishment Date, (c) the Relinquishment Premises and the Retail Signs
shall be surrendered by Tenant upon the Retail Relinquishment Date in accordance
with the terms of Article 18 and Section 28.3, respectively, of this Lease, (d)
Tenant's Retail Premises Proportionate Share shall be reduced accordingly, (e)
Tenant shall remove, and have no further right to operate, "ATM 1" as depicted
on Exhibit N attached
hereto, and (f) the rentable square footage of the Relinquished Premises shall
be removed from the Leased Premises and Tenant shall continue to lease from
Landlord the rentable square footage of the Leased Premises (including that
portion of the Retail Premises which has not been relinquished) which shall
remain thereafter until the Termination Date, subject to the terms of Articles
36 and 37 hereinbelow.
(D) If
Tenant fails to timely deliver the Retail Relinquishment Notice, Tenant's Retail
Relinquishment Option granted hereunder shall automatically and without further
action by the parties hereto be deemed to be null and void. If
Landlord or Tenant so requires, Landlord and Tenant shall execute an amendment
to this Lease not less than thirty (30) days prior to the Retail Relinquishment
Date memorializing the modification to the Leased Premises, Rent, Tenant's
Retail Premises Proportionate Share, and other terms and conditions of this
Lease.
36. TERMINATION
OPTION.
Provided that Tenant is not in Default
on either the Early Termination Date (as defined herein) or the Early
Termination Notice Date (as defined herein), Tenant shall, during the Term, have
a one (1)-time right effective 11:59 p.m. on December 31, 2018 ("Early
Termination Date") to terminate the Lease with respect to all (and not a part)
of the Leased Premises. Such option to terminate shall be exercised
by Tenant giving written notice to and received by Landlord ("Early Termination
Notice") on or before December 31, 2017 ("Early Termination Notice
Date"). In the event Tenant exercises the termination option
described herein, Tenant shall deliver to Landlord a payment equal to Landlord's
unamortized transaction costs, which shall be: (i) Landlord's Maximum
Contribution and any subsequent tenant improvement allowance, (ii) free rent, if
any (as to any space added to the Leased Premises after the Effective Date,
including but not limited to Upper Level Premises Expansion Space, Refusal Space
and First Offer Space) but expressly excluding any beneficial occupancy, and
(iii) any leasing or brokerage commissions paid by Landlord in connection with
this Lease, calculated based on an interest rate of eight percent (8%) per annum
on a compounded basis, plus three (3) months of Tenant's gross Rent in effect
upon the Early Termination Date (collectively, the "Early Termination Fee");
provided, however, that one half (1/2) of the Early Termination Fee shall be
delivered to Landlord simultaneously with the Early Termination Notice, and the
remaining one half (1/2) of the Early Termination Fee shall be delivered to
Landlord upon the Early Termination Date. The parties acknowledge and
agree that the Early Termination Fee is the reasonable consideration payable to
Landlord for such termination with respect to the Leased Premises leased to
Tenant in the Building.
37. UPPER
LEVEL RELINQUISHMENT OPTIONS.
(A) If
Tenant is leasing the Threshold Amount of rentable square feet in the Building
upon the last day of the sixth (6th) Lease
Year, Tenant shall have two (2) options (each being an "Upper Level
Relinquishment Option") to terminate the Lease with respect to one (1) entire
floor (and not a portion thereof) of the Upper Level Premises (e.g., one (1)
entire floor with respect to each Upper Level Relinquishment Option) located on
the sixth (6th) floor
or higher (each such floor constituting a "Recapture Floor") which options, if
exercised, shall be effective at 11:59 p.m. on (a) the last day of the seventh
(7th) Lease
Year as to the first (1st) option
(the "First Upper Level Relinquishment Date") and (b) the last day of the
twelfth (12th) Lease
Year as to the second (2nd) option
(the "Second Upper Level Relinquishment Date", with the First Upper Level
Relinquishment Date and the Second Upper Level Relinquishment Date each being
known as an "Upper Level Relinquishment Date"). Notwithstanding the
foregoing, if Tenant is leasing less than the Threshold Amount of rentable
square feet in the Building upon the last day of the sixth (6th) Lease
Year, Tenant shall have the right to exercise only one (1) Upper Level
Relinquishment Option with respect to one (1) Recapture Floor upon either the
First Upper Level Relinquishment Date or the Second Upper Level Relinquishment
Date. Any Upper Level Relinquishment Option shall be exercised by
Tenant giving written notice thereof to Landlord (the "Upper Level
Relinquishment Notice") at least twelve (12) months prior to the applicable
Upper Level Relinquishment Date. If Tenant exercises an Upper Level
Relinquishment Option in accordance with the terms of this Article 37 (a) all
obligations of Landlord and Tenant (including the payment of Rent and other
charges) under this Lease with respect to the applicable Recapture Floor, except
indemnification and other obligations under this Lease which expressly survive
any termination or expiration hereof, shall cease as of midnight on the
applicable Upper Level Relinquishment Date, (b) the applicable Recapture Floor
shall be surrendered by Tenant upon the applicable Upper Level Relinquishment
Date in accordance with the terms of Article 18 of this Lease, (c) Tenant's
Upper Level Premises Proportionate Share shall be reduced accordingly, and (d)
the rentable square footage of the applicable Recapture Floor shall be removed
from the Leased Premises and Tenant shall continue to lease from Landlord the
rentable square footage of the Leased Premises which shall remain thereafter
until the Termination Date, subject to the terms of Article 36
hereinabove. If Tenant fails to timely deliver an Upper Level
Relinquishment Notice for any Upper Level Relinquishment Option granted
hereunder, such Upper Level Relinquishment Option shall automatically and
without further action by the parties hereto be deemed to be null and
void. Furthermore, notwithstanding anything contained in this Article
37 to the contrary, if Tenant delivers a written acceptance of the Upper Level
Premises Expansion Space set forth in Landlord's Expansion Response Notice
pursuant to Section 33(D) of this Lease, Tenant shall automatically forfeit
Tenant's right to exercise the first Upper Level Relinquishment
Option.
(B) In
the event Tenant exercises an Upper Level Relinquishment Option described
herein, Tenant shall deliver to Landlord, simultaneously with the Upper Level
Relinquishment Notice, a payment equal to Landlord's unamortized transaction
costs, which shall be: (i) Landlord's Maximum Contribution and any subsequent
tenant improvement allowance, (ii) free rent, if any (as to any space added to
the Leased Premises after the Effective Date, including but not limited to Upper
Level Premises Expansion Space, Refusal Space and First Offer Space) and expressly excluding
any beneficial occupancy, and (iii) any leasing or brokerage commissions paid by
Landlord in connection with the applicable Recapture Floor, calculated based on
an interest rate of eight percent (8%) per annum on a compounded basis, plus
three (3) months of Tenant's gross Rent in effect for such Recapture Floor upon
the applicable Upper Level Relinquishment Date (collectively, the "Recapture
Floor Termination Fee"). The parties acknowledge and agree that the
Recapture Floor Termination Fee is the reasonable consideration payable to
Landlord for such termination with respect to any particular Recapture Floor
leased to Tenant in the Building.
(C) Tenant's
right to exercise any Upper Level Relinquishment Option is made expressly
subject to the conditions that (i) on the date upon which Tenant delivers an
Upper Level Relinquishment Notice to Landlord and (ii) upon the applicable Upper
Level Relinquishment Date, neither this Lease nor Tenant's right to possession
of the Leased Premises has been previously terminated and Tenant is not in
Default under this Lease.
(D) If
Landlord or Tenant so requires, Landlord and Tenant shall execute an amendment
to this Lease not less than thirty (30) days prior to any Upper Level
Relinquishment Date memorializing the modification to the Leased Premises, Rent,
and other conditions of this Lease resulting from the exercise of any Upper
Level Relinquishment Option.
38. RIGHT OF FIRST
REFUSAL
38.1 Right of First
Refusal. Landlord hereby grants Tenant a one-time right of first refusal
("Right of First Refusal") with respect to certain space in the Building located
on floors ten, eleven and twelve ("Refusal Space"), subject to the terms and
conditions set forth in this Article 38. Landlord shall use
commercially reasonable efforts to lease floors nine, ten, eleven and twelve
from the top down.
38.2 Procedure. Provided
that as of the date of the giving of the Refusal Notice (as defined in Section
38.3 below) through and including the Refusal Space Commencement Date (as
defined in Section 38.3 below), (i) Tenant has exercised the Expansion Options
(other than the Upper Level Premises Expansion Option and the Lower Level
Premises Option) subject to the terms of Section 38.6 below, and (ii) Tenant is
not in Default under the Lease, then, if at any time during the Term the Refusal
Space is, or is to become, vacant and unencumbered by any rights of any third
party, and if Landlord enters into and completes a serious negotiation from
which a lease draft is expected to be produced ("Serious Negotiation") for the
Refusal Space with anyone (a "Proposed Tenant") who is interested in leasing all
or any portion of the Refusal Space, Landlord shall first offer to Tenant the
right to lease such Refusal Space upon all the terms and conditions that the
Proposed Tenant and Landlord agree upon and are willing to accept with respect
to the Refusal Space (“Proposed Lease”), including but not limited to:
(a) the proposed Annual Base Rent for the Refusal Space, (b) the proposed
commencement date for the Refusal Space, (c) any economic terms for the
Proposed Tenant’s Lease of the Refusal Space, including any tenant improvement
allowance or rent abatement and other concessions, (d) the term of the
lease for the Refusal Space, and (e) the exact square footage of the Refusal
Space being offered.
38.3 Refusal Notice. Such
offer of the Refusal Space shall be made by Landlord to Tenant in a written
notice (the "Refusal Notice") which Refusal Notice shall contain a copy of an
executed or unexecuted final letter of intent and shall specify: (a) the
location, configuration and rentable square footage of the Refusal Space and the
date of commencement of the term of the Refusal Space (the "Refusal Space
Commencement Date") under the Proposed Lease with the Proposed Tenant, (b) the
Annual Base Rent for the Refusal Space, (c) the expiration date for Tenant’s
lease of the Refusal Space and (d) any other material economic terms contained
in the Proposed Lease. Landlord shall use commercially reasonable
efforts to provide Tenant with written or verbal notices regarding the general
status of negotiations with the Proposed Tenant before such negotiations are
complete. Provided Landlord has previously notified Tenant of the
negotiations with the Proposed Tenant before delivering the Refusal Notice,
Tenant may accept the offer set forth in the Refusal Notice by delivering to
Landlord an unconditional acceptance of such offer, in writing, within five (5)
business days after delivery by Landlord of the Refusal Notice to Tenant
("Tenant's Acceptance Notice"). If Landlord has not notified Tenant
of the negotiations with the Proposed Tenant in writing or verbally at least
five (5) business days before delivering the Refusal Notice to Tenant, then
Tenant shall have ten (10) business days to deliver Tenant's Acceptance
Notice. If Tenant does not accept (or fails to timely submit Tenant's
Acceptance Notice) an offer made by Landlord pursuant to the provisions of this
Section 38.3 with respect to the Refusal Space designated in the Refusal Notice,
then Landlord shall be under no further obligation to Tenant with respect to
such space. In order to send the Refusal Notice, Landlord does not need to have
a negotiated lease with the Proposed Tenant but may merely have entered into and
completed a Serious Negotiation.
38.4 All Refusal Space.
Tenant must accept all Refusal Space offered by Landlord in the Refusal Notice
if it desires to accept any of such Refusal Space and may not exercise its right
with respect to only a portion of such space. If Landlord desires to
lease more than just the Refusal Space to a Proposed Tenant, Landlord may offer
to Tenant, pursuant to all of the terms of this Article 38 all such space which
Landlord desires to lease, and Tenant may exercise its rights hereunder with
respect to all such space or for the Refusal Space only. If Tenant at
any time declines the Refusal Space offered by Landlord, Tenant shall be deemed
to have irrevocably waived all further rights under this Article 38 with respect
to the Refusal Space that was the subject of the Refusal Notice, and Landlord
shall be free to lease the Refusal Space to the Proposed Tenant, or any other
interested party, provided that such lease with the Proposed Tenant or other
interested party (A) is executed within one hundred and eighty (180) days after
the date Tenant's Right of First Refusal lapsed or Tenant waived the same, and
(B) is on the same terms and conditions set forth in the Refusal Notice;
otherwise, Tenant's rights under this Article 38 with respect to such Refusal
Space shall be deemed reinstated and Landlord shall resubmit a Refusal Notice to
Tenant for any new proposed transaction. If Tenant properly exercises
its Right of First Refusal, Landlord shall prepare an amendment (the "Refusal
Space Amendment") adding the Refusal Space to the Leased Premises on the terms
set forth in the Refusal Notice and reflecting the changes in the Annual Base
Rent, the Rentable Square Feet of the Leased Premises, Tenant's Upper Level
Premises Proportionate Share of Operating Expenses, the Refusal Space
Commencement Date, other concessions set forth in the Refusal Notice, and
otherwise on the same terms as contained in the Lease. A copy of the
Refusal Space Amendment shall be sent to Tenant within a reasonable time after
Landlord's receipt of Tenant's notice of exercise, and the parties shall proceed
diligently to fully execute the Refusal Space Amendment within fifteen (15)
business days thereafter.
38.5 Delivery of Refusal
Space. If Tenant properly exercises any Right of First Refusal as set
forth in this Article 38, Landlord shall deliver possession of the Refusal Space
to Tenant on or prior to the Refusal Space Commencement Date; provided, however,
that if Landlord is unable to deliver any portion of the Refusal Space to Tenant
on the applicable Refusal Space Commencement Date, (i) Tenant shall not be
obligated to pay any Rent with respect to such portion of the Refusal Space
until the date such portion of the Refusal Space is actually delivered by
Landlord; (ii) the Expiration Date of this Lease shall not be affected thereby;
and (iii) Landlord shall pay to Tenant the amount of the holdover rent actually
received by Landlord for the tenant’s holdover in the applicable Refusal Space
which exceeds the actual monthly base rent and additional rent payable by the
holdover tenant during the last month of the tenant’s lease term, after Landlord
deducts any reasonable, out-of-pocket expenses incurred by Landlord in
conjunction with such holdover, including, but not limited to, reasonable
attorneys’ fees and court costs, if any.
38.6 Expansion Options. In
the event that Tenant has not exercised the Expansion Options with respect to
all of the Initial Expansion Space or Additional Expansion Space prior to the
date Landlord delivers the Refusal Notice, Tenant may exercise Tenant's Right of
First Refusal with respect to the Refusal Space if, and only if Tenant exercises
any remaining (if any) option to expand into the Expansion Space then available
(“Simultaneous Exercise of Expansion Option”). The Simultaneous
Exercise of Expansion Option shall be exercised in accordance with the terms and
conditions set forth in Article 33 above, except that Tenant shall only be able
and required to lease the Expansion Space then available which is not (a) being
leased or occupied by another tenant or occupant of the Building, or (b) subject
to the rights of such other tenant or occupant.
38.7 One-time
Right. Once Tenant rejects (or fails to timely accept) the
Refusal Space set forth in Landlord's Refusal Notice, Tenant shall have no
further rights to such Refusal Space under this Article 38, subject to the terms
of Sections 38.3 and 38.4. Landlord shall use commercially reasonable
efforts to lease the Refusal Space, or any portion thereof, to a Proposed Tenant
starting with the highest floors of the Refusal Space first; provided, however,
Tenant acknowledges and agrees that Landlord shall not be liable to Tenant,
Tenant shall have no claim against Landlord and Landlord shall not be in default
under this Lease if a Proposed Tenant chooses to not to lease the Refusal Space
starting with the highest floors first, provided Landlord has used such
commercially reasonable efforts.
38.8 Additional Rights of First
Refusal. Notwithstanding anything to the contrary contained in
this Lease, commencing upon the Effective Date, Landlord grants Tenant ongoing
rights of first refusal on (i) the LL Expansion Space ("Lower Level Refusal
Space") (the "Lower Level Refusal Option") and (ii) any space located on the
ninth (9th) floor
of the Building ("Ninth Floor Refusal Space") (the "Ninth Floor Refusal
Option"), upon the terms and conditions set forth below.
(A) Lower Level Refusal
Option. Landlord must offer the Lower Level Refusal Space to
Tenant in accordance with all of the terms and conditions of Section 38.2
through Section 38.5 which apply to the Refusal Space, except that: (1) Tenant
shall not be required to exercise the Expansion Options not previously exercised
to accept the Lower Level Refusal Space designated in Landlord's Refusal Notice;
and (2) once Tenant rejects (or fails to timely accept) any Lower Level Refusal
Space set forth in Landlord's Refusal Notice, Tenant's Lower Level Refusal
Option shall still apply to such Lower Level Refusal Space if the Proposed
Tenant elects not to lease such space or elects to lease such space on terms and
conditions that vary from those set forth in the Refusal Notice.
(B) Ninth Floor Refusal
Option. Landlord must offer the Ninth Floor Refusal Space to
Tenant in accordance with all of the terms and conditions of Section 38.2
through Section 38.5 which apply to the Refusal Space, except that: (1) Tenant
shall not be required to exercise the Expansion Options not previously exercised
to accept any of the Ninth Floor Refusal Space set forth in Landlord's Refusal
Notice; (2) Tenant's Ninth Floor Refusal Option shall be subject and subordinate
to the herein reserved right of Landlord to renew or extend the term of any
lease with the tenant then leasing space on the ninth floor (or any of its
subtenants, affiliates or assignees) pursuant to a renewal or extension option
set forth in such lease, provided that such renewal or extension option was
documented in Landlord's Refusal Notice, and (3) once Tenant rejects (or fails
to timely accept) any Ninth Floor Refusal Space set forth in Landlord's Refusal
Notice, Tenant's Ninth Floor Refusal Option shall still apply to such Ninth
Floor Refusal Space if the Proposed Tenant elects not to lease such space or
elects to lease such space on terms and conditions that vary from those set
forth in the Refusal Notice.
38.9 Special Conditions on Term
of Lease of Refusal Space or Ninth Floor Refusal
Space. Notwithstanding anything to the contrary contained in
this Article 38, with respect to the Refusal Space and the Ninth Floor Refusal
Space only, (i) if the initial term set forth in the Refusal Notice delivered by
Landlord to Tenant expires prior to the Expiration Date of the initial Term of
this Lease and Tenant properly exercises the Right of First Refusal, Tenant
shall lease such Refusal Space and/or Ninth Floor Refusal Space for the term set
forth in the Refusal Notice and the instrument governing Tenant's lease of such
space shall contain options to renew the term of Tenant's lease of such space at
the Fair Market Rental Rate, in accordance with the renewal procedures set forth
in Sections 34.6 and 34.7 of this Lease, so that it shall expire coterminous
with the Term of this Lease; and (ii) if Landlord delivers any Refusal Notice
prior to December 31, 2013 in which the term of the proposed lease for such
Refusal Space and/or Ninth Floor Refusal Space expires after the Expiration Date
of this Lease, Tenant shall have the right to lease such Refusal Space and/or
Ninth Floor Refusal Space for a term which expires coterminously with the Term
of this Lease notwithstanding the term set forth in the Refusal
Notice.
39. RIGHT OF FIRST
OFFER
39.1 Right of First Offer.
Landlord hereby grants Tenant an ongoing right of first offer ("Right of First
Offer”) commencing April 1, 2010 and expiring December 31, 2020 with respect to
the Initial Expansion Space and Additional Expansion Space ("First Offer
Space"), subject to the terms and conditions set forth in this Article
39.
39.2 Procedure. Provided
that as of the date of the giving of the First Offer Notice (as defined in
Section 39.3 below), Tenant is not in Default under the Lease, then, if at any
time on or prior to December 31, 2020, all or any portion of the First Offer
Space is, or is to become, vacant and unencumbered by any rights of any third
party, and if Landlord is interested in leasing the First Offer Space other than
to the tenant then leasing such space (or its subtenants, affiliates or
assignees), Landlord shall first offer to Tenant the right to lease such portion
of the First Offer Space upon all the terms and conditions set forth in the
Lease with respect to the Upper Level Premises except as otherwise set forth in
Landlord’s First Offer Notice, subject to Section 39.6
below. Notwithstanding anything to the contrary contained in this
Lease, Tenant's Right of First Offer shall be subject and subordinate to the
herein reserved right of Landlord to renew or extend the term of any lease with
the tenant then leasing such space (or any of its subtenants, affiliates or
assignees), whether pursuant to a renewal or extension option in such lease or
otherwise.
39.3 First Offer Notice.
Such offer of the First Offer Space shall be made by Landlord to Tenant in a
written notice (the "First Offer Notice") which shall specify (a) the location,
configuration and rentable square footage of the First Offer Space and the date
Landlord plans to deliver such First Offer Space to Tenant (the "First Offer
Space Delivery Date"), (b) the Annual Base Rent for the First Offer Space, and
(c) any other material economic terms pertaining to the First Offer
Space. Tenant may accept the offer set forth in the First Offer
Notice by delivering to Landlord (i) an unconditional acceptance of such offer
or (ii) an acceptance of such offer noting Tenant's objection to items (b) and
(c) above, in writing, within ten (10) days after delivery by Landlord of the
First Offer Notice to Tenant ("Tenant's First Offer Acceptance
Notice"). If Tenant does not accept (or fails to submit Tenant's
First Offer Acceptance Notice timely) an offer made by Landlord pursuant to the
provisions of this Article 39 with respect to the First Offer Space designated
in the First Offer Notice, then Landlord shall be under no further obligation to
Tenant with respect to such First Offer Space except as otherwise expressly set
forth in 39.4 below. If Tenant's First Offer Acceptance Notice
contains an objection to items (b) and (c) above, Landlord and Tenant shall use
commercially reasonable efforts to agree on the Annual Base Rent and other
economic terms for the First Offer Space within thirty (30) days after
Landlord's receipt of Tenant's First Offer Acceptance Notice. If
Landlord and Tenant are unable to reach an agreement within such thirty (30) day
period, the Annual Base Rent and other economic terms of Tenant's lease of the
First Offer Space shall be determined in accordance with Sections 34.7(iii) and
34.7(iv) of this Lease (provided that the thirty (30) day period described in
the immediately preceding sentence shall be deemed the Outside Agreement Date in
accordance with Section 34.7(iii) of this Lease).
39.4 All First Offer
Space. Tenant must accept all and not a portion of the First Offer Space
offered by Landlord in the First Offer Notice if it desires to accept any of
such First Offer Space. If Tenant at any time declines the First
Offer Space offered by Landlord, Tenant shall be deemed to have irrevocably
waived all further rights under this Article 39 with respect to the First Offer
Space that was the subject of the First Offer Notice, and Landlord shall be free
to lease the First Offer Space to another proposed tenant (the "Proposed First
Offer Tenant"), provided that such lease with the Proposed First Offer Tenant is
executed within one hundred eighty (180) days after the date Tenant's Right of
First Offer lapsed or Tenant waived the same. If the lease with the
Proposed First Offer Tenant is not executed within such one hundred and eighty
(180) day period, the subject portion of the First Offer Space shall once again
be subject to Tenant's Right of First Offer as set forth in this Article 39, and
Landlord must re-offer the First Offer Space to Tenant. If Tenant
properly exercises its Right of First Offer, Landlord shall prepare an amendment
(the "First Offer Space Amendment") adding that portion of the First Offer Space
to the Leased Premises on the terms set forth in the First Offer Notice and
reflecting the changes in, among other things, the Annual Base Rent, the
Rentable Square Feet of the Leased Premises, Tenant's Upper Level Premises
Proportionate Share of Operating Expenses and otherwise on the same terms as
contained in the Lease. A copy of the First Offer Space Amendment
shall be sent to Tenant within a reasonable time after Landlord's receipt of
Tenant's notice of exercise, and the parties shall proceed diligently to fully
execute the First Offer Space Amendment within fifteen (15) business days
thereafter.
39.5 Delivery of First Offer
Space. The commencement date for Tenant's lease of any First Offer Space
("First Offer Space Commencement Date") shall be the earlier to occur of: (i)
one hundred and twenty (120) days after the date Landlord actually delivers the
First Offer Space to Tenant or (ii) the date Tenant substantially completes
Tenant's build-out of such First Offer Space. If Tenant properly
exercises any Right of First Offer as set forth in this Article 39, Landlord
shall deliver possession of the First Offer Space to Tenant on or prior to the
First Offer Space Delivery Date; provided, however, that if Landlord is unable
to deliver any portion of the First Offer Space to Tenant on the applicable
First Offer Space Delivery Date, (i) Tenant shall not be obligated to pay any
Rent with respect to such portion of the First Offer Space until the First Offer
Space Commencement Date; (ii) the Expiration Date of this Lease shall not be
affected thereby; and (iii) Landlord shall pay to Tenant the amount of the
holdover rent actually received by Landlord for the tenant’s holdover in the
applicable First Offer Space which exceeds the actual monthly base rent and
additional rent payable by the holdover tenant during the last month of the
tenant’s lease term, after Landlord deducts any reasonable, out-of-pocket
expenses incurred by Landlord in conjunction with such holdover, including, but
not limited to, reasonable attorneys’ fees and court costs, if any.
39.6 Termination
Date. Notwithstanding anything contained in this Article 39 to
the contrary, Tenant's lease of any First Offer Space shall expire concurrently
with the Termination Date of this Lease.
40. LANDLORD
DEFAULT.
(A) In
the event that Landlord shall default in the performance or observance of any of
the terms, conditions or agreements in this Lease, Tenant shall give written
notice thereof to Landlord and any Mortgagee of which Tenant has been made aware
in writing. Landlord shall be deemed to be in default ("Landlord
Default") of this Lease if Landlord or any such Mortgagee fails to perform any
act to be performed by Landlord hereunder or to comply with any condition or to
comply with any condition or covenant contained herein on Landlord's part to be
performed and such failure continues for more than thirty (30) days after
Landlord receives written notice thereof from Tenant (or if such failure
involves a hazardous or dangerous condition and is not cured by Landlord
immediately upon written notice to Landlord), unless such failure by its nature
cannot reasonably be cured within said thirty (30) day period (or immediately in
the event of an emergency as aforesaid), in which event, provided Landlord
commences to cure such failure within such thirty (30) day period (or
immediately in the event of an emergency as aforesaid) and thereafter diligently
and continuously proceeds to cure such failure, Landlord shall have such
additional time as is reasonably necessary to cure such failure. If a
Landlord Default under this Lease occurs, Tenant may: (i) pursue the remedy of
injunctive relief, including specific performance; (ii) xxx Landlord for damages
(expressly excluding consequential or punitive damages) suffered by Tenant as a
result of the Landlord Default; or (iii) in certain circumstances and in
accordance with the terms and conditions set forth in Section 40(B) below, cure
the Landlord Default and seek expedited recovery of all costs and expenses
incurred by Tenant in effecting such cure.
(B) If
Landlord defaults in the performance of any of its obligations under this Lease
and such default remains uncured beyond the time periods set forth in Section
40(A) above, Tenant may cure such default if, and only if, all of the following
conditions exist ("Self Help Conditions"): (1) Landlord has failed to cure the
Landlord default within the applicable notice and cure periods set forth above;
(2) prior to curing the default, Tenant provides Landlord with advance written
notice (or oral notice in the event of an emergency) of the fact that Tenant
intends to cure the default on Landlord's behalf; (3) if there is a mortgage on
the Building, Tenant has complied with the terms of any subordination,
non-disturbance and attornment agreement (or similar agreement) between Tenant
and such mortgagee; (4) the action required to cure the default does not require
Tenant to have access to the premises of any other tenant or occupant of the
Building; and (5) the action required to cure the default does not involve the
performance of work with respect to any of the following: (i) the structural
integrity of the Building; or (ii) the heating, ventilating or air-conditioning
systems of the Building; or (iii) the main (as opposed to lines, ducts and
distribution channels located within the Leased Premises) electrical, exhaust,
mechanical, plumbing, life safety, telecommunications, or security systems of
the Building; or (iv) the Escalators or Tenant's Dedicated Elevator; or (v) the
Ornamental Surfaces of the Grand Banking Hall. If any Landlord
Default occurs and the Self Help Conditions set forth in (1) through (5) above
do not exist, Tenant shall have no right to perform any curative
work. In attempting to cure any default by Landlord, Tenant shall use
commercially reasonable efforts to pursue the least expensive commercially
reasonable course of action that can reasonably be expected to cure the default
in question and, to the extent reasonably apparent to Tenant at such time, shall
perform only so much work as is reasonably necessary to cure the
default. Tenant, in accordance with Tenant's indemnification
obligations under this Lease, shall indemnify, defend and hold harmless Landlord
and the Landlord Parties for any and all direct, out-of-pocket and reasonable
liabilities, obligations, damages, penalties, claims, actions, charges and
expenses arising from Tenant's negligence or willful misconduct in connection
with the performance of such work, including any claims requiring defense by
Landlord of tenants or occupants of the Building that are adversely affected by
Tenant's performance of such work. Upon completion of the curative
work by Tenant, Tenant shall submit to Landlord all invoices, receipts and other
documentation evidencing the costs and expenses incurred by Tenant in curing
such Landlord Default ("Cure Costs"). Within fifteen (15) days after
Landlord's receipt of such documentation, Landlord shall elect to either: (i)
reimburse Tenant for all Cure Costs; or (ii) deliver written notice to Tenant
(the "Disapproval Notice") objecting to such Cure Costs and stating the specific
reason(s) for such objection (i.e. the documentation does not support the amount
of the Cure Costs, the Self Help Conditions did not exist, the default cured by
Tenant was not a Landlord Default under this Lease) (collectively, the
"Disapproved Conditions"). If Landlord delivers the Disapproval
Notice and Landlord and Tenant are unable to agree on the Disapproved Conditions
within five (5) business days thereafter, the matter shall be submitted to
expedited arbitration in accordance with Article 41 set forth
below. If Landlord neither completes item (i) nor item (ii) within
such fifteen (15) day period as set forth above, Landlord shall be deemed to
have elected item (ii), and, in such event, the matter shall be submitted to
expedited binding arbitration in accordance with Article 41 of this
Lease. The arbitrator's determination shall be final and binding on
the parties and the non-prevailing party shall pay for all costs and expenses
associated with such arbitration.
41. ARBITRATION
OF DISPUTES. Landlord and Tenant hereby acknowledge and agree
that the following arbitration provision shall not be binding on Landlord or
Tenant in the event of any dispute under this Lease, unless such dispute is
pursuant to Article 40 hereof; however, in the event Landlord transfers or
assigns its interest in this Lease or otherwise sells or transfers the Property,
this Article 41 shall be binding on Landlord's successor-in-interest (expressly
excluding Landlord's Mortgagee or any affiliate of Landlord) and Tenant for any
and all disputes under this Lease.
NOTWITHSTANDING
ANYTHING CONTAINED HEREIN TO THE CONTRARY, ANY CONTROVERSY, DISPUTE, OR CLAIM
WHATSOEVER ARISING OUT OF, IN CONNECTION WITH, OR IN RELATION TO THE
INTERPRETATION, PERFORMANCE OR BREACH OF ANY OF THE PROVISIONS OF THIS LEASE,
INCLUDING, WITHOUT LIMITATION, THE VALIDITY, SCOPE AND ENFORCEABILITY OF THIS
ARBITRATION PROVISION, SHALL BE SETTLED, AT THE REQUEST OF ANY PARTY, BY
EXPEDITED BINDING ARBITRATION CONDUCTED IN XXXX COUNTY, ILLINOIS, IN ACCORDANCE
WITH THE THEN EXISTING RULES FOR COMMERCIAL ARBITRATION OF THE AMERICAN
ARBITRATION ASSOCIATION, AND JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR
MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION
THEREOF. THE PARTIES EXPRESSLY AGREE THAT SUCH MATTERS SHALL BE
SUBMITTED TO ONE (1) ARBITRATOR WHO SHALL BE A RETIRED JUDGE OF THE CIRCUIT
COURT OF XXXX COUNTY, ILLINOIS. IF THE PARTIES CANNOT AGREE UPON AN
ARBITRATOR, ONE SHALL BE APPOINTED BY THE CHIEF JUDGE OF THE CIRCUIT COURT OF
XXXX COUNTY, ILLINOIS FROM AMONG THAT COURT’S LIST OF RETIRED JUDGES OF SUCH
COURT. IT IS INTENDED THAT THIS ARBITRATION PROVISION BE VALID AND
ENFORCEABLE.
42. GUARANTY
AND SNDA CONTINGENCY.
This Lease shall not be deemed
effective or binding upon Landlord or Tenant until: (A) Private Bancorp, Inc.,
an Illinois corporation ("Guarantor") executes and delivers to Landlord a
guaranty in the form attached hereto as Exhibit P (the "Guaranty");
and (B) Landlord and AXA EQUITABLE LIFE INSURANCE COMPANY, the Mortgagee,
execute and deliver the SNDA in the form attached hereto as Exhibit H to
Tenant.
[EXECUTION
PAGE FOLLOWS]
IN WITNESS WHEREOF, Landlord
and Tenant have executed this Lease as of the date and year first above
written.
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LANDLORD:
TR 120 X. XXXXXXX CORP.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Its:President
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TENANT:
THE PRIVATEBANK AND TRUST
COMPANY, an Illinois chartered bank
By:
/s/ C. Xxxxx Xxxxxx
Name:
C. Xxxxx Xxxxxx
Its:
Managing Director
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