EXHIBIT 10.10
TWO FIRST NATIONAL PLAZA
LEASE
LANDLORD:
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
AS TRUSTEE UNDER TRUST AGREEMENT DATED
OCTOBER 1, 1988 AND KNOWN AS TRUST NO. 106528-08
TENANT:
AMERICAN SCHOOLS OF PROFESSIONAL PSYCHOLOGY, INC.
LEASE
TWO FIRST NATIONAL PLAZA
PAGE
SCHEDULE............................................................. 1
1. LEASING AGREEMENT............................................ 3
2. RENT......................................................... 3
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION
AND RETURN................................................... 10
4. BUILDING SERVICES............................................ 10
5. ALTERATIONS AND REPAIRS...................................... 13
6. USES OF DEMISED PREMISES..................................... 14
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS.................. 15
8. CLAIMS; INSURANCE; LIABILITY................................. 15
9. FIRE AND OTHER CASUALTY...................................... 17
10. RIGHTS RESERVED TO THE LANDLORD.............................. 18
11. DEFAULT AND LANDLORD'S REMEDIES.............................. 21
12. HOLDOVER..................................................... 24
13. SUBORDINATION TO MORTGAGES, TRUST DEEDS AND
GROUND LEASES................................................ 25
14. ASSIGNMENT AND SUBLETTING BY TENANT.......................... 26
15. SALE BY LANDLORD............................................. 28
16. ESTOPPEL CERTIFICATE......................................... 28
17. SECURITY DEPOSIT............................................. 29
18. EXCUSE OF LANDLORD'S INABILITY TO PERFORM.................... 29
19 PERSONAL PROPERTY............................................ 29
i
20. NOTICES..................................................... 30
21. QUIET POSSESSION............................................ 30
22. REAL ESTATE BROKER.......................................... 30
23. CONDEMNATION................................................ 31
24. NAME OF BUILDING............................................ 31
25. AGENT FOR SERVICE OF PROCESS................................ 31
26. TELEPHONE RISER CABLES...................................... 32
27. HAZARDOUS SUBSTANCES........................................ 33
28. MISCELLANEOUS............................................... 5
APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - CLEANING SCHEDULE
APPENDIX C - RULES AND REGULATIONS
APPENDIX D - WORK LETTER AGREEMENT
APPENDIX E - FORM OF LETTER OF CREDIT
APPENDIX F - LANDLORD'S ASBESTOS ABATEMENT WORK
APPENDIX G - TENANT'S SIGN
APPENDIX H - EXAMPLE OF AMORTIZATION SCHEDULE FOR CONSTRUCTION LOAN
APPENDIX I - TENANT'S SPACE PLAN
RIDER
ii
TWO FIRST NATIONAL PLAZA
------------------------
LEASE
-----
THIS LEASE (this "Lease") is made this 8th day of September, 1994
between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not personally but
as Trustee under a Trust Agreement, dated October 1, 1988, and known as Trust
No. 106528-08 (hereinafter referred to as "Landlord"), and the tenant named in
Item 1 of the Schedule (hereinafter referred to as "Tenant"). The term
"Building" when used herein refers to the land and building complex currently
known as "Two First National Plaza" situated at 00 Xxxxx Xxxxx Xxxxxx in
Chicago, Xxxx County, Illinois. The term "Premises" or "demised premises" when
used herein refers to that part of the Building leased to Tenant pursuant to
this Lease.
The following Schedule (the "Schedule") is an integral part of this
Lease.
SCHEDULE
--------
1. Name of Tenant: American Schools of Professional Psychology, Inc., an
Illinois corporation
2. Floor(s) or room(s) of Premises:....................................................See Section 1 of Rider
3. Rentable square feet of Premises:...................................................................31,726
4. Tenant's use of Premises:...........................................................See Section 6 of Rider
5. Annual Base Rent: ..................................................................See Section 2 of Rider
6 Annual Base Rent per rentable square foot of Premises:..............................See Section 2 of Rider
7. Monthly Installments of Base Rent: .................................................See Section 2 of Rider
8. Tenant's Operating Proportionate Share: ............................................................9.0507%
9. Tenant's Tax Proportionate Share: ..................................................................9.0507%
10. Index Rent Percentage: .....................................................................Not Applicable
11. Security Deposit: $675,000.00, subject to adjustment pursuant to Section 17 hereof
12. Tenant's address for notice before
possession date: 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxx
13. Tenant's Real Estate Broker used for
this Lease:........................................................................Xxxxxx X. Xxxxxxx, Inc.
14. Commencement Date:............................................................ March 26, 1995
15. Termination Date:............................................................. April 30, 2005
2
1. LEASING AGREEMENT. Landlord leases to Tenant, and Tenant leases from
-----------------
Landlord, the Premises outlined on the plan attached hereto and made a part
hereof as Appendix A and described on the Schedule, for the term set forth on
the Schedule unless sooner terminated or extended. In consideration whereof,
Landlord and Tenant covenant and agree as follows:
2. RENT.
----
A. Kinds. Tenant agrees to pay rent to Landlord at the office of the
-----
Building or at such other place as Landlord designates as hereinafter provided:
(1) Base Rent to be paid in monthly installments in advance on or
---------
before the first day of each month of the term of this Lease in the amount
set forth on the Schedule.
(2) Operating Adjustment Rent to cover the Tenant's Operating
-------------------------
Proportionate Share of Operating Costs for each Fiscal Year falling within
the term of this Lease. Tenant's Operating Adjustment Rent shall be equal
to the product of Tenant's Operating Proportionate Share multiplied by the
Operating Costs for such Fiscal Year. Operating Adjustment Rent shall be
paid monthly in advance in an estimated amount, as adjusted by Landlord
from time to time. Definitions of Fiscal Year, Operating Costs, Tenant's
Operating Proportionate Share and the method for billing and payment of
Operating Adjustment Rent are set forth in Paragraphs 2B and 2D.
(3) Tax Adjustment Rent to cover the Tenant's Tax Proportionate Share
-------------------
of Taxes for each Fiscal Year falling within the term of this Lease.
Tenant's Tax Adjustment Rent shall be equal to the product of Tenant's Tax
Proportionate Share multiplied by the Taxes for such Fiscal Year. Tax
Adjustment Rent shall be paid monthly in advance in an estimated amount, as
adjusted by Landlord from time to time. Definitions of Fiscal Year, Taxes,
Tenant's Tax Proportionate Share and the method for billing and payment of
Tax Adjustment Rent are set forth in Paragraphs 2B and 2D.
(4) Additional Rent consisting of all of the sums, liabilities,
---------------
obligations and other amounts (excepting Base Rent, Operating Adjustment
Rent, and Tax Adjustment Rent) which Tenant is required to pay or discharge
pursuant to this Lease, together with interest for late payment thereon,
all as hereinafter provided.
B. Payment of Adjustment Rent.
--------------------------
(1) Payment of Estimated Operating Adjustment Rent and Tax Adjustment
-----------------------------------------------------------------
Rent. Landlord shall estimate the Operating Costs and Taxes of the Building
----
from time to time each Fiscal Year. Such estimates may be revised by
Landlord whenever it obtains information relevant to making such estimates
more accurate. Such estimates will generally (but need not) be issued
after the beginning of a Fiscal Year and revised upon the determination of
the final real estate tax assessment or final real estate tax rate for the
Building.
If Landlord's estimate of Operating Costs in any Fiscal Year reflects
an increase in the Operating Costs for such Fiscal Year, upon notice from
Landlord and within ten days (10)
3
after such notice, Tenant shall pay Landlord one-twelfth (1/12th) of
Tenant's Operating Proportionate Share of such estimated increase in such
costs for each month in such Fiscal Year to date of such payment minus
payments of estimated Operating Adjustment Rent previously paid for said
period. Thereafter on the first day of each month, Tenant shall pay
monthly until a new estimate of rent is applicable, one-twelfth (1/12th) of
Tenant's Operating Proportionate Share of the estimated increase in such
costs.
If Landlord's estimate of Taxes in any Fiscal Year reflects an
increase in the Taxes for such Fiscal Year, upon notice from Landlord and
within ten (10) days after such notice, Tenant shall pay Landlord one-
twelfth (1/12th) of Tenant's Tax Proportionate Share of such estimated
increase in such costs for each month in such Fiscal Year to date of such
payment minus payments of estimated Tax Adjustment Rent previously paid for
said period. Thereafter on the first day of each month, Tenant shall pay
monthly until a new estimate of rent is applicable, one-twelfth (1/12th) of
Tenant's Tax Proportionate Share of the estimated increase in such costs.
(2) Correction of Operating Adjustment Rent. Following the end of
---------------------------------------
each Fiscal Year, Landlord shall deliver to Tenant a report setting forth
the actual Operating Costs for such Fiscal Year and a statement of the
amount of Operating Adjustment Rent that Tenant has paid and is payable for
such Fiscal Year. On or before thirty (30) days after receipt of such
report, Tenant shall pay to Landlord the amount of Operating Adjustment
Rent due for such Fiscal Year (or a portion thereof if this Lease was not
in effect for the entire Fiscal Year) minus any payments made by Tenant for
such Fiscal Year. If Tenant's estimated payments of Operating Adjustment
Rent exceed the amount due Landlord for such Fiscal Year, Landlord shall
either refund any such amount to Tenant or apply any such amount as a
credit against Tenant's other obligations under this Lease.
(3) Correction of Tax Adjustment Rent. Following the end of each
---------------------------------
Fiscal Year, Landlord shall deliver to Tenant a report setting forth the
actual Taxes for such Fiscal Year and a statement of the amount of Tax
Adjustment Rent that Tenant has paid is payable for such Fiscal Year. On
or before thirty (30) days after receipt of such report, Tenant shall pay
to Landlord the amount of Tax Adjustment Rent due for such Fiscal Year (or
a portion thereof if this Lease was not in effect for the entire Fiscal
Year) minus any payments made for such Fiscal Year. If Tenant's estimated
payments of Tax Adjustment Rent exceed the amount due Landlord for such
Fiscal Year, Landlord shall either refund any such amount to Tenant or
apply any such amount as a credit against Tenant's other obligations under
this Lease.
D. Definitions.
-----------
(1) Taxes. "Taxes" shall mean any taxes levied upon the Building
-----
based upon the ownership, leasing, renting or operation of the Building.
Taxes include, without limitation, real estate taxes, personal property
taxes, sewer rents, water rents, assessments (special or otherwise),
transit taxes, any tax or excise on rent or any other tax (however
described) on account of rental received for use and occupancy of any or
all of the Building, whether any such taxes are imposed by the United
States, the State of Illinois, the county in which the
4
Building is located or any local governmental municipality, authority or
agency, or any other political subdivision of any thereof. Taxes shall also
include all reasonable costs and expenses (including, without limitation,
legal fees and court costs) charged for the protest or the reduction of any
of the aforesaid taxes, whether such protest or reduction is ultimately
successful or not. If at any time during the term hereof, a tax or excise
on rents or income or other tax however described (herein called "Rent
Tax") is levied or assessed by the State of Illinois, or any political
subdivision thereof, on account of the rents hereunder or the interest of
Landlord (or Landlord's beneficiaries) under this Lease, and if such Rent
Tax is in lieu of or as substitute for, in whole or in part, real estate
taxes or other ad valorem taxes, such Rent Tax shall constitute and be
----------
included in Taxes, provided further, in no event shall Tenant be obligated
(a) to pay for any year any greater amount by way of such Rent Tax than
would have been payable by Tenant had the rentals paid to Landlord under
all Building leases (being the rentals upon which such taxes are imposed)
been the sole taxable income of Landlord (or Landlord's beneficiaries) for
the year in question or (b) to pay or to reimburse Landlord for any tax of
any kind assessed against Landlord (or Landlord's beneficiaries) on account
of any such Rent Tax having been reimbursed.
For the purpose of determining Taxes for any given Fiscal Year the
amount to be included for such Fiscal Year (a) from special assessments
payable in installments shall be the amount of the installments (and any
interest) due and payable during such Fiscal Year, (b) from all other Taxes
shall be the amount accrued, assessed or otherwise imposed for such Fiscal
Year without regard to when any such Taxes are payable, and (c) from any
adjustment to any Taxes by the taxing authority, when such adjustment has
resulted in a corresponding adjustment payment by or to Landlord, shall
constitute an adjustment to Taxes for the Fiscal Year during which such
adjustment is made or received by Landlord, as the case may be.
Taxes shall not include any net income, capital, stock, succession,
transfer, franchise, gift, estate or inheritance taxes.
(2) Operating Costs. "Operating Costs" shall mean any expenses, costs
---------------
and disbursements (other than Taxes) incurred by Landlord in connection
with the management, maintenance, operation and repair of all or any part
of the Building adjusted for vacancy as hereinafter provided. Operating
Costs shall not include (a) costs of alterations of tenant premises; (b)
costs of capital improvements (except as provided below); (c) depreciation
(except as provided below); (d) interest and principal payments on
mortgages (except interest on the cost of any capital improvements which
may be included in the definition of Operating Costs as hereinafter
provided) or any rental payments on any ground or other underlying leases
subject to which Landlord holds its interest in the Building (hereinafter,
referred to individually as a "ground lease" and collectively as "ground
leases"), and other debt costs, if any; (e) real estate brokers' leasing
commissions or compensations; (f) any cost or expenditure (or portion
thereof) for which Landlord is reimbursed, whether by insurance proceeds or
otherwise (Operating Adjustment Rent, and Tax Adjustment Rent, provided for
in any tenant leases are not reimbursements); (g) the cost of any kind of
service furnished to any other occupant of the Building which Landlord does
not make available to Tenant hereunder; (h) salaries and fringe benefits of
personnel above the level of Building Manager; (i) costs for after hours
HVAC service billed to other tenants of the Building; and (j) costs related
to the
5
parking garage located adjacent to the Building. "Operating Costs" shall
include the amortization, at a market rate of interest as determined by
Landlord, of the costs of capital improvements (i) made for the purpose of
saving labor or otherwise reducing applicable Operating Costs or (ii) made
or installed pursuant to governmental requirement or insurance
requirements. The costs of capital improvements described in clause (i)
above shall be amortized over a period, as determined by Landlord in
accordance with generally accepted accounting principles equal to the
quotient obtained by dividing the costs of such capital improvements
divided by the annual costs savings generated by such capital improvements.
The costs of capital improvements described in clause (ii) above shall be
amortized over the reasonable useful life of such capital improvements.
"Operating Costs" shall also include, without limitation, any costs and
expenses incurred by Landlord in connection with the operation, maintenance
or repair of the pedestrian tunnels lying between the Building and the
property commonly known as "ONE FIRST NATIONAL PLAZA" including, without
limitation, any license or permit fee required by the City of Chicago or
any other governmental authority with respect to such tunnels.
If during all or any portion of any Fiscal Year the Building is not
fully rented and occupied, Landlord may elect to make an appropriate
adjustment of Operating Costs for such Fiscal Year, employing sound
accounting and management principles, to determine the Operating Costs that
would have been paid or incurred by Landlord had the Building been fully
rented and occupied for the entire Fiscal Year and the amount so determined
shall be deemed to have been the Operating Costs for such Fiscal Year.
Notwithstanding anything contained herein to the contrary, (a) the
provisions of this paragraph with respect to adjustment of Operating Costs
for vacancy shall apply only to Operating Costs which are variable and
which increase as occupancy in the Building increases and shall not apply
to any Operating Costs which do not vary with the amount of occupancy in
the Building and (b) no adjustment to Operating Costs pursuant to this
paragraph shall result in profit for Landlord.
Landlord maintains its records on an accrual accounting basis rather
than a cash accounting basis for Operating Cost purposes, and therefore
Operating Costs shall be deemed to have been paid when such expenses have
accrued. Any adjustment of an item of Operating Costs included in a
particular Fiscal Year which results in a corresponding adjustment payment
by or to Landlord shall constitute an adjustment to Operating Costs during
the Fiscal Year when such adjustment is made.
(4) Fiscal Year. "Fiscal Year" means each twelve (12) month period
-----------
(or portion thereof) which Landlord may from time to time select as the
fiscal year of the Building.
(5) Tenant's Operating Proportionate Share. "Tenant's Operating
--------------------------------------
Proportionate Share" shall mean the percentage set forth as Item 8 on the
Schedule.
(6) Tenant's Tax Proportionate Share. "Tenant's Tax Proportionate
--------------------------------
Share" shall mean the percentage set forth as Item 9 on the Schedule.
E. Rules of Interpretation and Computation
of Base Rent and Rent Adjustments.
---------------------------------
6
(1) If this Lease commences or ends on other than the first day or
last day of a month, respectively, the rent for the month in which this
Lease so begins or ends shall be prorated. The rent due for any such month
shall be a sum equal to the total of the Base Rent, Operating Adjustment
Rent and Tax Adjustment Rent payable for a full month multiplied by a
fraction, the numerator of which is the number of days in the month in
which the Lease was in effect and the denominator of which is the total
number of days in the month. With respect to any Fiscal Year which does
not fall entirely within the term of this Lease, Tenant shall only be
obligated to pay a prorata share of Operating Adjustment Rent and Tax
Adjustment Rent based upon the number of days of the term of this Lease
falling within such Fiscal Year.
(2) All rent shall be paid to Landlord without abatement, deduction or
offset of any kind at the office of Landlord in the Building or to such
other person or place as Landlord may from time to time designate in
writing. The covenants to pay rent shall be independent of any other
covenant.
(3) Any sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until the date paid at the annual rate of two
(2) percentage points above the rate then most recently announced by
Citibank, N.A., New York, New York, or its successor, as its corporate base
lending rate, as such corporate base lending rate may change from time to
time during this Lease. The payment of such interest shall not excuse or
cure any default of Tenant under this Lease.
(4) If Tenant is in Default of any of its non-monetary obligations
under this Lease or in default of any of its monetary obligations under
this Lease, Tenant shall not be entitled to any refund of any sum which may
otherwise be due it by application of any provision of this Lease until any
and all Tenant's defaults of this Lease are cured by Tenant.
(5) If changes are made to this Lease or the Building changing the
number of rentable square feet contained in the Premises or in the
Building, Tenant's Operating Proportionate Share and Tenant's Tax
Proportionate Share shall be appropriately adjusted and the computations of
rent shall be appropriately adjusted so as to take into account the
different Tenant's Operating Proportionate Share figures and different
Tenant's Tax Proportionate Share figures applicable during each portion of
such Fiscal Year.
(6) The annual statement of actual Operating Costs and Taxes to be
furnished by Landlord under this Section 2 shall be prepared in accordance
with generally accepted accounting principles consistently applied.
Failure by Landlord to submit such a statement shall not prejudice
Landlord's right to collect any Rent that is due. In the event of any
dispute as to any Operating Adjustment Rent or Tax Adjustment Rent, Tenant
shall have the right to inspect Landlord's accounting records relative to
Operating Costs and Taxes at Landlord's accounting office during normal
business hours at any time within sixty (60) days following the furnishing
by Landlord to Tenant of such statement. Unless Tenant shall take written
exception of any item in any such statement within such sixty (60) day
period, such statement shall be considered as final and accepted by Tenant.
7
(7) In the event of the termination of this Lease by expiration of
the stated term or for any other cause or reason whatsoever prior to the
determination of Operating Adjustment Rent, Tax Adjustment Rent and
Additional Rent, Tenant's agreement to pay any such sums shall survive
termination of the Lease and Tenant shall pay any amount due to Landlord
within fifteen (15) days after being billed therefor. In the event of the
termination of this Lease by expiration of the stated term or for any other
cause or reason whatsoever, except default by Tenant of any of the terms or
provisions of this Lease, prior to the determination of Operating
Adjustment Rent, or Tax Adjustment Rent, as hereinabove set forth,
Landlord's agreement to refund any excess Tenant's estimates paid by Tenant
over the Operating Adjustment Rent, or Tax Adjustment Rent, up to the time
of termination shall survive termination of the Lease and Landlord shall
pay the amount due to Tenant within fifteen (15) days of Landlord's
determination of such amount.
(8) No adjustment to Operating Adjustment Rent or Tax Adjustment Rent
by virtue of the operation of the rent adjustment provisions under this
Section 2, shall result in the payment by Tenant in any Fiscal Year of less
than the Base Rent shown on the Schedule.
3. PREPARATION AND CONDITION OF PREMISES, POSSESSION AND RETURN. Except
------------------------------------------------------------
to the extent set forth in the Work Letter, if any, attached hereto and made a
part hereof as Appendix D (the "Work Letter"), Landlord is leasing the Premises
"as is" without any representations or warranties, and Tenant hereby
acknowledges that except to the extent set forth in the Work Letter, it is
leasing the Premises "as is" without representation or warranty. If so
indicated in the Work Letter, Landlord shall cause the premises to be completed
in accordance with the plans, specifications, and agreements and on the terms,
conditions and provisions as provided. However, the failure of Landlord to
deliver possession of the Premises on the date set forth in Item 14 of the
Schedule as the Commencement Date shall not subject Landlord to any liability or
otherwise affect the validity of this Lease or the obligations of Tenant
hereunder. Possession by Tenant before completion of said work by Landlord
shall not relieve Landlord from completing or causing the completion of said
work in accordance with the requirements of this Lease.
During the term of this Lease, Tenant shall maintain the Premises in as
good condition as when Tenant took possession, or as when completed after
possession (loss or damage caused by action of the elements, Acts of God and the
public enemy, ordinary wear and fire and other casualty insured against by
Landlord excepted), failing which Landlord may but need not restore the Premises
to such good condition and Tenant shall pay the cost thereof. At the
termination of this Lease or at the termination of Tenant's right to possession
without termination of this Lease, Tenant shall return the Premises to Landlord
in good condition as described in the sentence next above and subject to
provisions of Section 5D of this Lease.
4. BUILDING SERVICES.
-----------------
A. Landlord agrees to furnish to the Tenant without charge except for
electricity for lights and outlets and as otherwise specifically provided
herein, as follows:
(1) Heat. During reasonable hours (8:00 a.m. to 6:00 p.m. Monday
----
through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays) of generally
recognized business days, as
8
reasonably determined by Landlord, for comfortable occupancy of the demised
premises by Tenant; Tenant agrees to keep and cause to be kept closed all
windows in the demised premises and at all times to cooperate fully with
the Landlord in the operation of the heating system and to abide by all
reasonable regulations and requirements which Landlord may prescribe to
permit the proper functioning and protection of the heating system.
Landlord reserves the right to stop the heating system when necessary by
reason of accident or emergency or for repairs, alterations, replacements
or improvements, which in the judgment of the Landlord are desirable or
necessary, until said repairs, alterations, replacements or improvements
shall have been completed. Landlord shall have no responsibility or
liability for failure to supply heating when prevented from so doing by any
cause beyond Landlord's reasonable control or by laws, orders or
regulations of any Federal, State, County or Municipal authorities and
Tenant shall be entitled to no diminution or abatement of rent by reason of
the stoppage of such heating for any of the aforesaid reasons whatsoever
nor shall the same in any way affect the obligation of Tenant to perform
and fulfill its covenants under this Lease. Landlord agrees to make any
repairs to the heating system promptly and with due diligence.
(2) Air Conditioning. Landlord shall operate an air conditioning
----------------
system in the Premises on generally recognized business days during
generally recognized business hours (8:00 a.m. to 6:00 p.m. on Monday
through Friday and 8:00 a.m. to 1:00 p.m. on Saturdays) in accordance with
rules and regulations promulgated by Landlord, as may, in Landlord's
judgment, be reasonably required for comfortable occupancy of the demised
premises by Tenant. Tenant agrees to keep and cause to be kept closed all
windows in the demised premises and at all times to cooperate fully with
the Landlord in the operation of said system and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the
proper functioning and protection of the air conditioning systems.
Landlord reserves the right to stop the air conditioning systems when
necessary by reason of accident or emergency or for repairs, alterations,
replacements or improvements, which in the judgment of the Landlord are
desirable or necessary, until said repairs, alterations, replacements or
improvements shall have been completed. Landlord shall have no
responsibility or liability for failure to supply air conditioning during
said period mentioned just above or when prevented from so doing by any
cause beyond Landlord's reasonable control or by laws, orders or
regulations of any Federal, State, County or Municipal authorities and
Tenant shall be entitled to no diminution or abatement of rent by reason of
the stoppage of such air cooling or conditioning for any of the aforesaid
reasons whatsoever nor shall the same in any way affect the obligation of
Tenant to perform and fulfill its covenants under this Lease. Landlord
agrees to make any repairs to the air conditioning system promptly and with
due diligence.
Tenant acknowledges that the air conditioning system for the Building
was designed to heat, ventilate and cool space used for office purposes.
As a consequence of Tenant's use of the Premises for a school, Tenant
acknowledges that Tenant shall be required, at its sole cost and expense,
to install a supplemental heating, ventilating and air conditioning unit in
the Building to service the Premises (the "Supplemental HVAC System"),
------------------------
which Supplemental HVAC System shall be approved by Landlord. The
Supplemental HVAC System shall be installed by Tenant concurrently with the
tenant improvement work described in the Work
9
Letter Agreement attached hereto as Appendix D. Tenant shall be responsible
for the cost of installation, maintenance, repair and replacement of the
Supplemental HVAC System and all utilities used in connection therewith.
Tenant acknowledges that as a consequence of Tenant's use of the
Premises for purposes other than office uses, the Building's HVAC system
may not be adequate to supply the heating, ventilating and air conditioning
necessary for comfortable occupancy of the Premises during the hours and on
the days specified in Sections 4(A)(1) and (2). Therefore, Tenant agrees
to operate the Supplemental HVAC System whenever necessary for the
comfortable occupancy of the Premises or whenever such supplemental
heating, ventilating and air conditioning is necessary in order for the
Premises to be occupied in compliance with applicable laws.
(4) Elevators. Landlord shall furnish passenger elevator service and,
---------
subject to scheduling by the Landlord, freight elevator service both in
common with other tenants. Elevator service may be by nonattended
automatic elevators or elevators with attendants at the option of Landlord.
(5) Water. Landlord shall furnish water from the City of Chicago
-----
mains for drinking, lavatory and toilet purposes as customary for office
use.
(6) Janitorial Service. Landlord shall furnish janitorial and
------------------
cleaning services as set forth in Appendix B.
B. Electricity. Tenant acknowledges that electricity for the Premises is
-----------
separately metered and will be provided directly by the applicable utility
company. Tenant shall pay for all electricity costs directly to the applicable
utility company, including, without limitation, any electricity required (1)
during janitorial service to the Premises, (2) during alterations or repairs to
the Premises, (3) for the operation of its office machinery and equipment or (4)
for any special air conditioning or ventilating system.
C. Interruptions of Services. Interruptions of any service to be
-------------------------
provided by Landlord hereunder or of any utility or other service to the
Building or the Premises, in whole or in part caused by repairs, renewals,
improvements, changes of service, alterations, accidents, acts of God or any
enemy, strikes, lockouts, labor controversies, insurrections, picketing (whether
legal or illegal), laws, orders or regulations of any federal, state, county or
municipal authorities, accidents or casualties whatsoever, inability of Landlord
to obtain electricity, fuel, water, supplies, or by the act or default of Tenant
or any person other than Landlord, or by any other cause or causes beyond the
reasonable control of Landlord, shall not be deemed an eviction or disturbance
of Tenant's use and possession of the Premises or any part thereof, or render
Landlord liable for damages by abatement or reduction of rent or otherwise
relieve Tenant from performance of Tenant's obligations under this Lease.
Notwithstanding the foregoing, in the event (a) any interruption of a service to
be provided by Landlord hereunder occurs (other than pursuant to a casualty to
the Building or the Premises, as to which Section 9 of this Lease shall apply)
which renders the Premises untenantable, and (b) such interruption of service is
caused by the gross negligence or wilful misconduct of Landlord, and (c)
10
such interruption of service continues for a period of five (5) consecutive days
after Landlord receives actual notice thereof from Tenant or from any other
party, then Tenant's obligation to pay Rent shall be abated for the period
commencing on the expiration of said five (5) day period and ending on the date
the Premises are rendered tenantable.
5. ALTERATIONS AND REPAIRS.
-----------------------
A. Tenant shall not, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, permit any alteration, improvement,
addition or installation in or to the Premises (all of which is collectively
referred to as "Work"), including installation of telephone, computer or
internal sound or paging systems or other similar systems, or the performance of
any decorating, painting and other similar work in the Premises.
Notwithstanding the foregoing, Landlord's consent shall not be required in the
event Tenant desires to perform work in any portion of the Premises located on
the Floor 2 or Floor 3 of the Building which Work is decorative, non-structural,
does not affect the Building's systems, does not require a building permit and
does not exceed Ten Thousand and No/100 Dollars ($10,000.00) in costs, subject
to the following conditions: (i) Tenant shall notify Landlord in writing of the
location and the nature of such Work at least five (5) business days prior to
the start of such Work; (ii) Landlord shall have right, within such five (5)
business day period, to require Tenant to modify the proposed Work so as to not
cause a building code violation or interfere with the structure or mechanical
systems of the Building; and (iii) Landlord shall have the right to approve the
proposed contractors and subcontractors, if any. Tenant agrees that any Work of
any nature affecting Floor 1 or the Mezzanine of the Building shall require the
approval of Landlord. In no event shall Tenant or any of its contractors or
employees perform any work which would penetrate, damage or alter any of the
granite surfaces located in the Premises without Landlord's prior written
consent. In the event Landlord consents to any Work, Landlord reserves the
right cause such Work to be performed by contractors and subcontractors approved
by Landlord and Tenant, in which event Tenant shall pay the cost of preparation
of the plans, permits, the fees of said contractors and subcontractors. Before
commencement of any Work or delivery of any materials into the Premises or the
Building, Tenant shall furnish to Landlord, for its prior written approval,
architectural plans and specifications certified by a licensed architect or
engineer reasonably acceptable to Landlord, and such other documentation as
Landlord shall reasonably request. Tenant agrees to hold Landlord, its
beneficiaries and their respective agents, partners, officers, servants and
employees forever harmless against all claims and liabilities of every kind,
nature and description which may arise out of or in any way be connected with
any such Work. Tenant shall pay Landlord's reasonable out-of-pocket expenses
(including, without limitation, expenses related to Landlord's hiring of
engineers, architects and other professionals) for reviewing plans and materials
submitted to Landlord for approval. Tenant shall pay the cost of all such Work
and the cost of decorating and altering the Premises and the Building occasioned
by any such Work. Landlord shall have the right to require Tenant to deliver to
Landlord cash or other security in an amount and form acceptable to Landlord to
be held in escrow by Landlord to assure prompt payment for the cost of any such
Work.
B. In the event that Landlord permits Tenant to hire its own contractors
for the performance of any Work, then in addition to the provisions of Section
5A, the following shall apply: (i) prior to the commencement of the Work or the
delivery of any materials to the Building, Tenant shall submit to Landlord, for
Landlord's approval, copies of the contracts, names, and addresses of all
contractors, necessary permits and licenses, certificates of insurance
(including, without limitation,
11
Workmen's Compensation, comprehensive general liability and adequacy of design
insurance) and instruments of indemnification and waivers of lien against any
and all claims, costs, expenses, damages and liabilities which may arise in
connection with the Work, all in such form and amount as shall be satisfactory
to Landlord; (ii) all such Work shall be done only by union contractors or
mechanics approved by Landlord and Tenant (which approval shall not be
unreasonably withheld) and at such time and in such manner as Landlord may from
time to time designate; (iii) upon completion of any Work, Tenant shall furnish
Landlord with as-built plans, contractors' affidavits, full and final waivers of
lien, receipted bills covering all labor and materials expended and used in
connection with such Work; and (iv) all such Work shall comply with all
insurance requirements, all laws, ordinances, rules and regulations of all
governmental authorities, and all collective bargaining agreements applicable to
the Building, and shall be done in a good and workmanlike manner and with the
use of good grades of materials.
C. Tenant agrees to protect, defend and indemnify Landlord, its agents
and employees, the Premises and the Building from and against any and all
liabilities of every kind and description which may arise out of or be connected
in any way with said alterations, improvements or repairs or the like whether
performed by or under the direction of Landlord and at the cost of Tenant or
performed by Tenant unless caused by the gross negligence or wilful misconduct
of Landlord, its agents or employees. Any mechanic's lien filed against the
Premises or the Building or any notice which is received by either Landlord or
Tenant for work or materials furnished or claimed to be furnished to Tenant or
the Premises shall be released and discharged by Tenant; and, if such lien or
notice is filed it shall be released and discharged of record by Tenant, in
either case, within ten (10) days after such filing or receipt, whichever is
applicable, at Tenant's expense. If Tenant chooses to contest such claim,
notice or lien, Tenant may do so in place of causing the release and discharge
thereof provided Tenant, within said ten (10) day period, delivers to Landlord
security reasonably required by Landlord to guarantee over such claim or lien.
D. Unless otherwise provided by written agreement, all alterations,
improvements and fixtures (except trade fixtures) installed by Tenant shall be
surrendered with the Premises and shall become Landlord's property without
compensation to Tenant, except that, at Landlord's option, Tenant shall, at its
expense when surrendering the Premises or on the termination of the term of this
Lease or the termination of Tenant's right of possession, remove from the
Premises and the Building all or any of such alterations, improvements and
fixtures installed in the Premises by Tenant. Notwithstanding the foregoing
provisions of this Section 5D, Tenant may, prior to installing any alterations,
improvements or fixtures, request in writing that Landlord agree and consent
that such alterations, improvements and fixtures need not be removed by Tenant
when Tenant surrenders possession of the Premises, and, if Landlord does so
agree and consent, then Tenant shall not be required to remove the same as
provided in this Section 5D. In addition, Tenant may, prior to installing any
alterations, improvements or fixtures, request in writing that Landlord agree
and consent that such alterations, improvements and fixtures be permitted to be
removed by Tenant when Tenant surrenders possession of the Premises. Landlord
shall not unreasonably withhold its consent to such removal provided (i) such
alterations, improvements and fixtures were paid for with funds supplied by
Tenant and not by Landlord, (ii) such removal shall not permanently damage the
Premises or the Building, and (iii) Tenant promptly repairs any damage caused by
such removal, at Tenant's sole cost and expense. Furthermore, Landlord agrees
that Tenant shall not be obligated to remove
12
any of the alterations, improvements or fixtures identified on Tenant's Space
Plan attached to this Lease as Exhibit I, provided (a) Landlord reserves the
right to require Tenant to remove any toilets Tenant installs in the Premises,
and (b) Landlord reserves the right to require Tenant to remove any alterations,
improvements or fixtures made to or installed in the Premises which are beyond
the scope of the work identified in Tenant's Space Plan. Each and every removal
shall be done in a good and workmanlike manner, and upon such removal Tenant
shall restore the Premises to its condition prior to the installation of such
alterations, improvements and fixtures. If Tenant does not remove such
alterations, improvements and fixtures after request to do so by Landlord,
Landlord may remove the same and restore the Premises, and Tenant shall pay the
cost of such removal and restoration to Landlord upon demand. Tenant shall also
remove its furniture, equipment, trade fixtures and all other items of personal
property from the Premises prior to the end of the term or any extension
thereof, or of the termination of right of possession, however ended; and if
Tenant does not remove such items, Tenant shall be conclusively presumed to have
conveyed the same to Landlord under this Lease as a xxxx of sale without further
payment or credit by Landlord to Tenant, or at Landlord's sole option Landlord
may cause the items covered in this sentence to be removed and stored at the
risk and cost of Tenant. Tenant shall pay to Landlord, upon demand, any and all
reasonable expenses incurred in such removal and all reasonable storage charges
against such property so long as the same shall be in Landlord's possession or
under Landlord's control. Any such property of Tenant not removed from the
Premises or retaken from storage by Tenant within thirty (30) days after the end
of the term, however terminated or any extension thereof, at Landlord's sole
option, shall be conclusively deemed to have been forever abandoned by Tenant.
6. USES OF DEMISED PREMISES. The Premises shall be occupied and used by
------------------------
Tenant only for executive and general administrative offices directly pertaining
to the operation of Tenant's business as set forth on Item 4 of the Schedule,
and for no other purpose.
7. BUILDING RULES AND GOVERNMENTAL REGULATIONS. Tenant shall abide by
-------------------------------------------
all applicable laws or governmental regulations concerning its use of the
Premises. Tenant shall at its sole cost promptly comply with the requirements
of any board of fire underwriters or similar body relating to the condition, use
or occupancy of the Premises excluding structural changes not related to or
affected by Tenant's improvements or acts. Tenant shall also abide by all
uniform reasonable rules and regulations adopted or to be adopted by Landlord
pertaining to the operation and management of the Building. If any rules and
regulations are contrary to the terms of the Lease, the terms of this Lease
shall prevail. Present rules are contained in Appendix C. The violation of the
Building rules or the laws or regulations governing Tenant's use of the Premises
shall be a default under this Lease allowing Landlord all remedies for default
under Section 11 of this Lease. Landlord shall not be responsible to Tenant for
violation of rules or regulations or terms of this Lease by another tenant nor
shall failure to obey the same by others or lack of enforcement relieve Tenant
from its obligations to comply therewith. Landlord agrees that it will not
enforce the rules and regulations in a discriminatory manner against Tenant.
8. CLAIM; INSURANCE; LIABILITY.
---------------------------
A. To the extent not expressly prohibited by law, Tenant releases
Landlord, its beneficiaries, all mortgagees and their respective agents,
partners, officers, servants and employees, from and waives all claims for
damages to person or property sustained by Tenant or by any occupant
13
of the Premises or the Building, or by any other person, resulting directly or
indirectly from fire or other casualty, cause or any existing or future
condition, defect, matter or thing in the Premises, the Building or any part
thereof, or from any equipment or appurtenance therein, or from any accident in
or about the Building, or from any act or neglect of any tenant or other
occupant of the Building or of any other person, including agents, partners,
officers, servants and employees of Landlord and its beneficiaries. This Section
shall apply especially, but not exclusively, to damage caused by water, snow,
frost, steam, excessive heat or cold, sewerage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, falling plaster, broken
glass, sprinkling or air conditioning devices or equipment, or flooding of
basements, 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 acts specifically enumerated above, or from any other thing or circumstance,
whether of a like nature or of a wholly different nature. If any damage to the
Premises or the Building or any equipment or appurtenance therein, whether
belonging to Landlord or to other tenants in the Building, results from any act
or neglect of Tenant, its employees, agents, guests or invitees, Tenant shall be
liable therefor and Landlord may, at its option, repair such damage, and Tenant
shall upon demand by Landlord reimburse Landlord for all costs of such repairs
and damages in excess of amounts, if any, paid to Landlord under insurance
covering such damages. All personal properly belonging to Tenant or any occupant
of the Premises that is in the Premises or the Building shall be there at the
risk of Tenant or other person only and Landlord and its beneficiaries shall not
be liable for damage thereto or theft or misappropriation thereof.
B. To the extent not expressly prohibited by law, Landlord and Tenant
each (either case, the "Indemnitor") agree to hold harmless and indemnify, the
other and the other's agents, partners, shareholders, 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 reasonable attorney's
fees and expenses, for death or injury to third parties other than Indemnitees
that may arise from or be caused directly or indirectly by any negligent act of
omission or commission, or any willful misconduct of Indemnitor or any of
Indemnitor's agents, partners, or employees. Such third parties shall not be
deemed third party beneficiaries of this agreement. In case any action, suit or
proceeding is brought against any of the Indemnitees by reason of any such act
of Indemnitor or any of Indemnitor's agents or employees, then Indemnitor will,
at Indemnitor's expense and at the option of said Indemnitees, by counsel
reasonably approved by said Indemnitees, resist and defend such action, suit or
proceeding.
C. If any damage to the Building or any equipment or appurtenance
therein, whether belonging to Landlord or to other tenants in the Building,
results from any act or neglect of Tenant, its agents, employees, guests or
invitees, Tenant shall be liable therefor and Landlord may, at Landlord's option
repair such damage, and Tenant shall upon demand by Landlord, reimburse Landlord
the total cost of such repairs and damages to the Building. If Landlord elects
not to repair such damage, Tenant shall promptly repair such damages at its own
cost and in accordance with the provisions of Section 5 as if such repair
constituted Work under such Section.
D. Tenant shall procure and maintain at its own cost policies of
comprehensive general public liability and property damage insurance with
contractual liability coverage for the agreements of indemnity provided for
under this Lease and a broad form general liability endorsement to afford
protection with such limits as may be reasonably requested by Landlord from time
to time (which as
14
of the date hereof shall be not less than $2,000,000 under a combined single
limit of coverage) insuring Landlord, its beneficiaries and their respective
agents, partners, officers, servants and employees and Tenant from all claims,
demands or actions for injury to or death of any person or persons and for
damage to property made by, or on behalf of, any person or persons, firm or
corporation, arising from, related to or connected with the Premises. The
insurance shall be issued by companies and be in form and substance satisfactory
to Landlord and any mortgagee of the Building and shall, if requested by
Landlord, include any mortgagee and their respective agents and employees as
additional insureds. The aforesaid insurance policies shall provide that they
shall not be subject to cancellation except after at least thirty (30) days'
prior written notice to Landlord and all such mortgagees (unless n such
cancellation is due to non-payment of premiums, in which event ten (10) days'
prior written notice shall be required). The original insurance policies (or
certificates thereof satisfactory to Landlord), together with satisfactory
evidence of payment of the premium thereon, shall be deposited with Landlord
prior to the commencement of the term and renewals thereof not less than thirty
(30) days prior to the end of the term of each such coverage.
E. Tenant shall carry insurance of the type typically referred to as "all
risk" insurance, including water damage, insuring its interest in the tenant
improvements in the Premises and its interest in all its personal property and
trade fixtures located on or within the Building, including without limitation
its office furniture, equipment and supplies.
F. Notwithstanding any other provision of this Lease to the contrary,
Landlord and Tenant each hereby waive all rights of action against the other for
loss or damage to the Premises, or the Building and property of Landlord and
Tenant in the Building, which loss or damage is insured or is required pursuant
to this Lease to be insured by valid and collectible insurance policies to the
extent of the proceeds collected or collectible under such insurance policies,
subject to the condition that this waiver shall be effective only when the
waiver is permitted by such insurance policies or when, by the use of good faith
effort, such waiver could have been permitted in the applicable insurance
policies. The policies of insurance required to be maintained by Tenant under
the terms of this Lease shall contain waiver of subrogation clauses and form and
content satisfactory to Landlord.
G. Tenant shall not conduct or permit to be conducted by its employees,
agents, guests, invitees any activity, or place any equipment in or about the
Premises or the Building that will in any way increase the cost of fur,
insurance or other insurance on the Building. If any increase in the cost of
fire insurance or other insurance is stated by any insurance company or by the
applicable Insurance Rating Bureau, if any, to be due to any activity or
equipment of Tenant in or about the Premises or the Building, such statement
shall be conclusive evidence that the increase in such cost is due to such
activity or equipment and, as a result thereof, Tenant shall be liable for the
amount of such increase. Tenant shall reimburse Landlord for such amount upon
written demand from Landlord and any such sum shall be considered Additional
Rent payable hereunder. Tenant, at its sole expense, shall comply with any and
all requirements of any insurance organization or company necessary for the
maintenance of reasonable fire and public liability insurance covering the
Premises and the Building.
9. FIRE AND OTHER CASUALTY. If the Premises or the Building are made
-----------------------
untenantable by fire or other casualty, including damage or casualties of war,
Landlord shall, to the extent permitted by all mortgages and ground leases on
the Building, immediately take such action as is necessary to make applicable
insurance proceeds available and to use the same to reconstruct,
15
repair and restore the Building and the Premises, including the tenant
improvements, if any, paid for by Landlord pursuant to the Work Letter or, to
similar improvements located in the Premises on the date of this Lease, and, at
Landlord's option, Tenant may be permitted or required to devote the proceeds of
its insurance covering tenant improvements to cause restoration of tenant
improvements over and above those performed or paid for by Landlord pursuant to
the Work Letter or "as is," as the case may be, and pay for same to Landlord or
through Landlord as if newly done pursuant to Section 5 of this Lease. In the
event fire or other casualty occurs and both Landlord and Tenant are insured, it
is agreed that the coverage of the Landlord shall be primary and that Landlord's
recovery in no event shall be reduced by any insurance recovery to Tenant.
Notwithstanding anything in this Section 9 to the contrary, if a registered
architect selected by Landlord licensed to do business in Illinois should
certify that such work to the Premises cannot be accomplished by using standard
working methods and procedures so as to make the Premises tenantable within
twelve (12) months from the date Landlord settles in full its claim with its
insurance carrier for the Building or within two (2) months from such date if
the Lease term has less than eighteen (18) months remaining, either party shall
have the right to terminate this Lease by giving to the other notice of such
election within ten (10) days after its receipt of the architect's certificate.
Landlord shall select such registered architect within thirty (30) days after
receipt of a written request by Tenant; provided that Landlord may make such
selection without a request by Tenant if Landlord elects to do so. Landlord
shall inform Tenant of the conclusion reached by the architect promptly after
receiving a written request from Tenant. If said fire or other casualty results
in total destruction of the Building, this Lease shall automatically terminate
as of the date of said or other casualty. In case of fire or other casualty not
resulting in termination of this Lease, rent shall be abated on a per them basis
while the Premises are untenantable. If Tenant continues to conduct its business
or profession in whole or in part from a portion of the Premises after such
casualty, rent for space shall be abated pro rata with rent being charged only
for the tenantable area. In case of termination of this Lease, rent shall be
apportioned on a per diem basis and be paid to the date of the fire or other
casualty. Any provision hereof notwithstanding, Tenant's rent shall not xxxxx if
its negligence was the cause of the casualty.
10. RIGHTS RESERVED TO THE LANDLORD. Landlord reserves the following
-------------------------------
rights and Tenant accedes thereto. Specification of the rights reserved to
Landlord herein shall not exclude any right accruing to Landlord by operation of
law or reserved specifically or by inference from any provision contained in
this Lease:
(a) Name: To change the Building's name or street address.
----
(b) Signs: To install, affix and maintain any and all signs on the
-----
exterior and interior of the Building.
(c) Windows: To designate and approve, prior to installation, all
-------
types of window shades, blinds, drapes, awnings, window ventilators and
other similar equipment and to control all the internal lighting that may
be visible from the exterior of any Building.
(d) Service Contracts: To approve all sources furnishing sign
-----------------
painting and lettering, ice and drinking water, and to designate all
sources furnishing towels, toilet supplies, food service, shoe shining or
other services on the Premises, provided such services as are designated by
Landlord are reasonably competitive with rates charged therefor in the
Chicago
16
metropolitan area. No vending or dispensing machines of any kind shall be
placed in or about the Premises without prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall be permitted to install vending
machines in the Premises solely for the use of Tenant's employees and
students.
(e) Keys: To retain at all times and to use passkeys to the Premises
----
and keys to all locks within and into the Premises. No locks or bolts
shall be altered, changed or added without the prior written consent of
Landlord.
(f) Access for Repairs, etc.: To have access to the Premises without
------------------------
liability for damages to the Tenant to make repairs, alterations, additions
or improvements, whether structural or otherwise, in and about the
Premises, the Building or any part thereof as set forth in various parts of
this Lease including Section 5.
(g) Occupancy: During the last one hundred twenty (120) days of the
---------
term of this Lease, if during or prior to that time Tenant vacates the
Premises, to decorate, remodel, repair alter or otherwise prepare the
Premises for reoccupancy. Such acts of Landlord shall not relieve Tenant
of its obligations to pay rent to the termination date.
(h) Rights to Conduct Businesses: To grant to anyone the exclusive
----------------------------
right to conduct any business or render any service in the Building
provided such exclusive right shall not operate to exclude Tenant from the
use permitted by this Lease.
(i) Heavy Equipment: To approve or disapprove the weight, size or
---------------
location of safes and other heavy equipment and articles in and about the
Premises and the Building and to require all such items and furniture to be
moved into and out of the Building and the Premises only at such times and
in such manner as Landlord shall direct in writing. Movement of Tenant's
property into or out of the Building and within the Building is entirely at
the risk and responsibility of Tenant and Landlord reserves the right to
require permits before allowing any such property to be moved into or out
of the Building.
(j) Show Premises: To show the Premises to prospective tenants or
-------------
brokers during the last year of the term of this Lease or the last year of
any extension thereof to show how the Premises to representatives, agents,
officers, shareholders, directors and employees of Landlord and its
beneficiary, prospective purchasers or mortgagees at all reasonable times
provided prior notice is given to Tenant in each case and Tenant's use and
occupancy of the Premises shall not be materially inconvenienced by any
such action of Landlord.
(k) Close Building: To close the Building after regular working hours
--------------
and on legal holidays subject, however, to Tenant's right to admittance
under such regulations as Landlord may prescribe from time to time which
may include, by way of example but not of limitation, that persons entering
or leaving the Building identify themselves to a security guard by
registration or otherwise and that said persons establish their right to
enter or leave the Building.
17
(1) Substitution of Space: At any time hereafter, Landlord may change
---------------------
the part of the demised premises located on Floor 3 of the Building (the
"Floor 3 Space") to another area in the Building (herein referred to as the
"new premises") provided that:
(i) The new premises shall be similar to the Floor 3 Space in
area and use for Tenant's purposes and shall be located entirely on
one full floor with a buildout similar in configuration to the Floor 3
Space; and
(ii) Such change shall be made in order to put into the demised
premises a major tenant in the Building who then occupies or will, as
a result of such move, occupy all of at least one floor in the
Building.
if Tenant is already in occupancy of the demised premises, then in
addition:
(iii) Landlord shall pay the expenses of the Tenant for moving
from the Floor 3 Space to the new premises and for improving the new
premises so that they are substantially similar to the Floor 3 Space.
(iv) Such move shall be made during evenings, weekends, or
otherwise so as to incur the least inconvenience to Tenant;
(v) Landlord shall first give Tenant at sixty (60) days' notice
before making such change; and
(vi) Landlord will furnish a new Appendix A.
Tenant shall cooperate with Landlord in all reasonable ways to permit
the necessary action to make the changes including, by way of example only,
designating locations to move furniture and equipment, supervising moving,
of flies or fragile equipment, designating location of telephone outlets,
and listing color of paint and of flooring desired in the new premises.
(m) Use of Lock Box by Landlord: Landlord may from time to time elect
---------------------------
to designate a lock box collection agent (independent agent, bank or other
financial institution) to act as Landlord's agent for the collection of
mounts due Landlord. In such event the date of payment of rent or other
sums paid Landlord through such agent shall be the date of agent's receipt
of such payment (or the date of collection of any such sum if payment is
made in the form of a negotiable instrument thereafter dishonored upon
presentment); however, for purposes of this Lease, no such payment or
collection shall be deemed "accepted" by Landlord if Landlord issues a
check payable to the order of the Tenant in the amount sent to the lock box
and if Landlord mails the check to the Tenant addressed to the place
designated in this lease for notice to Tenant within twenty-one (21) days
after the amount sent by the Tenant is received by the lock box collection
agent or if the Landlord returns a dishonored instrument within twenty-one
(21) days of its dishonor. Return of any such sum to Tenant by so sending
such a check of the Landlord or by so sending a dishonored instrument to
the Tenant within the appropriate twenty-one (21) day period shall be
deemed to be rejection of
18
Tenant's tender of such payment for all purposes as of the date of
Landlord's lock box collection agent's receipt of such payment (or
collection). The return of Tenant's payment in the manner described in this
paragraph shall be deemed not to be a waiver of any breach by Tenant of any
term, covenant or condition of this Lease nor a waiver of any of Landlord's
rights or remedies granted in this Lease. The possession of Tenant's funds
or negotiation of Tenant's negotiable instrument by Landlord's agent or
Landlord during the applicable twenty-one (21) day period shall be deemed
not to be a waiver of any defaults of Tenant or any rights of Landlord
theretofore accrued nor shall any such possession or negotiation be
considered an acceptance of Tenant's tender.
(n) Repairs and Alterations: At any time Landlord either voluntarily
-----------------------
or pursuant to governmental requirement may, at Landlord's own expense,
make repairs, alterations or improvements in or to the Building or any part
thereof, including the Premises, and during operations may close entrances,
doors, corridors, elevators and other facilities and may have access to and
open all ceilings, without liability to Tenant by reason of interference,
inconvenience, annoyance or loss of business. Landlord shall not be liable
to Tenant for any expense, injury, loss or damage resulting to Tenant from
work done in the Building, and substantial construction activities on the
Building or upon, along, or the use of any adjacent or nearby building,
land, street, alley or way.
11. DEFAULT AND LANDLORD'S REMEDIES.
-------------------------------
A. Defaults. The occurrence of any of the following shall constitute a
--------
"Default" hereunder:
(1) If Tenant defaults in the payment of rent (whether Base Rent,
Operating Adjustment Rent, Tax Adjustment Rent or Additional Rent), or any
other sum required to be paid by this Lease (including but not limited to
repayment of the Construction Loan together with all interest thereon as
and when due as described in Appendix D attached hereto) and if the default
is not remedied within five (5) days after written notice thereof by
Landlord to Tenant;
(2) If Tenant defaults in the prompt and full performance of any term,
covenant, or provision of this Lease (except those specified in
Subparagraphs (1), (3), (4), (5), (6), (7) and (8) of this Subparagraph A
of Section 11) and if such default is not remedied within thirty (30) days
after notice thereof by the Landlord;
(3) If Tenant abandons or vacates any portion of the Premises located
on Floor 1 of the Building or the Mezzanine of the Building;
(4) If the leasehold interest of Tenant is levied upon under execution
or is attached under process of law, which levy or attachment continues for
a period of thirty (30) days;
(5) If Tenant shall generally not pay its debts as they become due or
shall admit in writing its inability to pay its debts or shall make a
general assignment for the benefit of creditors;
19
(6) If Tenant shall commence any case, proceeding or other action
seeking organization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy,
insolvency, reorganization or relief of debtors, or seeking appointment of
a receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its property;
(7) If Tenant shall take any corporate or other action to authorize
any of the actions set forth above in Subparagraphs A(5) and A(6) of this
Section 11; or
(8) If any case, proceeding or other action against Tenant shall be
commenced seeking to have an order for relief entered against it as debtor,
or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or any substantial part of its property, and such case,
proceeding or other action (i) results in the entry of an order for relief
against it which is not fully stayed within seven (7) business days after
the entry thereof or (ii) remains undismissed for a period of thirty (30)
days.
B. Landlord's Remedies.
-------------------
(1) Upon the occurrence of any one or more Defaults by Tenant,
Landlord elect may elect to terminate this Lease and Tenant's right to the
Premises or, without terminating this Lease, forthwith terminate Tenant's
right to possession of the Premises. Upon any termination of this Lease,
whether by lapse of time or otherwise, or upon any termination of Tenant's
right to possession without termination of the Lease, Tenant shall
surrender possession and vacate the Premises and deliver possession thereof
the Landlord, and Tenant hereby grants to Landlord full and free license to
enter into and upon the Premises with or without process of law in the
event of any such termination of this Lease or right to possession, and to
repossess Landlord of the Premises as of Landlord's former estate and to
expel or remove Tenant and any others who may be occupying or be within the
Premises and to remove any and all property therefrom using such force as
may be necessary without being deemed in any manner guilty of trespass,
eviction or forcible entry or detainer, and without relinquishing
Landlord's rights to rent or any other right given to Landlord hereunder or
by operation of law.
(2) If Tenant voluntarily abandons any portion of the Premises located
on Floor 1 of the Building or the Mezzanine of the Building or otherwise
entitles Landlord to elect to terminate Tenant's right to possession only
without terminating the Lease, and Landlord does so elect, Landlord may at
Landlord's option enter into the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof as in
subparagraph B(l) of this Section 11, without such entry and possession
terminating the Lease or releasing Tenant, in whole or in part, from
Tenant's obligation to pay the rent hereunder for the full term. Upon and
after entry into possession without termination of this Lease, subject to
Landlord's right to first rent other vacant areas in the Building, Landlord
may relet the Premises or any part thereof to any person, firm or
corporation other than Tenant for such rent, for such time and upon such
terms as Landlord in Landlord's sole discretion shall
20
determine. Any proceeds from the relet of the Premises by Landlord shall
first be applied against the cost and expenses of reletting the Premises
including, but not limited to, all brokerage, advertising, legal,
alteration, and other reasonably necessary expenses incurred to secure a
new tenant for the Premises. If the consideration collected by Landlord
upon any such reletting after payment of the expenses of reletting the
Premises is not sufficient to pay monthly the full amount of the rent
reserved in this Lease, Tenant shall pay to Landlord the amount of each
monthly deficiency as it becomes due upon demand. If the consideration
collected by Landlord upon any such reletting after payment of the expenses
of reletting the Premises is greater than the amount necessary to pay the
full amount of the rent reserved in this Lease, the full amount of such
excess shall be retained by Landlord and shall in no event be payable to
Tenant.
(3) If the Landlord shall decide to terminate this Lease, Landlord, at
its sole option, shall be entitled to recover from Tenant, in lieu of any
amounts due under Section 11B(2) hereof, and Tenant shall pay to Landlord,
on demand, as and for liquidated and agreed final damages, a sum equal to
the amount by which Landlord's reasonable estimate of die aggregate amount
of Base Rent, Operating Adjustment Rent, Tax Adjustment Rent, and
Additional Rent for a period from the date of such termination through the
Termination Date set forth on the Schedule, exceeds the then reasonable
rental value of the Premises for the same period, both discounted to
present worth at the rate of ten percent (10%) per annum. If, before
presentation of such liquidated damages to any court, commission or
tribunal, the Premises, or any part thereof, shall have been relet by
Landlord for such period, or any part thereof, the amount of rent reserved
upon such reletting shall be deemed, prima facie, to be the reasonable
rental value for the part or the whole of the Premises so relet during the
term of the reletting.
(4) Landlord may but shall not be obligated to cure any default by
Tenant hereunder, but, if Landlord so elects, all costs and expenses paid
by Landlord in curing such default and legal fees in connection therewith
shall be Additional Rent payable by Tenant on demand.
(5) Notwithstanding anything in this Lease to the contrary, any and
all remedies set forth in this Lease (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (ii) shall be
cumulative and (iii) may be pursued successively or concurrently as the
Landlord may elect. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition or any subsequent breach of the same,
or any other term, covenant or condition herein contained. The acceptance
of rent hereunder shall not be construed to be a waiver of any breach by
Tenant of any term, covenant or condition of this Lease.
(6) Notwithstanding any provision in this Lease permitting Tenant to
cure any default within a specified period of time, if Tenant shall default
(i) in the timely payment of rent (whether any or all of Base Rent,
Operating Adjustment Rent, Tax Adjustment Rent, or Additional Rent) three
or more times in any period of 12 consecutive months, or (ii) in the
performance of any particular term, condition or covenant of this Lease
three or more times in any period of six consecutive months, then,
notwithstanding that such defaults shall have
21
each been cured within any applicable cure period after notice, if any, as
provided in this Lease, any further similar default (including, without
limitation, with respect to non-payment of rent, the further non-payment of
any kind of rent payable under this Lease) shall not be curable by Tenant
and Landlord shall have all of the remedies provided in this Lease
(including, without limitation, any and all remedies at law and in equity)
for a Default hereunder.
12. HOLDOVER. If Tenant retains possession of the Premises or any part
--------
thereof after the termination of the term or any extension thereof, Tenant shall
become a tenant from month-to-month only upon each and all of the terms herein
provided as may be applicable to such month-to-month tenancy and any such
holdover shall not constitute an extension of this Lease; provided, however,
during such holding over, Tenant shall pay Base Rent, Operating Rent Adjustment
Rent and Tax Adjustment Rent, at double the rate payable for the year
immediately preceding said holding over computed on a monthly basis for the time
Tenant thus remains in possession and, in addition, Tenant shall pay Landlord
all damages, consequential as well as direct, sustained by reason of Tenant's
holding over. The provisions of this paragraph do not waive Landlord's right of
re-entry or right to regain possession by actions at law or in equity or by any
other rights hereunder.
13. SUBORDINATION TO MORTGAGES, TRUST DEEDS AND GROUND LEASES
---------------------------------------------------------
A. Subordination. This Lease shall be subordinated to any and all ground
-------------
leases now or hereafter in force with respect to the Building at the election of
each such ground lessor. This Lease shall be subordinated to the lien of any
and all mortgages now or hereafter in force against (a) the Building or (b) any
and all ground leases with respect to the Building, at the election of each such
mortgagee. Landlord hereby represents to Tenant that, as of the date hereof,
there are no mortgages or ground leases currently existing with respect to the
Building.
The respective rights to so subordinate this Lease at the election of any
such ground lessor or mortgagee shall continue during any renewal, modification,
consolidation, replacement or extension of each such lease or mortgage, and
shall apply to any and all advances made or hereafter made on the security of
each such mortgage.
Subordination shall be effective at election of any such ground lessor or
mortgagee. Election shall not be dependent on receipt of notice by Tenant of
the election to subordinate. Without limitation of the foregoing, notice
thereof may be given as provided for notices pursuant to this Lease.
Such subordination shall be self operating. Nevertheless, Tenant or its
successors in interest upon request of Landlord shall promptly sign and deliver
to Landlord such instruments reasonably needed in Landlord's judgment to
evidence such subordination. Upon request of Landlord, Tenant shall also agree
to attorn to any ground lessor or mortgagee of the Building pursuant to an
agreement satisfactory to such mortgagee or ground lessor provided such
mortgagee or ground lessor agrees not to disturb Tenant in its possession of the
Premises.
B. Termination of Ground Lease or Foreclosure of Mortgage. Should any
------------------------------------------------------
mortgage on the Building or on any ground lease be foreclosed or if any ground
lease be terminated and this Lease be continued:
22
(1) The liability of the mortgagee, ground lessor or purchaser at such
foreclosure sale shall exist only during the time such mortgagee, ground
lessor or purchase is the owner of the Building.
(2) Tenant shall attorn, as Tenant under this Lease without any
deductions or setoffs whatsoever, to the purchaser at the foreclosure sale
(or the mortgagee if the mortgagee becomes owner of the fee estate or
lessor under any ground lease) or, if any ground lease be terminated for
any reasons, Tenant shall be deemed to have attorned as Tenant under this
Lease to the ground lessor under the ground lease, and this Lease shall
continue in force and effect as a direct lease between and binding upon
Tenant and such mortgagee or ground lessor, as the case may be. Tenant
agrees to promptly execute and promptly deliver at any time and from time
to time upon the request of Landlord, or of any ground lessor of any such
ground lease or of any holder of such mortgage or of such purchaser, any
instrument which, in the sole judgment of such requesting party, may be
necessary or appropriate in any such foreclosure or termination proceeding
or otherwise to evidence such attornment.
(3) Tenant shall attorn, as Tenant under this Lease, without any
deductions or setoffs whatsoever, to a leasehold mortgagee (or any
purchaser of the leasehold estate at the foreclosure sale) in the event
such leasehold mortgagee (or such purchaser) should ever become the owner
of the leasehold estate covered by its mortgage or should become the owner
of any new lease in replacement or substitution of such leasehold estate.
(4) As used in this Section 13, "mortgage" shall include trust deed
and "mortgagee" shall include "trustee" and successors and assigns of such
party whether immediate or remote, the purchaser of any mortgage, whether
at foreclosure or otherwise and the successors, assigns and mortgagees of
such purchaser whether immediate or remote.
C. Security Deposit. The mortgagee under a mortgage and the lessor under
----------------
any ground lease shall have no responsibility for the return of the security
deposit, if any, except to the extent the security deposit is held by such
mortgagee or ground lessor.
D. Notice and Right to Cure. Tenant agrees in the event of any act or
------------------------
omission by Landlord which would give Tenant the right to terminate this Lease
or to claim a partial or total eviction, Tenant shall not exercise any such
right (i) until it has notified in writing the holder of any mortgage or lessor
of any ground lease which at the time shall be a lien on the demised premises,
if the name and address of such holder shall previously have been furnished
(either by written notice or hereunder) to Tenant by Landlord, of such act or
omission, (ii) until a reasonable period, not exceeding thirty (30) days, for
commencing the remedy of such act or omission shall have elapsed following the
giving of such notice and (iii) unless such holder or lessor with reasonable
diligence shall not have so commenced and continued to remedy such act or
omission or to cause the same to be remedied. During the period between the
giving of such notice and the remedying of such act or omission, the rent herein
recited shall be abated and apportioned to the extent that any part of the
demised premises shall be untenantable.
23
14. ASSIGNMENT AND SUBLETTING BY TENANT. Tenant shall not assign this
-----------------------------------
Lease, or any interest therein, and shall not sublet the Premises, or any part
thereof, or any right or privilege appurtenant thereto, or suffer any other
person to occupy or use the Premises, or any portion thereof, without first
obtaining the written consent of Landlord, which consent may be arbitrarily
withheld except as hereinafter expressly otherwise provided. If Tenant desires
to assign this Lease or sublet the Premises or any portion thereof, Tenant shall
deliver a written notice (a "Transfer Notice") to Landlord, which Transfer
Notice shall set forth the name of the proposed assignee or sublessee, the terms
and conditions of such assignment or sublease, and the current financial
statements of such assignee and sublessee and, if Tenant proposes to sublease
only a portion of the Premises, the portion of the Premises to be sublet.
Landlord agrees not to unreasonably withhold consent to any such assignment of
this Lease or subletting of the entire Premises, provided Tenant delivers a
Transfer Notice to Landlord as aforesaid and provided (i) at the time thereof
Tenant is not in default under this Lease, (ii) Landlord, in its sole discretion
reasonably exercised, determines that the reputation, business, proposed use of
the Premises and financial responsibility of the proposed assignee or sublessee,
are satisfactory to Landlord, (iii) the proposed assignee or sublessee shall
expressly assume all the obligations of this Lease on Tenant's part to be
performed, (iv) such consent, if given, shall not release Tenant of any of its
obligations under this Lease, including without limitation, its obligation to
pay rent, (v) Tenant agrees specifically to pay over to Landlord, as Additional
Rent, 50% of all sums provided to be paid under the terms and conditions of such
assignment or sublease net of reasonable commissions and reasonable costs of
reletting including, but not limited to, tenant improvement costs paid to
accommodate the proposed assignee or sublessee which are in excess of the
amounts otherwise required to be paid pursuant to this Lease, (vi) a consent to
one assignment or subletting shall not be deemed to be a consent to any
subsequent assignment or subletting and (vii) Tenant shall indemnify and hold
Landlord harmless from any brokerage commissions due in connection with such
assignment or subletting. Whether or not such conditions to assignment or
subletting are met, Landlord, at its sole option, may elect to recapture the
space covered by the Transfer Notice and terminate this Lease on the first day
of the second calendar month next succeeding receipt of Tenant's Transfer
Notice, to be effective unless Tenant elects to withdraw its request to sublease
or assign, which election, if exercised by Landlord, shall be by written notice
to Tenant within twenty (20) days of receipt by Landlord of a Transfer Notice.
If Landlord elects to terminate this Lease in accordance with the foregoing
sentence, Landlord may lease the Premises to the sublessee or assignee proposed
by Tenant. If this Lease shall be terminated with respect to less than the
entire Premises, Base Rent, Operating Adjustment Rent, Tax Adjustment Rent, and
Additional Rent shall be adjusted on the basis of the square feet retained by
Tenant in proportion to the square feet of the Premises prior to such
termination and this Lease as so amended shall continue thereafter in full force
and effect. In such event, Tenant shall pay the cost of erecting demising walls
and public corridors and making other modifications to physically separate the
portion of the Premises remaining subject to the Lease from the rest of the
Premises. Any assignment or subletting or occupancy without Landlord's prior
written consent shall be void and shall, at the option of the Landlord,
constitute a default under this Lease. Neither this Lease nor any interest
therein shall be assignable as to the interest of Tenant by operation of law
without consent of Landlord, which consent may be arbitrarily withheld. Tenant
acknowledges that Landlord may arbitrarily withhold its consent to any
assignment of this Lease or subletting of all or a portion of the Premises to a
proposed assignee or sublessee whose use of the Premises, or a portion thereof,
will be for any non-office use.
24
Tenant agrees that in the event Landlord withholds its consent to any
assignment, subletting, or occupancy contrary to the provisions of the paragraph
next above, Tenant's sole remedy shall be to seek an injunction in equity or
compel performance by Landlord to give its consent and Tenant expressly waives
any right to damages in the event of such withholding by Landlord of its
consent.
Tenant agrees that if it requests Landlord's consent to an assignment or a
subletting that it shall reimburse Landlord for its reasonable costs and
expenses in considering whether to grant its consent (including, but not limited
to, reasonable attorneys' fees). Tenant further agrees that Landlord may, as a
condition to granting its approval to an assignment or a subletting, require the
assignee or sublessee to post a security deposit with Landlord in an amount
determined by Landlord.
15. SALE BY LANDLORD. In the event of sale or conveyance or transfer by
----------------
Landlord of its interest in the Building or in this Lease, the same shall
operate to release Landlord (subject to the second paragraph of Section 17
hereof entitled "Security Deposit") from any future liability upon any of the
covenants or conditions, express or implied, herein contained in favor of
Tenant, and in such event Tenant agrees to look solely to the responsibility of
the interest of the successor in interest of the Landlord in and to this Lease.
This Lease shall not be affected by any such sale, conveyance or transfer. The
term "Landlord," as used in this Lease, means only the Landlord from time to
time, and upon conveying or transferring its interest, such conveying or
transferring landlord shall be relieved from any further obligation or liability
pursuant to this Lease.
16. ESTOPPEL CERTIFICATE. Tenant shall at the request of Landlord at any
--------------------
time and from time to time upon not less than ten (10) days' prior written
notice, execute, acknowledge in recordable form, and deliver to Landlord or
Landlord's mortgagee, ground lessors, auditors or a prospective purchaser of the
Building or any part thereof, a certificate stating that this Lease is
unmodified and in full force and effect, (or, if modified, stating the nature of
such modification and certifying that this Lease, as so modified, is in full
force and effect), and the dates to which the rental and other charges are paid,
that Tenant is in possession and paying rent on a current basis with no offsets,
defenses or claims, that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord or of Tenant as is pertinent to the request (or
specifying such offsets, claims or defaults, if any are claimed) and such
matters as Landlord may reasonably require or that any mortgagee or ground
lessor may require. Such certificate may require the date of commencement of
rent, the date of commencement of term, expiration date, Base Annual Rent,
current Operating Adjustment Rent, and Tax Adjustment Rent, estimates, date to
which rent has been paid, whether or not Landlord has completed any improvements
required to be made to the Premises and such other matters as may be required.
It is expressly understood and agreed that any such statement may be relied upon
by any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Premises are a part or purchaser or assignee or lender to
Tenant or to auditors of either party hereto or by any other person to whom it
is delivered. The failure to deliver such statement within such time shall be
conclusive upon Tenant that this Lease is in full force and effect, without
modification except as may be represented by Landlord, there are no uncured
defaults by or defenses or claims against Landlord and that not more than one
(1) month's rental has been paid in advance and Tenant shall be estopped from
asserting any defaults, defenses or claims known to it at that time.
17. SECURITY DEPOSIT. Tenant deposited with Landlord security for the
----------------
full and faithful performance of every provision of this Lease to be performed
by Tenant in the amount set
25
forth as Item 11 in the Schedule. If Tenant defaults with respect to any
provision of this Lease, Landlord may use all or any part of this security
deposit for the payment of any rent and other sum due or in default, or for the
payment of any other amount which Landlord may spend or become obligated to
spend by reason of Tenant's default, or to compensate Landlord for any loss or
damage which Landlord may suffer by reason of Tenant's default. If any portion
of such deposit is to be used, Tenant shall, within five (5) days after written
demand therefor deposit cash with Landlord in an amount sufficient to restore
the security deposit to its original amount and Tenant's failure to do so shall
be a material breach of this Lease. Landlord shall not re required to keep this
security deposit separate from its general funds and Tenant shall not be
entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every of provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant (or, at Landlord's
option, to the last assignee of Tenant's interest hereunder) at the expiration
of this Lease and upon vacation of the Premises.
Tenant acknowledges that Landlord has the right to transfer all or any part
of its interest in the Building or this Lease, and Tenant agrees that in the
event of any such transfer, Landlord shall have the right to transfer such
security deposit to the transferee. Upon such transfer, Landlord shall thereby
be released by Tenant from all liability or obligation for the return of such
deposit and Tenant agrees to look solely to such transferee for the return of
the security deposit.
Anything in Section 17 to the contrary notwithstanding, Tenant may, at its
option and expense, satisfy the requirement of delivery of the security deposit
by the delivery to Landlord of an unconditional and irrevocable letter of credit
("Letter of Credit") in the amount of $675,000.00 and in the form attached
hereto as Appendix E and issued by any bank reasonably satisfactory to Landlord
and located in Chicago, Illinois. Tenant shall ensure that at all times during
the term of this Lease and for thirty (30) days after expiration of the Term, an
unexpired Letter of Credit in the amount of $675,000.00 or cash in the amount of
$675,000.00 shall be in the possession of Landlord or Landlord's beneficiaries.
The Letter of Credit shall contain a so-called "evergreen" clause providing that
the Letter of Credit shall not be canceled unless the issuing bank delivers
thirty (30) days' prior written notice to Landlord. During the Term, Tenant
shall deliver to Landlord, no later than thirty (30) days prior to the expiry
date of the then outstanding and expiring Letter of Credit (a) a replacement
Letter of Credit or (b) cash in the amount then required as the security
deposit. Failure by Tenant to deliver any replacement Letter of Credit or pay
the amount of the security deposit in cash as required above shall entitle
Landlord or Landlord's beneficiaries to draw under the outstanding Letter of
Credit and to retain the entire proceeds thereof for application as the security
deposit under this Lease. Landlord or Landlord's beneficiaries may also draw
under the Letter of Credit and use and apply the proceeds as a security deposit
at any time that Tenant is in default under this Lease. Landlord or Landlord's
beneficiaries may also draw on the Letter of Credit and use and apply the
proceeds as a security deposit if the credit rating of the long-term debt of the
issuer of the Letter of Credit (according to Xxxxx'x or similar national rating
agency) is downgraded to a grade below investment grade, the issuer of the
Letter of Credit shall enter into any supervisory agreement with any
governmental authority, or the issuer of the Letter of Credit shall fail to meet
any capital requirements imposed by applicable law, and Tenant fails to deliver
to Landlord a replacement Letter of Credit complying with the terms of this
Lease within thirty (30) days of request therefor from Landlord. Failure by the
issuer to honor a draw request on the Letter of Credit shall be a Default under
the terms of this Lease. Each Letter of Credit shall be for the benefit of
Landlord or Landlord's
26
beneficiaries and their successors and assigns and shall entitle Landlord or
Landlord's beneficiaries or their successors or assigns to draw from time to
time under the Letter of Credit in portions or in whole upon presentation of a
sight draft and statement by Landlord or Landlord's beneficiaries that Landlord
or Landlord's beneficiaries is entitled to draw thereunder pursuant to the terms
and provisions of this Lease.
Notwithstanding the foregoing, so long as Tenant is not then in default
under this Lease, the amount of the security deposit shall be reduced as
follows:
-------------------------------------------------------------
TIME PERIOD AMOUNT OF SECURITY DEPOSIT
-------------------------------------------------------------
01/01/96 to 12/31/96 $550,000.00
-------------------------------------------------------------
01/01/97 to 12/31/97 $450,000.00
-------------------------------------------------------------
01/01/98 to 12/31/98 $350,000.00
-------------------------------------------------------------
01/01/99 to 12/31/99 $250,000.00
-------------------------------------------------------------
01/01/00 to 05/30/2005 $100,000.00
-------------------------------------------------------------
Furthermore, if Landlord issues any portion of the Construction Loan to or on
behalf of Tenant, then during the first five (5) full years of the term of the
Lease the amount of the security deposit shall be increased by the amount of the
Construction Loan, and, commencing on the fifth (5th) anniversary of the
Commencement Date, the required security deposit shall be $100,000.00. Landlord
and Tenant each agree that they shall, within twenty (20) days after a written
requested. by the ether party, enter into a reasonable amendment of this Lease
(i) confirming, if applicable, the amount of the security deposit as so
increased, and (ii) substituting a corrected amortization schedule based on the
actual amount of the Construction Loan for the sample authorization schedule
attached to this Lease as Appendix H.
18. EXCUSE OF LANDLORD'S INABILITY TO PERFORM. This Lease and the
-----------------------------------------
obligation of Tenant to pay rent hereunder and perform all of Tenant's covenants
and agreements hereunder shall not be impaired nor shall Landlord be in default
hereunder because Landlord is unable to fulfill any of its obligations under
this Lease, if Landlord is prevented or delayed from so doing by any accident,
breakage, repairs, alterations, improvements, strike or labor troubles, or any
outside cause whatsoever beyond the reasonable control of Landlord, including
but not limited to, energy shortages or governmental preemption in connection
with a national emergency, or by reason of government laws or any rule, order or
regulation of any department or subdivision thereof of any governmental agency,
or by reason of the conditions of supply demand which have been or are affected
by war or other emergency.
20. NOTICES. All notices and approvals to be given by one party to the
-------
other party under this Lease shall be given in writing, mailed or delivered as
follows:
27
(a) To Landlord
as follows: The Xxxx Xxxx Company
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Manager
With a copy to: The Yarmouth Group
0 Xxxxxxx Xxxxx, Xxxxx 0000
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: W. Xxxxx Xxxxx
The Yarmouth Group
Xxx Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
or such other person at such other address designated by notice sent to
Tenant, and after commencement of the term at the address to which rent is
payable.
(b) To Tenant at the place set forth as Item 12 on the Schedule until
Tenant takes possession of the Premises, and thereafter at the Premises or
at such other address designated by notice to Landlord.
Mailed notices shall be sent by United States Certified or Registered
Mail, postage prepaid. Such notice shall be deemed to have been given upon
posting in the United States mails.
21. QUIET POSSESSION. So long as Tenant shall observe and perform the
----------------
covenants and agreements binding on it hereunder, Tenant shall at all times
during the term herein granted, and subject to the provisions of this Lease,
peacefully and quietly have and enjoy the possession of the Premises without any
encumbrance or hindrance by, from or through Landlord, its successors or
assigns.
22. REAL ESTATE BROKER. Tenant states that it has not dealt with any real
------------------
estate broker except for The Xxxx Xxxx Company and that broker listed, if any,
in Item 13 in the Schedule with respect to this Lease and, to its knowledge no
other broker initiated or participated in the negotiation of this Lease,
submitted or showed the Premises to Tenant or is entitled to any commission in
connection with this Lease. Tenant agrees to indemnify and hold Landlord
harmless from all claims from any other real estate broker for commission or
fees in connection with this space and based on dealings with Tenant.
23. CONDEMNATION. If the Building or Premises are taken by eminent domain
------------
so that the Premises cannot be reasonably used by Tenant for the purposes for
which they are demised, then at the option of either party the Lease may be
terminated effective as of the date of the taking. The entire award for any
total or partial taking shall be paid to and retained by Landlord.
28
24. NAME OF BUILDING. Tenant agrees that in advertising, publicity, or on
----------------
signs, it will not, without Landlord's prior written consent, use the name TWO
FIRST NATIONAL PLAZA or any similar name or designation or any other name
associated with the Building, except as its postal address and in identifying
its location, and Tenant shall not use pictures or other representations of the
Building in advertising or publicity or on signs. Tenant further agrees that it
shall not use the designations FIRST NATIONAL, FIRST NATIONAL PLAZA, TWO FIRST
NATIONAL PLAZA, or any confusingly similar designation, as a trade name,
trademark or service xxxx, or component thereof. In addition to all other
rules, promulgated by Lessor from time to time in connection with its management
of the Building, Tenant agrees that Landlord may promulgate or accept such rules
and regulations binding on Tenant as are necessary in connection with Landlord's
use of the name TWO FIRST NATIONAL PLAZA. In the event the name of the Building
is changed, Tenant shall within one (1) year from such change cease using the
name TWO FIRST NATIONAL PLAZA, including, without limitation, any use on its
stationery, business cards and other materials which identify Tenant's location.
25. AGENT FOR SERVICE OF PROCESS. Tenant hereby submits to personal
----------------------------
jurisdiction in the State of Illinois for the enforcement of this Lease and
waives any and all personal rights to object to such jurisdiction for the
purposes of litigation to enforce this Lease. In the event such litigation is
commenced at any time when Tenant is not permanently domiciled in the State of
Illinois, Tenant agrees that service of process may be made and personal
jurisdiction over Tenant obtained, by service of a copy of the summons,
complaint and other pleadings required to commence such litigation upon Tenant's
appointed agent for service of process in the State of Illinois, which agent
Tenant hereby designates to be:
Xxxxxx X'Xxxxxxx, Ph.D.
American Schools of Professional Psychology, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tenant agrees that this appointment of an agent for service of process is made
for the mutual benefit of Tenant and Landlord and may not be revoked without
Landlord's consent. Tenant hereby agrees and consents that any such service of
process upon such agent shall be taken and held to be valid personal service
upon Tenant whether or not Tenant shall be then physically present, residing
within, or doing business within the State of Illinois, and that any such
service hall be of the same force and validity as if service were made upon
Tenant when physically present, residing within, or doing business in the State
of Illinois. Tenant waives all claim of error by reason of any such service.
26. TELEPHONE RISER CABLES.
----------------------
A. Landlord has installed telephone riser cables (collectively the "riser
cables") from the outside of the Building to the terminal block on each floor in
the Building. Subject to Landlord's supervision and approval, Tenant shall have
the right to use the riser cables by installing phone lines (the "telephone
lines") from the Premises to the terminal block on the floor or floors on which
the Premises are located. Landlord, however, makes no representations or
warranties with respect to the capacity, suitability or design of the riser
cables or terminal blocks, except that Landlord represents that the riser cables
and terminal blocks have the capacity to allow tenant to hook-up up to twenty
29
(20) telephone lines to each floor of the Building. If there is more than one
tenant on a floor, Landlord shall allocate hook-ups to the terminal block based
on the proportion of rentable square feet that each tenant occupies on the
floor. The installation and hook-up of telephone lines by Tenant shall be
subject to all of the terms and conditions of this Lease, including, without
limitation, Section 5 of this Lease. At the termination of this Lease, Landlord
shall have the option of requiring Tenant to remove all of its telephone lines
or leave its telephone lines in place.
B. All of the riser cables and terminal blocks in the Building are and
shall be the property of Landlord, and Tenant shall have no rights or interest
therein except as set forth herein. Landlord shall be responsible for
maintaining the riser cables and terminal blocks, and the cost thereof shall be
included in Operating Costs for purposes of this Lease. Under no circumstances,
however, shall Landlord or its agents or employees be liable for, and Tenant
waives all claims with respect to, any damages or losses sustained by Tenant or
any occupant of the Premises, including any property or consequential damages,
resulting from operation or maintenance of the riser cables and terminal blocks.
Without limiting the generality of the foregoing, in no event shall Landlord be
liable for: (a) any damage to Tenant's telephone lines, telephones or other
equipment connected to the telephone lines, (b) interruption or failure of, or
interference with, telephone or other service coming through the telephone lines
to the Premises, or (c) unauthorized eavesdropping or wiretapping.
27. HAZARDOUS SUBSTANCES.
--------------------
A. Defined Terms.
-------------
(1) "Claim" shall mean and include any demand, cause of action,
proceeding, or suit (a) for damages (actual or punitive), losses, injuries
to person or property, damages to natural resources, fines, penalties,
interest, contribution or settlement, or (b) for the costs of site
investigations, feasibility studies, information requests, health or risk
assessments, or Response actions, and (c) for enforcing insurance,
contribution, or indemnification agreements.
(2) "Environmental Law" shall mean and include all federal, state and
local statutes, ordinances, regulations, and rules relating to
environmental quality, health, safety, contamination and clean-up,
including, without limitation, the Clean Air Act, 42 U.S.C. Section 7401 et
--
seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the Water
--- -- ---
Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide
Act ("FIFRA"), 7 U.S.C. Section 136 et seq.; the Marine Protection,
-- ---
Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the National
-- ---
Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the Noise Control
-- ---
Act, 42 U.S.C. Section 4901 et seq.; the Occupational Safety and Health
-- ---
Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation and Recovery
-- ---
Act ("RCRA"), 42 U.S.C. Section 6901 et seq.; as amended by the Hazardous
-- ---
and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C.
Section 300f et seq.; the Comprehensive Environmental Response,
-- ---
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq.,
-- ---
as amended by the Superfund Amendments and Reauthorization Act, the
Emergency Planning and Community Right-to-Know Act, and Radon Gas and
Indoor Air Quality Research Act; the Toxic Substances Control Act ("TSCA"),
15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section
-- ---
2011 et seq., and the Nuclear Waste
-- ---
30
Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and the Environmental
-- ---
Protection Act of Illinois ("IEPA"), Ill. Rev. Stat. ch. 111 1/2, par. 1001
et seq., and state superlien and environmental clean-up statutes, with
-- ---
implementing regulations and guidelines. Environmental Laws shall also
include all state, regional, county, municipal, and other local laws,
regulations, and ordinances insofar as they are equivalent or similar to
the federal laws recited above or purport to regulate Hazardous Materials.
(3) "Hazardous Materials" shall mean and include the following,
including mixtures thereof: any hazardous substance, pollutant,
contaminant, waste, by-product, or constituent regulated under CERCLA; oil
and petroleum products and natural gas, natural gas liquids, liquefied
natural gas, and synthetic gas usable for fuel; pesticides regulated under
the FIFRA; asbestos and asbestos-containing materials, PCBs, and other
substances regulated under the TSCA; source material, special nuclear
material, byproduct material, and any other radioactive materials or
radioactive wastes, however produced, regulated under the Atomic Energy Act
or the Nuclear Waste Policy Act; chemicals subject to the OSHA Hazard
Communication Standard, 29 C.F.R. (S) 1910.1200 et seq.; and industrial
-- ---
process and pollution control wastes whether or not hazardous within the
meaning of RCRA.
(4) "Manage" means to generate, manufacture, process, treat, store,
use, re-use, refine, recycle, reclaim, blend or bum for energy recovery,
incinerate, accumulate speculatively, transport, transfer, dispose of, or
abandon Hazardous Materials.
(5) "Release" or "Released" shall mean any actual or threatened
spilling, leading, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of Hazardous Materials
into the environment, as "environment" is defined in CERCLA.
(6) "Response" or Respond" shall mean action taken in compliance with
Environmental Laws to correct, remove, remediate, cleanup, prevent,
mitigate, monitor, evaluate, investigate, assess, or xxxxx the Release of a
Hazardous Material.
B. Tenant's Obligations with Respect to Environmental Matters. During
----------------------------------------------------------
the term of this Lease, Tenant warrants that (1) Tenant shall at its own cost
comply with all Environmental Laws; (2) Tenant shall not conduct or authorize
the Management of any Hazardous Materials on the Premises, without prior written
disclosure to and approval by the Landlord; (3) Tenant shall not take any action
that would subject the Premises to permit requirements under RCRA for storage,
treatment, or disposal of Hazardous Materials; (4) Tenant shall not dispose of
Hazardous Materials in dumpsters provided by Landlord for Tenant use; (5) Tenant
shall not discharge Hazardous Materials into Building drains or sewers; (6)
Tenant shall not cause or allow the Release of any Hazardous Materials on, to,
or from the Property; and (7) Tenant shall at its own cost arrange for the
lawful transportation and off-site disposal of all Hazardous Materials that it
generates. During the term of this Lease, Tenant shall promptly provide
Landlord with copies of all summons, citations, directives, information
inquiries or requests, notices of potential responsibility, notices of violation
or deficiency, orders or decrees, Claims, complaints, investigations, judgments,
letters, notices of environmental liens or response actions in progress, and
other communications, written or oral, actual or threatened, from the United
States Environmental Protection Agency, Occupational Safety and Health
Administration,
31
Illinois Environmental Protection Agency, or other federal, state, or local
agency or authority, or any other entity or individual, concerning (i) any
Release of a Hazardous Material on, to, or from the Premises; (ii) the
imposition of any lien on the Premises; or (iii) any alleged violation of or
responsibility under Environmental Laws. Landlord and Landlord's and employees
shall have the right to enter the Premises and/or conduct appropriate
inspections or tests in order to determine Tenant's compliance with
Environmental Laws. Upon written request by Landlord, Tenant shall provide
Landlord with the results of appropriate reports and tests, with transportation
and disposal contracts for Hazardous Materials, with any permits issued under
Environmental Laws, and with any other applicable documents to demonstrate that
Tenant complies with all Environmental Laws relating to the Premises. If
Tenant's Management of Hazardous Materials at the Premises (i) gives rise to
liability or to a Claim under any Environmental Law, (ii) causes a significant
public health effect, or (iii) creates a nuisance, Tenant shall promptly take
all applicable action in Response.
C. Indemnification. Tenant shall indemnify, defend, and hold harmless
---------------
Landlord, its beneficiaries, its lenders, any managing agents and leasing agents
of the Premises, and their respective agents, partners, officers, directors, and
employees from all claims arising from or attributable to any breach by Tenant
of any of its warranties, representations, or covenants in this Section.
Tenant's obligations hereunder shall survive the termination or expiration of
this Lease.
Failure by Tenant to comply with the warranties, representations, and
covenants in this Article constitute a default under this Lease.
28. MISCELLANEOUS.
-------------
A. Covenants Binding on Successors. Subject to the terms and provisions
-------------------------------
of Section 14 of this Lease, each provision of this Lease shall extend to and
shall, as the case may require, bind and inure to the benefit of Landlord and
Tenant and their respective heirs, legal representatives and successors and
assigns.
B. Date Payments Are Due. All amounts owed to Landlord hereunder, for
---------------------
which the date of payment is not expressly fixed herein, shall be paid within
thirty (30) days from the date Landlord renders statements of account therefor
and shall bear interest at the rate provided in Section 2E(3) from the date due
until paid.
C. Meaning of "Re-entry". The words "re-enter" and "re-entry" as used in
---------------------
this Lease are not restricted to their technical legal meaning.
D. Time Is of the Essence. Time is of the essence of this Lease and each
----------------------
and all of its provisions.
E. No Option. Submission of this instrument for examination or signature
---------
by Tenant does not constitute a reservation of or option for lease, and it is
not effective as a lease or otherwise until execution and delivery by both
Landlord and Tenant.
F. Severability. The invalidity or unenforceability of any provision
------------
hereof shall not affect or impair any other provisions.
32
G. Governing Laws. The Lease shall be governed by and construed pursuant
--------------
to the laws of the State of Illinois.
H. Lease Modification. Should any mortgagee require a modification of
------------------
this Lease, which modification will not bring about any increased cost or
expense to Tenant or in any other way substantially change the rights and
obligations of Tenant hereunder, Tenant agrees that this Lease may be so
modified.
I. Litigation and Arbitration Costs. In the event of any litigation or
--------------------------------
arbitration between Tenant and Landlord to enforce any provision of this Lease
or any right of either party hereto, the unsuccessful party to such litigation
or arbitration shall pay to the successful party all costs and expenses,
including reasonable attorney's fees, incurred therein. Furthermore, if
Landlord, without fault, is made a party to any litigation instituted by or
against Tenant, Tenant shall indemnify Landlord against, and protect, defend,
and save it harmless from, all costs and expenses, including reasonable
attorney's fees, incurred by it in connection therewith. If Tenant, without
fault, is made party to any litigation instituted by or against Landlord,
Landlord shall indemnify Tenant against, and protect, defend, and save it
harmless from, all costs and expenses including reasonable attorney's fees,
incurred by it in connection therewith.
J. Captions. The marginal headings and tides to the paragraphs of this
--------
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part hereof.
K. Remedies and Rights May Be Exercised by Landlord In Its Own Name;
-----------------------------------------------------------------
Authority to Execute This Lease. All rights and remedies of Landlord under this
-------------------------------
Lease, or that may be provided by law, may be exercised by Landlord in its own
name individually, or in its name by any agent thereof, and all legal
proceedings for the enforcement of any such rights or remedies, may be commenced
and prosecuted to final judgment and executed by Landlord its own name
individually or in its name by any agent thereof. Landlord and Tenant each
represents to the other that it has full power and authority to execute this
Lease and to make and perform the agreements herein contained.
L. Payments to Affiliates. Nothing in this Lease shall be construed to
----------------------
prevent Landlord from paying for services rendered or materials delivered with
respect to the Building or to the demised premises (including, without
limitation, management services and contracting out capital improvements or
other capital repairs or construction items) by affiliates of Landlord or its
beneficiary provided that the fees or costs of such services and materials are
at market rates in the Chicago metropolitan area. All such fees or costs paid
by Landlord to such affiliates shall be deemed to constitute Operating Costs on
the same terms and conditions as if such fees and costs were paid to non-
affiliates of Landlord or its beneficiaries.
M. Limitation of Landlord's Liability. The obligations of Landlord under
----------------------------------
this Lease do not constitute personal obligations of the individual partners,
directors, officers, shareholders, trustees or beneficiaries of Landlord, and
Tenant shall not seek recourse against the partners, directors, officers,
shareholders, trustees or beneficiaries of Landlord, or any of their personal
assets for satisfaction of any liability with respect to this Lease. In the
event of any default by Landlord under this Lease, Tenant's sole and exclusive
remedy shall be against the Landlord's interest in the Building and the real
property on which it is located. The provision of this Section are not designed
to relieve
33
Landlord from the performance of any of any of its obligations hereunder, but
rather to limit Landlord's liability in the case of the recovery of a judgment
against it, as aforesaid, nor shall any of the provisions of this Section be
deemed to limit or otherwise affect Tenant's right to obtain injunctive relief
or specific performance or availability of any other right or remedy which may
be accorded Tenant by law or the Lease. In the event of sale or other transfer
of Landlord's right, title and interest in the Building and an assumption of
this Lease by the purchaser or transferee, Landlord shall thereafter be released
from all liability and obligations hereunder; provided, that this Section shall
inure to the benefit of any such purchaser or transferee.
N. No Personal Liability of Trustee. This Lease is executed by American
--------------------------------
National Bank and Trust Company of Chicago, not personally but solely as Trustee
as aforesaid. All covenants and conditions to be performed hereunder by
American National Bank and Trust Company of Chicago are undertaken by it solely
as Trustee, as aforesaid, and not individually, and no personal liability shall
be asserted or be enforced against American National Bank and Trust Company of
Chicago, the beneficiaries thereof or their agents or representatives by reason
of any of the covenants, statements, representations or warranties contained in
this Lease.
O. Appendices and Rider. The following appendices and Rider are attached
--------------------
to and incorporated in this Lease: Appendix A (Plan of the Premises), Appendix B
(Cleaning Schedule), Appendix C (Rules and Regulations), Appendix D (Work Letter
Agreement), Appendix E (Form of Letter of Credit), Appendix F (Landlord's
Asbestos and Abatement Work), Appendix G (Tenant's Sign), Appendix H (Example of
Amortization Schedule for Construction Loan), Appendix I (Tenant's Space Plan),
and the Rider.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
LANDLORD: TENANT:
AMERICAN NATIONAL BANK AND AMERICAN SCHOOLS OF
TRUST COMPANY OF CHICAGO, not PROFESSIONAL PSYCHOLOGY, INC.,
personally but as Trustee as aforesaid an Illinois corporation
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------- -----------------------------
Name: X.X. Xxxxxx Name: Xxxxxxx Xxxxxxxxx
---------------------------- --------------------------
Title: VP Title: Chairman
---------------------------- --------------------------
34
RIDER
-----
ADDITIONAL LEASE PROVISIONS
---------------------------
THIS RIDER (the "Rider") is attached to and made a part of that certain
-----
lease dated September 8, 1994 (the "Lease"), between American National Bank and
-----
Trust Company of Chicago, not personally but as trustee under a Trust Agreement
dated October 1, 1988, and known as Trust No. 106528-08 (the "Landlord") and
--------
American Schools of Professional Psychology, Inc., an Illinois corporation (the
"Tenant"), for certain premises located on Floors 1, Mezzanine, 2 and 3 of the
------
property commonly known as Two First National Plaza, 20 South Xxxxx Street,
Chicago, Xxxx County, Illinois. All capitalized terms not defined herein shall
have their respective meanings set forth in the Lease. To the extent of any
conflict between the terms and provisions of the Lease and the terms and
provisions of this Rider, the terms and provisions of this Rider shall prevail.
1. Premises. The Premises shall consist of approximately 31, 726 square
--------
feet of rentable area consisting of the following space: (i) a portion of Floor
1 of the Building (containing approximately 4,205 square feet of rentable area),
(ii) the Mezzanine of the Building (containing approximately 2,473 square feet
of rentable area), and (iii) Floors 2 and 3 (each such floor containing
approximately 12,524 square feet of rentable area). The Premises are depicted
on Appendix A attached to and by this reference made a part of the Lease.
2. Base Rent. Tenant shall pay Annual Base Rent throughout the term of
---------
the Lease pursuant to the following schedule:
--------------------------------------------------------------------------------------------------
MONTHLY
BASE RENT PER INSTALLMENTS OF BASE
PERIOD RENTABLE SQUARE FOOT ANNUAL BASE RENT RENT
--------------------------------------------------------------------------------------------------
3/26/95-4/30/96 $3.72 $118,020.72 $ 9,835.06
--------------------------------------------------------------------------------------------------
5/1/96-4/30/97 $4.22 $133,883.72 $11,156.98
--------------------------------------------------------------------------------------------------
5/1/97-4/30/98 $4.22 $133,883.72 $11,156.98
--------------------------------------------------------------------------------------------------
5/1/98-4/30/99 $5.22 $165,609.72 $13,800.81
--------------------------------------------------------------------------------------------------
5/1/99-4/30/00 $5.72 $181,472.72 $15,122.73
--------------------------------------------------------------------------------------------------
5/1/00-4/30/01 $7.72 $244,924.72 $20,410.39
--------------------------------------------------------------------------------------------------
5/1/01-4/30/02 $7.72 $244,924.72 $20,410.39
--------------------------------------------------------------------------------------------------
5/1/02-4/30/03 $8.22 $260,787.72 $21,732.31
--------------------------------------------------------------------------------------------------
5/1/03-4/30/04 $8.22 $260,787.72 $21,732.31
--------------------------------------------------------------------------------------------------
5/1/04-4/30/05 $8.72 $276,650.72 $23,054.23
--------------------------------------------------------------------------------------------------
The amounts set forth above as "Base Rent per rentable square foot",
"Annual Base Rent", and "Monthly Installments of Base Rent" are "net" amounts
and are to be paid by Tenant in addition to and no in lieu of Operating
Adjustment Rent, Tax Adjustment Rent and Additional Rent, as such terms are
defined in the Lease.
3. Delivery of Premises. Landlord shall, subject to the provisions of
--------------------
this Section, deliver possession of the Premises to Tenant twelve (12) weeks
after the date the Lease is fully executed and delivered by Landlord and Tenant.
If Landlord is not able to deliver to Tenant possession of all or a portion of
the Premises on or before the date on which delivery is so required, Landlord
shall not be subject to any liability for such failure to deliver possession.
Such failure to deliver possession shall not affect either the validity of the
Lease or the obligations either landlord or Tenant thereunder, or be construed
to extend the expiration of the term of the Lease. Notwithstanding the
foregoing, if Landlord is not able to deliver to Tenant possession of all of the
Premises within twenty (20) weeks after the date the Lease is fully executed and
delivered by Landlord and Tenant, Tenant may, at its option, and as its sole
remedy, terminate the Lease by delivering written notice of termination to
Landlord before the earlier to occur of (i) ten (10) days after the end of such
twenty (20) week period, and (ii) the date on which Landlord delivers possession
of all of the Premises to Tenant. Landlord shall deliver possession of the
Premises to Tenant in their as-is condition without representation or warranty
of any kind provided that Landlord shall complete (a) the work identified on
Appendix F attached to and made part of the Lease ("Landlord's Asbestos
-------------------
Abatement Work"), (b) the base building work identified on Schedule 1 to the
--------------
Work Letter Agreement attached to the Lease as Appendix D prior to such delivery
of possession, and (c) removal of the teller stations located on the Mezzanine
level of the Building. Notwithstanding the foregoing, Landlord agrees to use
reasonable efforts to (i) complete Landlord's Asbestos Abatement Work on Floor
3, (ii) complete the base building work on Floor 3, and (iii) deliver possession
of Floor 3 to Tenant within eight (8) weeks after the date the Lease is fully
executed and delivered by Landlord and Tenant.
4. Early Occupancy. Provided that (a) Landlord's Asbestos Abatement Work
---------------
has been completed, (b) the tenant improvement work described in the Work Letter
Agreement attached to the Lease as Appendix D has been completed, and (c) Tenant
is not then in default under the terms of the Lease, Tenant may occupy the
Premises as of December 1, 1994 under all of the terms and conditions of the
Lease, except that Tenant shall not be obligated to commence paying Annual Base
Rent until March 26, 1995.
5. Landlord's Option to Terminate. Landlord shall have the option to
------------------------------
terminate this Lease effective as of December 31, 1999 (the "Early Termination
-----------------
Date") by delivering written notice (the "Termination Notice") of such election
---- ------------------
to Tenant on or before January 1, 1999. If Landlord delivers the Termination
Notice to tenant the Lease shall be deemed to have expired by lapse of time on
the Early Termination Date and Tenant shall return the Premises to Landlord on
the Early Termination Date in accordance with the terms of the Lease. Tenant
shall not be released from the payment of rent or any other obligations accruing
prior to the Early Termination Date. If Landlord so exercises its option to
terminate the Lease and if Tenant vacates the Premises on or before the Early
Termination Date and is not in default of any of its monetary obligations under
the terms of the Lease or in Default of any of its non-monetary obligations
under the terms of the Lease, Landlord shall, within thirty (30) days after the
Early Termination Date, pay to Tenant a termination fee (the "Termination Fee")
---------------
in an amount equal to the sum of the Annual Base Rent, Operating Adjustment
Rider-Page 2
Rent and Tax Adjustment Rent accruing under the Lease during the preceding
twelve (12) months. Tenant acknowledges that the Termination Fee shall not
include any amounts paid orpayable by Tenant in connection with the Construction
Loan (as defined in Appendix D to the Lease).
6. Use. Tenant shall use the Premises solely for the purpose of
---
operating a graduate school of psychology including classrooms, a bookstore and
related office purposes, and for no other uses. Tenant acknowledges that the
primary use of the Building is as a first-class office building and that
Landlord has a legitimate interest in preserving the character of the Building
as a first-class office building for the benefit of the other tenants of the
Building. Tenant agrees that it shall comply with, and cause its employees,
students, invitees and guests to comply with, all reasonable rules and
regulations established by Landlord from time to time concerning use of the
Premises, the common areas of the Building and the sidewalks adjacent to the
Building, including, but not limited to, rules and regulations regarding
security, loitering and noise. If Tenant or its employees, students, invitees
or guests fail to comply with such rules and regulations, and if, as a
consequence, Landlord incurs costs to remedy any damage to the Building or
disruption of the character of the Building as a first-class building (such as
janitorial services, extra security guards or other costs), Tenant shall, on
demand, reimburse Landlord for all such costs (not limited to Tenant's
proportionate share thereof) plus fifteen percent (15%) of such costs toward
Landlord's overhead.
7. Principal Entrance to Premises. Except as hereinafter provided in
------------------------------
this Section 7, Tenant shall not be permitted to have access to the Premises
through the Building lobby on the first floor of the Building. The principal
entrance to the Premises shall be located on the second floor of the Building,
subject to the terms of this Section 7. If Landlord determines that use of the
principal entrance to the Premises on the second floor of the Building results
in an excessive amount of pedestrian traffic or places an inordinate burden on
the Building's elevators, Landlord shall have the right, at Landlord's expense,
to relocate such principal entrance to the first floor of the Building at a
location to be determined by Landlord in its reasonable discretion. Tenant
acknowledges that such relocated principal entrance may, at landlord's option,
consist of a storefront entrance to the Premises directly from Xxxxx Street.
Tenant agrees to fully cooperate with any such relocation, including, but not
limited to, granting Landlord entry to the Premises as may be necessary to
effectuate such relocation, provided that Landlord agrees to use reasonable
efforts to avoid unduly disrupting Tenant's business in relocating such
entrance. Tenant acknowledges and agrees that any such entry by Landlord into
the Premises for the purpose of so relocating the principal entrance to the
Premises shall not be deemed to be a constructive or actual eviction of Tenant
and shall not entitle Tenant to any rental reduction, rental abatement or other
remedy or damages.
8. Miscellaneous Alterations to the Premises. Prior to the commencement
-----------------------------------------
of the term of the Lease, Landlord may, at Landlord's option and expense, (a)
remove the entrance doors of the Premises currently located adjacent to the
first floor lobby (the "Existing First Floor Doors") and construct a fire exit
--------------------------
door on the first floor of the Premises in a location determined by Landlord, or
(b) cover the Existing First Floor Doors with opaque glass or other materials
chosen by Landlord and convert such Existing First Floor Doors to a fire exit.
Tenant acknowledges that Landlord shall have the option, exercisable at any time
during the term of the Lease and at Landlord's expense, to render opaque or
cover over the windows of the Premises located on the first floor of the
Building. Tenant shall fully cooperate with Landlord in accomplishing the
foregoing including, but not limited to, granting Landlord entry to the Premises
to effectuate the same. Tenant acknowledges and agrees that
Rider-Page 3
any such entry shall not be deemed to be a constructive or actual eviction of
Tenant and shall not entitle Tenant to any rental reduction, rental abatement or
other remedy or damages.
9. Signage. Landlord shall cooperate with Tenant in permitting Tenant,
-------
at Tenant's expense, to display a sign ("Tenant's Sign") identifying tenant as
-------------
"ISPP", which sign shall be adjacent to the Premises and located on the ground
floor of the Building. Tenant's Sign shall be in the form of the drawing
attached to the Lease as Appendix G. Tenant acknowledges and agrees that the
location, size, character and method of affixing such sign shall be subject to
Landlord's approval. Such sign shall include only the letters "ISPP" (which
letters shall be no more than ten (10) inches high) and no other letters, words,
signs or symbols, provided that in the event Tenant elects to change the name
under which it does business at the Premises, Tenant may substitute a different
acronym for "ISPP" which different acronym shall contain up to four letters, and
provided further that such change in acronym shall be subject to the reasonable
approval of Landlord.
10. Trustee Exculpation. This Rider is executed by American National Bank
-------------------
and Trust Company of Chicago, not personally but solely as Trustee as aforesaid.
All covenants and conditions to be performed hereunder by American National Bank
and Trust Company of Chicago are undertaken by it solely as Trustee, as
aforesaid, and not individually, and no personal liability shall be asserted or
enforced against American National Bank and Trust Company of Chicago, the
beneficiaries thereof, or their agents or representatives by reason of any of
the covenants, statements, representations or warranties contained in this Rider
or the Lease.
IN WITNESS WHEREOF, the undersigned have executed this Rider to Lease as of
the day and year first above written.
LANDLORD: TENANT:
AMERICAN NATIONAL BANK AND AMERICAN SCHOOLS OF
TRUST COMPANY OF CHICAGO, not PROFESSIONAL PSYCHOLOGY, INC.,
personally but as Trustee as aforesaid an Illinois corporation
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------- -------------------------
Its: VP Its: Chairman
--------------- --------------------
Rider-Page 0
XXXXXXXX X
----------
CLEANING SCHEDULE
-----------------
Landlord shall furnish janitorial service as described below:
MONDAY THROUGH FRIDAY, INCLUSIVE
1. Sweep, dry mop or vacuum all floors complete.
2. Empty and damp wipe all ashtrays.
3. Dust all horizontal surfaces that can be reached without a ladder with a
treated cloth, mitt or duster.
4. Clean, polish and sanitize all drinking fountains.
5. Sweep all steps, sidewalks, and plazas.
6. Clean passenger elevator cab and landing doors, including floors.
7. Empty all waste containers.
8. Clean all public wash and restrooms.
(a) All cleaning will be performed with approved germicidal detergents at
disinfectant strengths.
(b) All toilets and urinals will be cleaned on all surfaces nightly; acid
bowl cleaner to be used in the interior.
(c) All wash basins, shelves, dispensers and all other washroom fixtures
will be cleaned nightly.
(d) All mirrors will be cleaned and polished nightly.
(e) All chrome and other bright work, including exposed plumbing, toilet
seat hinges, etc., will be cleaned and polished nightly.
(f) All waste receptacles will be emptied and cleaned nightly.
(g) All lavatory floors will be swept and mopped with a germicidal
detergent solution nightly.
(h) Washroom supplies will be replenished as needed.
Page 1 of 2
(i) Once each month, hard water stains will be removed from toilet
fixtures by using bowl cleaner after normal cleaning in accordance
with manufacturer's recommendations.
9. All normal rubbish and office waste paper shall be removed from Tenant
floors and carried to a designated location. Tenant shall pay Landlord's
charges for excess trash removal upon billing as Additional Rent.
WEEKLY
1. Dust and wipe clean with dust cloth all desk tops.
2. Spot clean all doors, switch plates, walls and glass areas adjacent to
doors.
3. Dust and wipe all tops of all file cabinets and counters.
4. Sweep building stairwells.
5. Damp mop floors and/or spray buff for heavy scuffs, if necessary.
6. Clean glass in building directory.
7. Wipe all waste containers.
8. Wash all glass entrance doors and side panels inside and out.
MONTHLY
1. When possible, sweep and hose down exterior walks, trucking areas and
shipping platforms.
2. Dust all windowsills.
3. Shampoo common area carpeting.
EVERY THREE MONTHS
1. Dust vertical surfaces of all furniture.
2. Scrub all resilient floor areas so as to maintain a highly polished
surface.
WINDOW CLEANING
Wash all windows, both interior and exterior, at reasonable intervals to be
determined by Landlord.
Page 2 of 2
APPENDIX C
----------
RULES AND REGULATIONS
---------------------
1. Tenant shall not place anything, or allow anything to be placed near
the glass of any window, door, partition or wall which may, in Landlord's
judgment, appear unsightly from outside the Building.
2. The Building directory shall be available to Tenant solely to display
Tenant's names and their location in the Building, which display shall be as
directed by Landlord. Tenant shall be permitted to use up to 25 slots in the
Building directory to identify its divisions, departments, officers and faculty.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used by Tenant for any purposes
other than for ingress to and egress from the Premises. The halls, passages,
exits, entrances, elevators, stairways, balconies and roof are not for the use
of the general public and Landlord shall, in all cases, retain the right to
control and prevent access thereto by all persons whose presence in the judgment
of Landlord, reasonably exercised, shall be prejudicial to the safety,
character, reputation and interests of the Building. Neither Tenant nor any
employee or invitee of any tenant shall go upon the roof of the Building.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall not
be used for any purposes other than that for which they were constructed, and no
foreign substance of any kind whatsoever shall be thrown therein, and to the
extent caused by Tenant or its employees or invitees, the expense of any
breakage, stoppage or damage resulting from the violation of this rule shall be
borne by Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
6. No cooking shall be done or permitted by Tenant on the Premises, nor
shall the Premises be used for lodging. Notwithstanding the foregoing, Tenant
may install microwave ovens in the Premises for the exclusive use of Tenant's
employees and students.
7. Tenant shall not bring upon, use or keep in the Premises or the
Building any kerosene, gasoline or inflammable or combustible fluid or material,
or use any method of hearing or air conditioning other than that supplied by
Landlord.
8. Landlord shall have sole power to direct electricians to where and how
telephone and other wires are to be introduced. No boring or cutting for wires
is to be allowed without the consent of landlord. The location of telephones,
call boxes and other office equipment affixed to the Premises shall be subject
to the approval of Landlord.
9. Upon the termination of the tenancy, Tenant shall deliver to Landlord
all keys and passes for offices, rooms, parking lot and toilet which shall have
been furnished Tenant. In the event
Page 1 of 3
of the loss of any keys so furnished, Tenant shall pay Landlord therefor. Tenant
shall not make, or cause to be made, any such keys and shall order all such keys
solely from Landlord and shall pay Landlord for any additional such keys over
and above the two sets of keys furnished by Landlord.
10. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the freight elevator, except
between such hours and in such freight elevator as shall be designated by
Landlord.
12. Tenant shall cause all doors to the Premises to be closed and securely
locked before leaving the Building at the end of the day.
13. Without the prior written consent of Landlord, Tenant shall not use
the name of the Building or any picture of the Building in connection with, or
in promoting or advertising the business of, Tenant, except Tenant may use the
address of the Building as the address of its business.
14. Tenant shall cooperate fully with Landlord to assure the most
effective operation of the Premises' or the Building's heating and air
conditioning, and shall refrain from attempting to adjust controls. Tenant
shall keep corridor doors closed.
15. Tenant assumes full responsibility for protecting the Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
16. Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
17. Tenant shall not advertise the business, profession or activities of
Tenant conducted in the Building in any manner which violates the letter or
spirit of any code of ethics adopted by any recognized association or
organization pertaining to such business, profession or activities.
18. Tenant shall allow no animals or pets to be brought or remain in the
Building or any part thereof, except that blind persons may be accompanied by
"seeing eye" dogs.
19. Tenant acknowledges that Building security problems may occur which
may require the employment of extreme security measures in the day-to-day
operation of the Building.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and/or its agents,
in their sole discretion, require that persons entering or leaving the
Building or the Property identify themselves to watchmen or other employees
designated by Landlord, by registration, identification or otherwise.
Page 2 of 3
(b) Tenant agrees that it and its employees will cooperate fully with
Building employees in the implementation of any and all security
procedures.
(c) Such security measures shall be the sole responsibility of
Landlord, and Tenant shall have no liability for any action taken by
Landlord in connection therewith.
20. Tenant shall not sell alcoholic beverages without first obtaining
written consent of Landlord which may be withheld within the sole discretion of
Landlord.
21. Tenant shall not disturb the quiet enjoyment of any other tenant.
22. Tenant shall not provide any janitorial services or cleaning without
Landlord's written consent and then only subject to supervision of Landlord and
at Tenant's sole responsibility and by janitor cleaning contractor or employees
at all times satisfactory to Landlord.
23. Except with respect to Tenant's Sign as defined in Section 9 to the
Rider to the Lease, Tenant shall not install or permit to be installed any signs
which would be visible from the exterior of the Building or from within its
lobbies without Landlord's approval.
Page 3 of 3
APPENDIX D
----------
WORK LETTER AGREEMENT
---------------------
TWO FIRST XXXXXXXX XXXXX
XXXXXXX, XXXXXXXX
This is the Work Letter Agreement referred to in the foregoing lease (the
"Lease") made between American National Bank and Trust Company of Chicago, not
------
personally, but as Trustee under Trust Agreement dated October 1, 1988 and known
as Trust No. 106528-08, as Landlord and American Schools of Professional
Psychology, Inc., an Illinois corporation, as Tenant, in which Tenant is
leasing certain space from Landlord in a building known as Two First National
Plaza located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx. Capitalized terms
used herein, unless otherwise in this Tenant Work Letter, shall have the
respective meanings assigned to them in the Lease.
Landlord and Tenant agree as follows:
1. Tenant's Work. Tenant shall, at Tenant's own cost and expense except
-------------
for the Construction Allowance (as hereinafter defined), perform all work
("Tenant's Work") necessary or desirable to improve the Premises to a finished
---------------
condition ready for the conduct of Tenant's business therein. Tenant's Work
shall include, among other things, the following:
a. Electrical lighting, fixtures and appliances. Tenant shall apply
and pay for all electrical and other utility meters, including necessary
switchgear feeders and distribution panels required in excess of building
standard.
b. Floor covering required by Tenant, if any.
c. Wall treatment required by Tenant, if any.
d. Fixtures, decorating and furnishings required by Tenant.
e. Water lines, if any, required by Tenant, from then existing
locations in the Premises to locations desired by Tenant.
f. Doors, door frames and hardware.
g. Plumbing facilities, including fixtures required by Tenant.
h. Equipment and facilities for air conditioning and heating.
D-1
i. Building standard window treatments except on Floor 1 of the
Building, provided that Tenant shall use the existing blinds on Floor 1 of
the Building.
j. Other work to improve the Premises for occupancy which is required
or desired by Tenant.
Tenant's Work shall be performed in accordance with Tenant's Plans (defined
in Section 3(b)(i) hereof) approved in advance by Landlord, and subject to the
other terms and conditions of this Work Letter and to the terms and conditions
of the Lease. Tenant's Work shall not affect the structure or systems of the
Building except as may be expressly permitted by Landlord. In addition to
Tenant's Work as set forth in this Work Letter Agreement, certain other work
shall be performed in the Premises by Landlord as set forth on Schedule I
attached to this Work Letter Agreement and on Appendix F attached to the Lease.
2. Pre-Construction Documentation.
------------------------------
a. Upon execution and delivery of the Lease, Tenant shall submit the
following information and items to Landlord:
(i) The scheduled commencement date of construction of Tenant's
Work and the estimated date of completion of construction.
(ii) An itemized statement of estimated construction cost,
including permits and fees and architectural, engineering
and contracting fees (the "Estimated Cost of Tenant's
--------------------------
Work").
(iii) Tenant shall deposit with Landlord or with a title company
selected by Landlord cash equal to the amount by which the
Estimated Cost of Tenant's Work exceeds the Construction
Allowance ("Tenant's Deposit "), as more particularly
----------------
described in Section 7 hereof.
b. All contracts with Tenant's Contractors (as defined in Section
5(c) below) shall be subject to the prior written approval of Landlord.
Landlord agrees to notify Tenant of its approval or disapproval within ten
(10) days after Tenant's request therefor.
c. Tenant shall submit the following information and items to
Landlord not less than ten (10) days prior to commencement of construction
of Tenant's Work:
(i) The names and addresses of Tenant's Contractors. Landlord
shall have the right to approve Tenant's Contractors and
Tenant shall employ as Tenant's Contractors only those
persons or entities approved by Landlord which approval
shall not be unreasonably withheld or delayed. In addition
to the foregoing. Tenant agrees that it shall select the
contractor for the performance of electrical work from
among the following contractors: Xxx Electric or Accord
Electric. Tenant agrees that it shall select the contractor
for the
D-2
performance of mechanical work from among the following
contractors: Competitive Piping Systems, Inc. or Kroeschell
Engineering Company.
(ii) An updated itemized statement of estimated construction
cost, including permits and fees and architectural,
engineering and contracting fees.
(iii) Certified copies of insurance policies or certificates of
insurance as hereinafter described. Tenant shall not permit
Tenant's Contractors to commence work until the required
insurance has been obtained and certified copies of
policies or certificates have been delivered to Landlord.
d. Tenant will update such information and items by notice to
Landlord of any changes.
3. Submission of Drawings. Tenant shall comply with the following
----------------------
procedure for approval of Tenant's Plans by Landlord:
a. Landlord hereby confirms that it has approved a preliminary
conceptual layout ("Space Plan") of the Premises for use in evaluation of
----------
space utilization in the Premises ("Space Plan ") prepared by Quantum
----------
Design Group, Inc. ("Tenant's Architect") for Tenant at Tenant's expense,
------------------
which Space Plan is attached to the Lease as Appendix I.
b. Not more than forty-five (45) days after the date the Lease is
fully executed and delivered by Landlord and Tenant, Tenant shall deliver
to Landlord for its approval three (3) black-and-white prints and one (1)
reverse sepia transfer of Tenant's plans prepared by Tenant's Architect
based on the approved Space Plan.
(i) "Tenant's Plans" means the plans and specifications
--------------
(including architectural, mechanical and electrical working
drawings) for the supply, installation and finishing in the
Premises of Tenant's Work, including without limitation all
partitions; doors and hardware; ceilings; wiring, lights and
switches; heating, cooling and ventilation equipment and
controls; telephone and electrical outlets; floor covering;
drapes; built-ins; plumbing and fixtures; fire protection,
fire warning and security systems; and other equipment and
facilities attached to and forming part of the Building.
(ii) Tenant's Plans shall be prepared at Tenant's sole cost and
expense by Tenant's Architect and Environmental Systems
Design, Inc. ("Environmental Systems"). Environmental
---------------------
Systems will design the electrical, plumbing and mechanical
components of Tenant's Plans. Tenant shall pay all
reasonable and customary fees and costs of Landlord's
architect and engineer in reviewing the Space Plan,
D-3
Tenant's Plans, specifications and drawings, in the event
that such review is required by Landlord in its reasonable
discretion.
(iii) Not more than ten (10) days after receipt by Landlord of
the Tenant's Plans, Landlord shall notify Tenant either of
its approval thereof or of changes required, and of any
modifications required. If Landlord notifies Tenant that
changes are required, Tenant shall, within ten (10) days of
that notification, submit to Landlord, for its approval,
Tenant's Plans amended by Tenant and Tenant's Architect in
accordance with the changes so required. Landlord shall
notify Tenant of its approval or disapproval of the amended
Tenant's Plans within five (5) days after Landlord's
receipt thereof and Tenant shall have any changes to the
Tenant's Plans required by Landlord made within five (5)
days after the date Tenant receives notice thereof. Upon
Landlord's notification to Tenant of approval by Landlord
of Tenant's Plans, Tenant shall promptly submit Tenant's
Plans for pricing and to appropriate authorities for the
issuance of a building permit.
(iv) Approvals or disapprovals on behalf of Landlord may be
given by Landlord, its beneficiary or such architect or
other representative as any of such persons may from time
to time designate. Landlord shall give reasons for any
disapproval. Landlord's approval shall not constitute an
assumption by Landlord of responsibility for the accuracy
or sufficiency of Tenant's Plans, for compliance with law
or performance standards or otherwise. Tenant shall submit
any changes to Tenant's Plans to Landlord for approval
before commencing any work with respect to such changes.
Unless otherwise agreed by Landlord, all drawings provided
by Tenant hereunder shall be of uniform size not exceeding
30" x 42" and to a minimum scale of one eighth inch equals
one foot.
4. Delivery of Premises; Commencement of Tenant's Work
---------------------------------------------------
a. Landlord shall deliver possession of the Premises to Tenant as
and when provided in Section 3 to the Rider to the Lease. All of the terms
and provisions of the Lease shall be binding upon Tenant from and after the
date on which Tenant takes possession of the Premises except that Rent
shall accrue only from and after the Commencement Date as provided in the
Lease.
b. No construction work shall be undertaken or commenced by Tenant
in the Premises until:
(i) Landlord's Asbestos Abatement Work (as defined in Section 3
to the Rider to the Lease) has been completed (provided that
Tenant may commence its work on Floor 3 if Landlord's
Asbestos Abatement
D-4
Work on such floor has been completed and the other
conditions set forth in this Section 4(b) have been
satisfied),
(ii) Tenant's Plans have been submitted to and approved by
Landlord,
(iii) all necessary building permits have been obtained by
Tenant,
(iv) all required insurance coverages have been obtained by
Tenant, and evidence thereof provided to Landlord,
(v) Tenant shall have delivered Tenant's Deposit, if
applicable, to Landlord or to a title company selected by
Landlord pursuant to Section 7 hereof,
(vi) items required to be submitted to Landlord prior to
commencement of construction of Tenant's Work have been so
submitted and have been approved, where required, and
(vii) Landlord has given written notice that the work can
proceed, subject to such reasonable conditions as Landlord
may impose. Landlord agrees to give such notice (and inform
Tenant of such reasonable conditions (if any)) promptly
after satisfaction of the requirements of items (i) through
(vi) of this Section 4(b).
5. Standards of Design and Construction of Tenant's Work and Conditions
--------------------------------------------------------------------
of Performance. All work done in or upon the Premises by Tenant shall be done
--------------
according to the standards set forth in this Section 5, except as the same may
be modified on Tenant's Plans approved by or on behalf of Landlord.
a. All design and construction shall comply with all applicable
statutes, ordinances, regulations, laws, codes and industry standards.
Approval by Landlord of Tenant's Plans shall not constitute a waiver of
this requirement or assumption by Landlord of responsibility for
compliance. Where several sets of the foregoing laws, codes and standards
must be met, the strictest shall apply where not prohibited by another law,
code or standard. Tenant shall cause Tenant's Architect to become familiar
with the foregoing design criteria and with all construction procedures
which may be established by Landlord for the Building in order to permit
completion of proper and adequate architectural, mechanical, electrical,
plumbing and fire protection working drawings for Tenant's Work in
conformity with the standards provided for herein and in order to assure
proper coordination of Tenant's Work with the construction of other
tenants' premises in the Building.
b. Tenant shall, at its own cost and expense, obtain all required
building permits and when construction has been completed shall, at its own
cost and expense, obtain an occupancy permit for the Premises, which shall
be delivered to Landlord.
D-5
c. All contractors and subcontractors engaged by or on behalf of
Tenant for construction of Tenant's Work (collectively, "Tenant's
--------
Contractors") shall be licensed contractors, possessing good labor
-----------
relations, capable of performing quality workmanship and working in harmony
with Landlord's contractors and subcontractors and with other contractors
and subcontractors on the job site. Tenant's general contractor shall be
selected by Tenant from any of the following: (i) X. X. Xxxxxxxx, (ii) ICG,
(iii) Progress Construction, or (iv) another general contractor mutually
agreed upon by Landlord and Tenant. All work shall be coordinated with any
general construction work in the Building in order not to adversely affect
other work being performed by or for Landlord or its contractors and
subcontractors, it being understood that in the event of any conflict,
Landlord and its contractors and subcontractors shall have priority over
Tenant's contractors.
d. Tenant's Contractors, in performing work, shall strictly comply
with such rules and regulations as Landlord shall reasonably require with
respect to the existence of asbestos-containing material in the Premises.
e. Landlord shall have the right, but not the obligation, to perform,
on behalf of and for the account of Tenant, subject to reimbursement by
Tenant for the reasonable actual costs thereof without any profit to
Landlord, any work (i) which Landlord deems necessary to be done on an
emergency basis or (ii) which pertains to structural components of the
Building or (iii) which pertains to the Building's mechanical, electrical,
plumbing and fire protection systems or (iv) which pertains to the erection
of temporary safety barricades or signs during construction or (v) which
pertains to patching of Tenant's Work and other work in the Building. If
Landlord elects to exercise its rights under items (ii) or (iii) of this
Section 5(d), Landlord agrees to give Tenant reasonable prior notice and to
consult with Tenant about the completion of such work so as to minimize
Tenant's costs without adversely affecting the Building's structural
components or mechanical, electrical, plumbing or fire protection systems.
f. Tenant shall use only new, first-class materials in Tenant's Work,
except where explicitly shown in Tenant's Plans approved by Landlord. On
completion of Tenant's Work, Tenant shall provide or cause to be provided
to Landlord warranties of at least one (1) year duration against defects in
workmanship and materials on all work performed and equipment installed in
the Premises as part of Tenant's Work.
g. Tenant's Contractors, in performing work, shall not interfere with
other tenants and occupants of the Building. Tenant shall take all
reasonable precautionary steps to protect its facilities and the facilities
of others affected by Tenant's Work and to properly police same.
Construction equipment and materials are to be kept within the Premises and
delivery and loading of equipment and materials shall be done at such
locations and at such time as Landlord shall direct so as not to burden the
construction or operation of the Building.
h. Landlord shall have the right to order Tenant or any of Tenant's
Contractors who have violated the requirements imposed on Tenant or
Tenant's Contractors pursuant to this Work Letter to cease work and remove
its equipment and employees from the Building
D-6
unless Tenant or Tenant's Contractors, as the case may be, immediately
complies with such requirements.
i. Tenant shall pay Landlord for the reasonable cost of all work
performed by Landlord on behalf of Tenant pursuant to Section 5(e) of this
Work Letter Agreement, or all materials or labor furnished on Tenant's
behalf, or other amounts required to be paid by Tenant to Landlord, within
thirty (30) days from the date of Landlord's invoice therefor.
j. Charges for any service (including electricity in accordance with
Section 4B of the Lease, water, HVAC, hoisting or charges for a freight
elevator operator and the like) to Tenant or the Premises shall be the
responsibility of Tenant from the date Tenant is obligated to commence or
commences Tenant's Work. Tenant shall pay Landlord's contractors and
Landlord their respective charges for such services and all other support
services which may be provided by Landlord's contractors or by Landlord.
All use of freight elevators is subject to scheduling by Landlord and to
charges established by Landlord for the reimbursement of Landlord's actual,
direct costs for Tenant's use of the freight elevators after the normal
business hours of the Building. Tenant shall pay Landlord's charges for
removal of construction debris and shall not place debris in the Building's
waste containers.
k. Tenant shall permit access to the Premises, and Tenant's Work
shall be subject to inspection by Landlord and Landlord's architects,
contractors and other representatives, at all times during the period when
Tenant's Work is being constructed and installed and following completion
of Tenant's Work.
1. Subject only to circumstances over which Tenant has no control and
which could not have been avoided by Tenant by the exercise of due
diligence, Tenant shall proceed with its work expeditiously, continuously
and efficiently, and shall complete the same prior to the Commencement
Date. Tenant shall notify Landlord upon completion of Tenant's Work.
m. Upon completion of Tenant's Work, Tenant shall notify Landlord and
shall furnish Landlord with final waivers of liens and contractors'
affidavits, in such form as may be required by Landlord, Landlord's title
insurance company or construction lender, from all parties performing labor
or supplying materials or services in connection with Tenant's Work showing
that all of said parties have been compensated in full and waiving all
liens in connection with the Premises and Building. Tenant shall furnish
partial waivers of liens and contractors' affidavits to Landlord from time
to time during the course of construction upon Landlord's request covering
those portions of such labor, materials and services which have been
performed and supplied. Tenant shall submit to Landlord a detailed
breakdown of Tenant's total construction costs, together with such evidence
of payment as is reasonably satisfactory to Landlord.
n. Tenant shall have no authority to deviate from Tenant's Plans in
performance of Tenant's Work, except as approved by Landlord and its
designated representative in writing which approval shall not be
unreasonably withheld to the extent that the requested deviation from
Tenant's Plans does not affect the Building's structure or systems.
Landlord shall make
D-7
reasonable efforts to promptly review proposed changes to Tenant's Work. If
Landlord fails to grant its approval to a deviation from Tenant's Plans
within five (5) business days after a written request from Tenant, such
approval shall be deemed denied. Upon completion of Tenant's Work, Tenant
shall furnish to Landlord "as-built" drawings of Tenant's Work.
o Landlord shall have the right to run roof drainage lines, utility
lines, pipes, conduits, duct work and component parts of all mechanical and
electrical systems where necessary or desirable through the Premises, to
repair, alter, replace or remove the same, and to require Tenant to install
and maintain proper access panels thereto.
p. Tenant shall impose on and enforce all applicable terms of this
Work Letter against Tenant's Contractors, Tenant's Architect and Tenant's
engineer.
q. Tenant and Tenant's employees shall not be permitted to occupy
the Premises for the purpose of conducting Tenant's business as described
in Item 4 of the Schedule to the Lease until Landlord's architect confirms
that Tenant's Work has been substantially completed in accordance with the
approved Tenant's Plans. Landlord agrees that it shall use reasonable
efforts to obtain such confirmation within two (2) business days after
Tenant's written request therefor.
6. Insurance and Indemnification.
-----------------------------
a. In addition to any insurance which may be required under the
Lease, Tenant shall secure, pay for and maintain or cause Tenant's
Contractors to secure, pay for and maintain during the continuance of
construction and fixturing work within the Building or Premises, insurance
in the following minimum coverages and limits of liability:
(i) Workmen's Compensation and Employer's Liability Insurance
with limits of not less than $500,000.00 and as required by
any Employee Benefit Acts or other statutes applicable where
the work is to be performed as will protect Tenant's
Contractors from liability under the aforementioned acts.
(ii) Comprehensive General Liability Insurance (including
Contractors' Protective Liability) in an amount not less
than $2,000,000.00 per occurrence, whether involving bodily
injury liability (or death resulting therefrom) or property
damage liability, or a combination thereof, with a minimum
aggregate limit of $2,000,000.00, and with umbrella coverage
with limits not less than $10,000,000.00. Such insurance
shall provide for explosion and collapse, completed
operations coverage and broad form blanket contractual
liability coverage and shall insure Tenant's Contractors
against any and all claims for bodily injury, including
death resulting therefrom, and damage to the property of
others arising from its operations under the contracts,
whether such operations are performed by Tenant's
Contractors or by anyone directly or indirectly employed by
any of them.
D-8
(iii) Comprehensive Automobile Liability Insurance, including the
ownership, maintenance and operation of any automotive
equipment, owned, hired, or non-owned in an amount not less
than $500,000.00 for each person in one accident, and
$1,000,000.00 for injuries sustained by two or more persons
in any one accident and property damage liability in an
amount not less than $ 1,000, 000.00 for each accident.
Such insurance shall insure Tenant's Contractors against
any and all claims for bodily injury, including death
resulting therefrom, and damage to the property of others
arising from its operations under the contracts, whether
such operations are performed by Tenant's Contractors, or
by anyone directly or indirectly employed by any of them.
(iv) "All-risk" builder's risk insurance upon the entire
Tenant's Work to the full insurable value thereof. This
insurance shall include the interests of Landlord and
Tenant (and their respective contractors and subcontractors
of any tier to the extent of any insurable interest
therein) in the Tenant's Work and shall insure against the
perils of fire and extended coverage and shall include
"all-risk" builder's risk insurance for physical loss or
damage including, without duplication of coverage, theft,
vandalism and malicious mischief. If portions of the
Tenant's Work are stored off the site of the Building or in
transit to said site are not covered under said "all-risk"
builder's risk insurance, then Tenant shall effect and
maintain similar property insurance on such portions of
Tenant's Work. Any loss insured under said "all-risk"
builder's risk insurance is to be adjusted with Landlord
and Tenant and made payable to Landlord as trustee for the
insureds, as their interests may appear, subject to the
agreement reached by said parties in interest, or in the
absence of any such agreement, then in accordance with a
final, non-appealable order of a court of competent
jurisdiction. If after such loss no other special agreement
is made, the decision to replace or not replace any such
damaged Tenant's Work shall be made in accordance with the
terms and provisions of the Lease. The waiver of
subrogation provisions contained in the Lease shall apply
to the "all-risk" builder's risk insurance policy to be
obtained by Tenant pursuant to this paragraph.
All policies (except the workmen's compensation policy) shall be endorsed
to include as additional insured parties Landlord and its beneficiaries,
their officers, directors, partners, employees and agents, Landlord's
contractors, Landlord's architects, and such additional persons as Landlord
may designate. Said endorsements shall also provide that all additional
insured parties shall be given not less than thirty (30) days' prior
written notice e of any reduction, cancellation or non-renewal of coverage
(except that not less than ten (10) days' prior written notice shall be
sufficient in the case of cancellation for non-payment of premium) and
shall provide that the insurance coverage afforded to the additional
insured parties thereunder shall be primary to any insurance carried
independently by said additional insured
D-9
parties. The insurance policies required hereunder shall be considered as
the primary insurance and shall not call into contribution any insurance
maintained by Landlord. Additionally, where applicable, each policy shall
contain in a cross-liability and severability of interest clause.
b. Without limitation of the indemnification provisions contained in
the Lease, Tenant agrees to indemnify, protect, defend and hold harmless
Landlord, Landlord's contractors, Landlord's architects and Landlord's
beneficiaries and their officers, directors, partners, agents and employees
from and against all claims, liabilities, losses, damages and expenses of
whatever nature arising out of or in connection with Tenant's Work or the
entry of Tenant's Contractors into the Building and the Premises,
including, without limitation, the cost of any repairs to the Premises or
Building necessitated by activities of Tenant's Contractors and bodily
injury to persons or damage to the property of Tenant, its employees,
agents, invitees, licensees or others. It is understood and agreed that the
foregoing indemnity shall be in addition to the insurance requirements set
forth above and shall not be in discharge of or in substitution for same.
7. Construction and Architectural Plans Allowance. Landlord shall
----------------------------------------------
reimburse Tenant for up to $1,110,410 (being $35.00 per square foot of rentable
area of the Premises) (the "Construction Grant") of the Cost of Tenant's Work
------------------
(as hereinafter defined). If the Cost of Tenant's Work exceeds $1,110,410.00,
Tenant may, at its option, obtain a loan from Landlord in the amount of up to
$111,041.00 (being $3.50 per square foot of rentable area of the Premises (the
"Construction Loan"; the Construction Grant and the Construction Loan sometimes
------------------
collectively referred to herein as the "Construction Allowance") of the Cost of
----------------------
Tenant's Work in excess of the Construction Grant. The Construction Loan shall
be repaid by Tenant to Landlord as hereinafter provided. Tenant shall pay the
amount by which the Cost of Tenant's Work exceeds the Construction Allowance,
and shall, prior to commencement of Tenant's Work, deliver Tenant's Deposit to
Landlord or at Landlord's option, into a construction escrow account with a
title company, pursuant to escrow instructions approved by Landlord and Tenant.
The Construction Allowance or portions thereof, as payments are requested, shall
be paid by Landlord or, at Landlord's option, deposited periodically into the
construction escrow described in the foregoing sentence. The Construction
Allowance and Tenant's Deposit shall be paid out to Tenant or, upon request from
Tenant, to Tenant's Contractor, based upon 90% of the value of the work for
which payment is requested to reimburse Tenant for the Cost of Tenant's Work.
Prior to the payment of any portion of the Construction Allowance or Tenant's
Deposit, Tenant shall deliver, or shall cause to be delivered to Landlord or to
the construction escrowee, as the case may be, evidence that the work for which
reimbursement is then being requested as been performed and paid for by Tenant,
which evidence shall include executed lien waivers, architect's certificates,
contractor's statements, and owner's statements covering the work for which
reimbursement is requested from time to time, and such other documentation as
may be requested by Landlord or the escrowee. Landlord covenants that it will
make disbursements of the Construction Allowance or Tenant's Deposit within
thirty (30) days after receiving the foregoing required documentation. Funds
paid to Tenant from Landlord or the construction escrowee shall be deemed to be
paid out of the Construction Allowance until the full amount of the Construction
Allowance has been disbursed. In no event shall Landlord be required to (1)
make more than one disbursement of the Construction Allowance or Tenant's
Deposit during any single calendar month, or (2) make any disbursement of the
Construction Allowance or Tenant's Deposit at any time that
D-10
Tenant is in default of any of its monetary obligations under the terms of the
Lease or in Default of any of its non-monetary obligations under the terms of
the Lease. Tenant acknowledges that any request for payment of the Construction
Allowance must be delivered to Landlord, together with executed lien waivers,
architect's certificates, contractor's statements and owner's statements
covering the work for which reimbursement is then being requested, no later than
the last business day of the sixth (6th) full month following the Commencement
Date. Upon Tenant's completion of Tenant's Work and delivery to Landlord of
final lien waivers and other evidence reasonably required by Landlord to confirm
Tenant's Work has been completed and fully paid for, Landlord shall, promptly
after written request from Tenant, return to Tenant any portion of Tenant's
Deposit not theretofore applied toward the Cost of Tenant's Work.
If the Cost of Tenant's Work is less than $35.00 per square foot of
rentable area of the Premises, Tenant shall not be entitled to any credit,
payment or abatement on account of portions of the Construction Allowance not
used to pay for Tenant's Work. Notwithstanding the foregoing, Tenant may direct
Landlord to pay to Tenant a portion of the Construction Grant not used to pay
for Tenant's Work in an amount up to $95,178.00 (the "Moving Allowance") to
----------------
reimburse Tenant for the actual cost (the "Moving Costs") of moving Tenant's
----------------
furnishings, furniture, files and equipment from the space currently occupied by
Tenant at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, to the Premises. Provided
that Tenant has delivered to Landlord copies of paid invoices and any other
documents or information reasonably required by Landlord to evidence that the
Moving Costs have been fully paid and provided further that Tenant is not then
in default under the terms of the Lease, Landlord shall pay the Moving Allowance
to Tenant promptly after the later to occur of (i) the date on which Landlord's
architect confirms that Tenant's Work has been substantially completed in
accordance with the approved Tenant's Plans, and (ii) Commencement Date (as
defined in the Lease).
8. Construction Loan. The Construction Loan shall accrue interest at the
-----------------
rate of ten percent (10%) per annum and shall be repaid by Tenant to Landlord in
equal monthly of principal together with an interest accrued thereon (with the
first such payment first day of the first full calendar month after the month in
which the Construction Loan is initially disbursed to Tenant (the date on which
the Construction Loan is initially disbursed being referred to herein as the
"Loan Disbursement Date")) so that the entire principal balance of the
-----------------------
Construction Loan and all interest thereon shall be have been repaid in full by
Tenant on the first day of the calendar month in which the tenth (10th)
anniversary of the Loan Disbursement Date occurs. (A sample amortization
schedule for the Construction Loan based on the full amount of the Construction
Loan is attached to the, Lease as Appendix H). Repayments of the Construction
Loan by Tenant shall be made as additional rent under the Lease. Notwithstanding
the foregoing, Landlord may, at its option, accelerate Tenant's obligation to
repay the entire Construction Loan, together with all interest thereon, if
Tenant is in Default under the terms of the Lease, or if Tenant is in default in
the repayment of the Construction Loan, or if Landlord exercises its right to
terminate the Lease pursuant to Section 5 of the Rider attached to the Lease, or
if the Lease terminates for any reason prior to the tenth (10th) anniversary of
the Loan Disbursement Date.
9. Cost of Tenant's Work. "Cost of Tenant's Work" shall mean costs of
--------------------- ---------------------
all labor and materials, general contractor's fees, architectural and
consulting fees and any permit or necessary for completion of construction of
Tenant's Work.
D-11
10. Miscellaneous.
-------------
a. Charges due from Tenant to Landlord pursuant to this Work Letter,
if any, be deducted by Landlord from any payment of the Construction
Allowance.
b. If Tenant's Plans require the construction and installation of
more fire hose cabinets or telephone/electrical closets than the number
regularly provided by Landlord in the portion of the Building in which the
Premises are located, Tenant shall pay all costs and expenses arising from
the construction and installation of such additional fire cabinets or
telephone/electrical closets.
c. Any person signing this Work Letter on behalf of Landlord and
Tenant warrants and represents he or she has the authority to do so.
d. This Work Letter shall not be deemed applicable to any additional
office space added to the original Premises at any time or from time to
time, whether by any options under the Lease or otherwise, or to any
portion of the original Premises or any additions thereto in the event of a
renewal or extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so provided in the
Lease or any amendment or supplement thereto.
e. With respect to any amounts owed by Tenant hereunder and not paid
when due or Tenant's failure to perform its obligations hereunder, Landlord
shall have all of rights and remedies granted to Landlord under the Lease
for non-payment by Tenant of any amounts owed thereunder or failure by
Tenant to perform its obligations thereunder.
f. Landlord and Tenant each agree that time is of the essence with
respect to the successful delivery of the completed Premises by the
anticipated Commencement Date. Consequently, both Landlord and Tenant agree
to process and review all documentation which requires their individual
review and approval in a timely and expeditious manner so as to not create
an unnecessary delay in the completion of the Premises by the scheduled
Commencement Date.
g. Landlord shall not charge any fees relative to the supervision of
Tenant's work except for the actual out-of-pocket expenses incurred by
Landlord in retaining consultants with respect to Tenant's Work, which out-
of-pocket expenses shall not include any xxxx-up or overhead in favor of
Landlord.
h. Neither Tenant nor any of Tenant's Contractors shall perform any
work which would penetrate, damage or alter any of the granite surfaces
located in the Premises, without Landlord's prior written consent.
11. Trustee Exculpation. This instrument is executed by American National
-------------------
Bank and Trust Company of Chicago, not personally but solely as Trustee under
Trust Agreement dated October 1, 1988 and known as Trust No. 106528-08. All the
covenants and conditions to be performed hereunder by said trustee are
undertaken by it solely as trustee aforesaid, and not
D-12
individually, and no personal liability shall be asserted or be enforceable
against such trustee or its agents by reason of any of the covenants,
statements, representations or warranties contained in this instrument.
D-13
LANDLORD: TENANT:
AMERICAN NATIONAL BANK AND AMERICAN SCHOOLS OF
TRUST COMPANY OF CHICAGO PROFESSIONAL PSYCHOLOGY, INC.,
not personally but as Trustee as an Illinois corporation
By: /s/ X.X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------ ----------------------------
Name: X.X. Xxxxxx Name: Xxxxxxx Xxxxxxxxx
------------------------- -----------------------
Title: VP Title: Chairman
------------------------ ----------------------
D-14
SCHEDULE 1 TO WORK LETTER AGREEMENT
-----------------------------------
1. Base Building.
-------------
Except as otherwise provided herein, Landlord shall, at its sole cost and
expense, deliver Floors 3, 2, 1 and the Mezzanine of the Building to Tenant
in conformity with the following requirements:
(a) Floor Finishing
---------------
Carpeting will be removed and floors will be left in an "as-is"
condition. Any electrical duct cores will be left for future tenant
use.
(b) Floor Loading
-------------
Floor loads shall be per applicable codes and base building standards
throughout. Floor loading is 60 p.s.f. Any floor loads in excess of 60
p.s.f. must be reviewed and approved by Landlord's structural
engineer, at Tenant's expense.
(c) Wall, Column and Perimeter Bulkhead Construction
------------------------------------------------
(1) Floor 3: All core walls and perimeter columns to be drawled and
ready to receive tenant finish.
(2) Floor 2: All core walls to remain as-is. Perimeter columns to be
drywalled and ready to receive tenant finish.
(3) Floor 1: All core walls to remain as-is. Perimeter columns to be
drywalled and ready to receive tenant finish.
(4) Mezzanine: All core walls to remain as-is. Perimeter columns to
be drywalled and ready to receive tenant finish.
(d) Other Perimeter Finishes
------------------------
Building perimeters will be fully finished as relates to water
proofing, caulking, glazing and metal finishing including all required
glass replacement (in the event of defects or cracked or broken
panes), glass cleaning on exterior, metal touch-up and cleaning, and
any other actions required to render the perimeters to a Tenant-ready
condition prior to Tenant starting construction. The windows located
on the West and North sides of Floor 2 will be delivered in their as-
is condition.
The windows located on the North side of Floor 1 and the lower half of (i) the
windows located on the East side of Floor 1 and (ii) the lobby windows and doors
of Floor 1 will be rendered opaque. If Landlord elects to change the lobby doors
to windows on Floor 1 of the Building, such work shall be performed by Landlord
at Landlord's expense.
Schedule 1--1
(e) Other Core Finishes
-------------------
Fire fighting equipment enclosures, janitors closets, electrical and
mechanical rooms, toilets, fire exit enclosures and related areas
shown on the Plans to be finished to base building standards.
Specifically, the following will be required:
(1) Women's and men's washrooms will be restored to operating
condition with existing fixtures.
(2) Core telephone closets complete.
(3) Janitor closets complete.
(4) Electrical closets complete.
(5) Fire hose cabinets finished and complete with hoses and
extinguishers or as required to code. If Tenant's plan requires
the fire hose cabinets to be relocated, the relocation will be
done at Tenant's expense.
(6) Core corridor doors, shall be in good repair and ready to receive
Tenant's finish.
(7) Locking devices and closets for all exit, stairwell and
electrical/telephone doors and women's/men's washrooms.
(8) All existing openings, pipe sleeves, etc., in floors, slabs,
beams and walls to be patched and sealed as required by code,
except for Xxxxxx duct caps.
(9) Landlord agrees to supply, at its expense, four (4) fire alarm
annunciator speakers at Landlord's expense. Tenant shall supply,
at its expense, all other fire alarm annunciator speakers
required by applicable fire codes and shall install, at Tenant's
expense, all of the required fire alarm annunciator speakers,
including those supplied by Landlord.
(10) Ground level complete (elevator lobbies, landscaping, truck dock,
fan rooms, etc.).
(11) Mechanical, electrical, elevator, escalator, tc., base building
systems, all complete and operating.
Note: The closets identified in items (2) and (4) above shall remain secured
by Landlord. However, access will be available to Tenant, as required
upon request and without cost to Tenant.
Schedule 1--2
(f) Electrical Distribution and Service
-----------------------------------
As part of the base building work, Landlord shall provide an
electrical distribution and service system as follows:
(1) Provide electrical service of 120/208 volts, 3 phase, 4 wire 60
cycles through a switchboard suitable for such service.
Switchboard devices shall be selectively coordinated with a ground
fault protection system.
(2) Distribution voltages for fluorescent lighting, receptacle
circuits, small motors and incandescent fighting shall be 120/208
volts, 4 wire, 3 phase.
(3) The electrical service provided by the electric user system shall
be brought to the premises and shall be five (5.0) xxxxx per
rentable square foot for Tenant's lighting and receptacles only,
excluding HVAC equipment, special systems, miscellaneous
electrical loads and elevator equipment requirements.
(g) Window Treatments
-----------------
Tenant shall provide and install new building standard window
treatment system (track and cords) on Floor 2 and Floor 3. Tenant
shall use the existing window treatments on Floor 1.
(h) Patching
--------
Landlord will do remedial patching and repairs of core drywall and
ceilings in washrooms and elevator lobby to receive Tenant's finishes,
at no added expense to Tenant.
(i) Washrooms
---------
Landlord will provide the existing washrooms with fixtures, fighting
and accessories, toilet partitions, and wall and surface finishes, in
a good working condition.
2. Ceiling
-------
Tenant shall have the option of selecting building standard ceiling grid
and tile or ceiling system of Tenant's choice, with Landlord's approval,
which shall not be unreasonably withheld. Ceiling system will be completed
at Tenant's cost.
3. Heating, Ventilation and Air Conditioning.
------------------------------------------
(a) Tenant shall cause the appropriate mechanical and electrical engineers
(reasonably acceptable to Landlord) to prepare the plans for the HVAC
distribution system for the Premises.
Schedule 1--3
(b) Interior base building supply ductwork will be restored including any
and all reheat boxes, and primary supply branch ducts with operable
balancing dampers. Perimeter convector unit housings will be restored
to a sound structural condition but left with the existing paint
finishes since convector housings are painted to coordinate with
tenants' design scheme. Convector units will be made fully operational
and thoroughly cleaned of refuse, respray and dust prior to occupancy.
Painting of the convector units, if required, shall be at Tenant's
expense.
(c) Supply outlets shall be selected for minimum drafts and noiseless and
good air distribution, at Tenant's expense.
(d) The type, size and arrangement of the diffusers shall be determined by
Tenant after consultation with Tenant's architect, and shall be
installed at Tenant's expense.
(e) All supply and/or return ducts shall be equipped with fusible link
dampers as prescribed by applicable laws, if any, at Tenant's expense.
4. Electricity, Lighting
---------------------
In addition to the 5 xxxxx per square foot electrical power allowance
provided for Tenant's use for lighting and receptacles, Tenant may obtain
additional future power at Tenant's expense from the existing high voltage
riser serving the building. Landlord shall provide existing building
standard light fixtures for use by Tenant and the same shall be installed
by Tenant at Tenant's expense. Any cleaning, lamps, or part replacement
for these light fixtures will be at Tenant's expense. Telephone risers
provided by Landlord are located at the building core for use by Tenant.
5. Loading Dock, Hoisting, Elevators
---------------------------------
Landlord will permit Tenant to use the Building's loading dock and freight
elevators during normal business hours at no expense to Tenant. All
deliveries must be made at rear of the Building. The loading dock area is
accessible from Madison Street. The freight elevator located in the
loading dock area is to be used for all deliveries during business hours.
The freight elevator hours are 7:30 A.M. to 4:30 P.M., Monday through
Friday. No deliveries are allowed through the Xxxxx Street entrance or in
the passenger elevators during business hours.
Deliveries and rubbish removal requiring extended use of the dock or
freight elevator to be scheduled in advance with the Office of the Building
for after-hours or weekends. Special arrangements can be made to use the
Xxxxx Street entrance. (Carpet must be covered with masonite.) Building
personnel must be present during such times will be charged to the
contractor at a cost of approximately $18.50 an hour. Forty-eight (48)
hours advance notice is needed on all extended deliveries.
Tenant shall not be charged for use of the freight elevator or for freight
elevator operators during Tenant's move into the Building.
Schedule 1--4
6. Coordination
------------
Landlord will cooperate during Tenant's construction and move-in stages and
assist in coordinating and expediting base building activities and related
services over this period of time. Landlord shall not charge any fees for
their assistance, monitoring and/or supervising construction.
7. Utilities During Construction
-----------------------------
Landlord shall provide, at Tenant's expense, all temporary power.
Stringing of temporary power wiring and temporary lighting on each floor is
Tenant's expense. Tenant shall, at Tenant's expense, schedule dumpsters
for Tenant's use during Tenant's construction and move in.
Schedule 1--5
APPENDIX E
----------
FORM OF LETTER OF CREDIT
------------------------
IRREVOCABLE STAND-BY LETTER OF CREDIT September ___, 1994
CREDIT NUMBER:
EXPIRY:
APPLICANT BENEFICIARY
--------- -----------
American Schools of 00 Xxxxx Xxxxx Xxxxxx Owners Corp.,
Professional Psychology, Inc. a Delaware corporation
00 Xxxxx Xxxxx Xxxxxx c/o Office of the Building
Suite No. 2900 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
AMOUNT
------
See Schedule 1 attached hereto
We hereby issue in your favor our Irrevocable Standby Letter of Credit number
_________________________ -______________________________ (the "Credit") which
is available by your draft(s) drawn on us at sight accompanied by the following
document(s):
A sworn and notarized statement duly signed by an authorized representative of
Beneficiary stating: "BENEFICIARY IS ENTITLED TO DRAW UPON THIS CREDIT IN
ACCORDANCE WITH THE TERMS OF THAT CERTAIN LEASE DATED SEPTEMBER 8,1994, BY AND
BETWEEN AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO AS TRUSTEE UNDER
TRUST NUMBER 106528-08 AND APPLICANT FOR THE LEASE OF CERTAIN SPACE LOCATED AT
00 XXXXX XXXXX XXXXXX, XXXXXXX, XXXXXXXX."
Partial drawings shall be permitted.
If a drawing in respect of payment is made by you hereunder at or prior to 11:00
A.M. (Central Standard Time) on a Business Day (defined below), and provided
that such drawing and the statement presented in connection therewith conform to
the terms and conditions hereof, payment shall be made to you of the amount
specified, in immediately available funds, on the same Business Day. If a
drawing in respect of payment is made by you hereunder after 11:00 A.M. (Central
Standard Time), on a Business Day, and provided that such drawing and the
statement presented in connection therewith conform to the terms and conditions
hereof, payment shall be made to you in the amount specified, in immediately
available funds, on the next Business Day. If requested by you, payment under
this Credit may be made by deposit of immediately available funds into a
designated account that you maintain with the Bank or by wire transfer directly
to an account designated by Beneficiary. As used herein "Business Day" shall
mean any day other than a Saturday, Sunday or a day on which banking
institutions in the jurisdiction in which the Bank is located are authorized or
required by law to close.
E-1
This Credit is transferable in its entirety (but not in part) to the landlord
(and its successors and assigns) under that certain Lease dated September 8,
1994, by and between American National Bank and Trust Company of Chicago as
Trustee under Trust No. 106528-08, as landlord, and Applicant, as tenant, for
the lease of certain space located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx,
as the same may be amended or modified from time to time.
This Credit shall automatically renew itself (subject to reduction in amounts as
hereinafter set forth) from year to year commencing on the first anniversary of
the date hereof, until May 30, 2005, unless and until the undersigned shall have
given thirty (30) days' prior written notice by certified mail, return receipt
requested, to (i) the Beneficiary at its address set forth above, and (ii) The
Yarmouth Group, Inc., Two Prudential Plaza, 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxx Xxxxxx, of the undersigned's
intent not to renew this Credit at the expiration of such thirty (30) day
period. During said thirty (30) day notice period, this Credit shall remain in
full force and effect and Beneficiary may draw up to the full amount of the sum
when accompanied by a statement described in the second paragraph of this
Credit. The amount of this Credit shall decline in accordance with Schedule 1
attached hereto.
Each draft drawn under this Credit must state: Drawn under ____________________,
Chicago, Illinois, Reference No. _______________ -__________________________.
We hereby engage with you that draft(s) drawn under and in compliance with the
terms of this Credit will be duly honored on presentation.
This Credit sets forth in full the terms of our undertaking and such an
undertaking shall not in any way be modified or amplified by reference to any
documents, instruments or agreements referred to herein, or in which this Credit
is referred to or to which this Credit relates and any such reference shall not
be deemed to incorporate herein by reference any such documents, instruments or
agreements.
_______________________________Bank
___________________________________
Authorized Signature
E-2
SCHEDULE 1
LETTER OF CREDIT ISSUED BY ______________________ BANK
IN FAVOR OF 00 XXXXX XXXXX XXXXXX OWNERS CORP.,
DATED SEPTEMBER ____, 1994
=============================================================
TIME PERIOD AMOUNT OF LETTER OF CREDIT
-------------------------------------------------------------
09/08/94 to 12/31/95 $675,000.00
-------------------------------------------------------------
01/01/96 to 12/31/96 $550,000.00
-------------------------------------------------------------
01/01/97 to 12/31/97 $450,000.00
-------------------------------------------------------------
01/01/98 to 12/31/98 $350,000.00
-------------------------------------------------------------
01/01/99 to 12/31/99 $250,000.00
-------------------------------------------------------------
01/01/00 to 05/30/2005 $100,000.00
=============================================================
E-3
APPENDIX F
----------
LANDLORD'S ASBESTOS ABATEMENT WORK
----------------------------------
1. Removal of accessible and associated overspray ACM fireproofing from
structural steel beams, metal deck and columns and replacement with non-ACM
fireproofing, except where otherwise noted on attached floor plans.
2. Removal of ACM floor tile and mastic, if any.
Landlord shall be deemed to have completed the above-described work at the time
Landlord's asbestos consultant has performed clearance tests which meet the
standards set forth in Landlord's asbestos abatement program for the Building.
Landlord shall deliver a copy of such clearance tests to Tenant promptly
following its receipt of same.
Landlord reserves the right to re-enter the Premises any time during the lease
term in order to xxxxx remaining ACM where noted on the attached floor plans.
F-1
AMENDMENT TO LEASE
------------------
THIS AMENDMENT TO LEASE (this "Amendment") is entered into as of the 28th
day of November , 1997, by and between AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, not personally, but as Trustee under Trust Agreement dated October
1, 1988 and known as Trust No. 106528-08 ("Landlord") and AMERICAN SCHOOLS OF
--------
PROFESSIONAL PSYCHOLOGY, INC., an Illinois corporation ("Tenant ").
------
R E C I T A L S:
- - - - - - - -
A. Landlord and Tenant entered into a lease, dated September 8, 1994 (the
"Lease") for a portion of the premises (the "Premises") located at 00 Xxxxx
--------
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx and known as "Two First National Plaza" (the
"Building").
---------
B. The Premises currently consist of approximately 31,726 square feet of
rentable area (the "Original Space").
--------------
C. Tenant desires to lease an additional portion of the Building containing
approximately 5,655 square feet of rentable area (the "Additional Space"), which
----------------
Additional Space is located on the 4th Floor of the Building and is depicted on
Appendix A-5 attached hereto and by this reference made a part hereof.
D. Landlord and Tenant desire to amend the Lease by, among other things,
adding the Additional Space to the Premises, all on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree to amend the Lease as follows:
1. ADDITIONAL SPACE COMMENCEMENT DATE; RENT. Effective January 1, 1998 (the
----------------------------------------
"Additional Space Commencement Date"), the Additional Space shall be added to
-----------------------------------
the Premises upon all of the terms and conditions of the Lease as modified
herein. The Termination Date of the Lease for the Additional Space shall be
April 30, 2005, or the sooner termination of the Lease. Commencing on the
Additional Space Commencement Date:
(a) the Premises shall be deemed to contain 37,381 square feet of
rentable space in the aggregate;
(b) Annual Base Rent and monthly installments thereof with respect to
the Additional Space shall be payable as follows:
=========================================================================
BASE RENT PER MONTHLY
RENTABLE SQUARE INSTALLMENTS OF
PERIOD FOOT ANNUAL BASE RENT BASE RENT
-------------------------------------------------------------------------
01/01/98-12/31/98 $5.00 $28,275.00 $2,356.25
-------------------------------------------------------------------------
01/01/99-12/31/99 $5.25 $29,688.75 $2,474.06
-------------------------------------------------------------------------
01/01/00-12/31/00 $5.50 $31,102.50 $2,591.88
-------------------------------------------------------------------------
01/01/01-12/31/01 $5.75 $32,516.25 $2,709.69
-------------------------------------------------------------------------
01/01/02-12/31/02 $6.00 $33,930.00 $2,827.50
-------------------------------------------------------------------------
01/01/03-12/31/03 $6.25 $35,343.75 $2,945.31
-------------------------------------------------------------------------
01/01/04-12/31/04 $6.50 $36,757.50 $3,063.13
-------------------------------------------------------------------------
01/01/05-04/30/05 $6.75 $38,171.25 $3,180.94
=========================================================================
The amounts set forth above as "Base Rent per rentable square foot",
"Annual Base Rent", and "Monthly, Installments of Base Rent" are "net"
amounts and are to be paid by Tenant in addition to and not in lieu of
Operating Adjustment Rent, Tax Adjustment Rent and Additional Rent, as such
terms are defined in the Lease.
(c) Tenant's Operating Proportionate Share shall be 10.6639 % for the
purpose of calculating Operating Adjustment Rent for the entire Premises;
and
(d) Tenant's Tax Proportionate Share shall be 10.6639% for the purpose
of calculating Tax Adjustment Rent for the entire Premises.
2. IMPROVEMENTS TO THE ADDITIONAL SPACE. Tenant acknowledges that it is
------------------------------------
leasing the Additional Space in its "as is" condition. No agreement of Landlord
to alter, remodel, decorate, clean or improve the Premises or the Building and
no representation or warranty regarding the condition of the Premises or the
Building or regarding any other matter of any kind or nature has been made by or
on behalf of Landlord to Tenant under or by reason of this Amendment.
3. APPENDIX A-5. Effective as of the Commencement Date of the Lease for
------------
the Additional Space, Appendix A-5 attached hereto is attached to and made part
of the Lease.
4. BROKERS. Landlord and Tenant each represent and warrant to the other
-------
that the only brokers they have dealt with in connection with this Amendment are
The Xxxx Xxxx Company and Xxxxxxx & Xxxxxxxxx of Illinois, Inc., whose
commission and fees shall be paid by Landlord pursuant to a separate written
agreement. Landlord and Tenant each agree to defend, indemnify and hold the
other harmless from and against all claims by any other broker for fees,
commissions or other compensation to the extent such broker alleges to have been
retained by the indemnifying party in
2
connection with the execution of this Amendment. The provisions of this Section
shall survive the expiration or sooner termination of the Lease.
5. MISCELLANEOUS. Except as modified herein, the Lease and all of the
-------------
terms and provisions thereof shall remain unmodified and in full force and
effect as originally written. All terms used herein but not defined herein
which are defined in the Lease shall have the same meaning for purposes hereof
as they do for purposes of the Lease.
6. TRUSTEE'S EXCULPATION. This Amendment to Lease is executed by
---------------------
American National Bank and Trust Company of Chicago, not personally but solely
as Trustee as aforesaid. All covenants and conditions to be performed hereunder
by American National Bank and Trust Company of Chicago are undertaken by it
solely as Trustee, as aforesaid, and not individually, and no personal liability
shall be asserted or enforced against American National Bank and Trust Company
of Chicago, the beneficiaries thereof, or their agents or representatives by
reason of any of the covenants, statements, representations or warranties
contained in this Amendment to Lease.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to Lease
as of the day and year first above written.
LANDLORD: TENANT:
-------- -------
AMERICAN NATIONAL BANK AND AMERICAN SCHOOL OF
TRUST COMPANY OF CHICAGO, not PROFESSIONAL PSYCHOLOGY, INC.,
personally but as Trustee as aforesaid an Illinois corporation
By: /s/ X.X Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------- ------------------------------
Its: VP Its: Chairman
------------------------ --------------------------
3
APPENDIX A-5
------------
THE ADDITIONAL SPACE
--------------------
[FLOOR PLAN TO BE ATTACHED]
X-0
XXXXXXXX X-0
XXXXX 000
5,655 RSF
American Schools of Professional Psychology
[FLOOR PLAN]
THE XXXX XXXX COMPANY
February 22, 1995
Xx. Xxxxxxx Xxxxxxxxx
ASPP/ISPP
Suite 410
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
RE: MARCH BILLING
Dear Xx. Xxxxxxxxx:
As you know, the commencement date of your lease is March 26, 1995.
Accordingly, you will soon receive a March rent statement which reflects pro-
rated xxxxxxxx as follows:
RENT
----
$9,825.06/Month x 6 Days of 31 = $1,903.56
OPERATING ADJUSTMENT RENT
-------------------------
1995 Operating Costs are projected at $2,141,800. Therefore, your monthly
Operating Proportionate Share will be $16,154. ($2,141,800 x 9.0507%
divided by 12 months).
March Proration: $16,154 x 6 Days of 31 = $3,127
TAX ADJUSTMENT RENT
-------------------
1995 Taxes are projected at $2,785,256. Therefore, your monthly Tax
Proportionate Share will be $21,007 ($2,785,256 x 9.0507% divided by 12
months).
March Proration: $21,007 x 6 Days of 31 = $4,066.
Please review these numbers and call me if you have any questions.
Sincerely,
THE XXXX XXXX COMPANY
Xxxxx Xxxxx
General Manager
