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EXHIBIT 10.6
BRITANNICA CENTRE LEASE
MIDWEST BANK & TRUST COMPANY
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TABLE OF CONTENTS
Page
1. Rent......................................................... 2
2. Additional Rent.............................................. 2
3. Services..................................................... 4
4. Landlord's Title............................................. 6
5. Certain Rights Reserved to Landlord.......................... 6
6. [Intentionally Deleted]...................................... 6
7. Waiver of Claims............................................. 6
8. Holding Over................................................. 7
9. Assignment and Subletting.................................... 7
10. Condition of Premises........................................ 8
11. Alterations.................................................. 8
12. Use of Premises.............................................. 10
13. Repairs...................................................... 14
14. Untenantability.............................................. 15
15. Eminent Domain............................................... 16
16. Landlord's Remedies.......................................... 16
17. Insurance.................................................... 19
18. Subordination of Lease....................................... 20
19. Sale of Premises by Landlord................................. 22
20. Estoppel Certificate......................................... 22
21. Notices...................................................... 22
22. Miscellaneous................................................ 23
23. Substitution of Premises..................................... 25
24. Limitation on Landlord's Liability........................... 25
25. Brokers...................................................... 25
26. Security Deposit............................................. 26
27. Mortgagee Protection......................................... 26
28. Construction................................................. 26
29. Termination Option........................................... 26
30. Additional Condition......................................... 27
31. Maintenance by Landlord...................................... 27
32. Landlord Default............................................. 27
33. Tenant Improvement Financing................................. 27
Exhibit A - Floor Plan
Exhibit B - Workletter
Exhibit C - Termination Fee Schedule
Exhibit D - Rules and Regulations
Exhibit E - Financing Documents
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BRITANNICA CENTRE LEASE
THIS LEASE is made in Chicago, Illinois, dated as of May 1, 1994.
Chicago Title and Trust Company, as Trustee under Trust Agreement dated
November 2, 1977, and known as Trust No. 1070932 ("Landlord"), hereby leases
unto Midwest Bank & Trust Company, an Illinois corporation ("Tenant"), and
Tenant accepts, that certain space (the "Premises") consisting of approximately
9,170 square feet, comprised of 5,292 square feet on the ground floor and 3,878
square feet on the lower level, as shown on the floor plan attached as Exhibit
A to this Lease and made a part hereof, of the building (the "Building")
situated on real estate commonly known as 000 Xxxxx Xxxxxxxx Xxxxxx (xxx
"Xxxx"), Xxxxxxx, Xxxxxxxx for a term of fifteen (15) years (the "Term")
commencing on the Commencement Date (as hereinafter defined), and ending on the
Expiration Date (as hereinafter defined), unless sooner terminated as provided
herein, to be occupied and used by Tenant for banking and related activities
including, without limitation, financial planning, counseling and investment
services, insurance and trust business, and general office and administrative
purposes, and for no other purpose.
As used herein, the Commencement Date shall mean May 1, 1994,
notwithstanding the fact that Landlord and Tenant may actually execute this
Lease at a later date. Landlord and Tenant acknowledge that this Lease shall
not be executed until such time as (i) Landlord and Tenant shall have approved
the final Plans for the construction of the Tenant Work (as such terms are
defined in the Workletter attached hereto as Exhibit B), and (ii) Landlord's
lender shall have approved this Lease and delivered, or agreed to deliver, a
non-disturbance agreement reasonably acceptable to Tenant. If the foregoing
matters do not occur, despite the parties' reasonable, good faith efforts to
cause them to occur, this Lease shall not be executed and shall be of no force
or effect whatsoever. Upon the full execution of this Lease and the occurrence
of the Commencement Date, Tenant's existing lease of space in the Building (the
"Existing Lease") shall be terminated and neither party shall have any
liability to the other under the Existing Lease, except for those liabilities
accruing prior to such termination date. As used herein, the Expiration Date
shall mean the date immediately prior to the fifteenth (l5th) anniversary of
the Commencement Date. Upon the full execution of this Lease, Landlord and
Tenant shall make an adjustment of Tenant's rental obligations under the
Existing Lease and this Lease for the period beginning on May 1, 1994 and
ending on the date of such execution so that Tenant shall only be liable for
Rent due and payable under this Lease for such period and, to the extent that
Tenant has paid more for such period under the Existing Lease than would have
otherwise been due under this Lease, Landlord shall credit such excess against
Rent next coming due under this Lease.
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In Consideration Thereof, the Parties Covenant and Agree:
1. RENT. Tenant shall pay to Landlord at the Office in the Building of
Landlord or at such other place as Landlord may designate, annual base rent
("Base Rent"), in equal monthly installments, in accordance with the following
schedule:
LEASE YEAR ANNUAL BASE RENT MONTHLY INSTALLMENTS
1 $158,004.00 $13,167.00
2 161,954.00 13,496.17
3 165,904.00 13,825.33
4 169,854.00 14,154.50
5 173,804.00 14,483.67
6 177,755.00 14,812.92
7 181,705.00 15,142.08
8 185,655.00 15,471.25
9 189,605.00 15,800.42
10 193,555.00 16,129.58
11 197,505.00 16,458.75
12 201,455.00 16,787.92
13 205,405.00 17,117.08
14 209,355.00 17,446.25
15 213,305.00 17,775.42
As used herein, "Lease Year" shall mean the twelve (12) month period commencing
on the Commencement Date and each successive twelve (12) month period
thereafter commencing on each anniversary of the Commencement Date.
Base Rent shall be paid without any abatement, set-off or deduction
whatsoever (except as may be expressly provided in this Lease), in advance on
the first day of each and every calendar month during the Term and at the
current rate for fractions of a month if the Term shall be terminated on any
day other than the last day of any month. It is the intention of the parties
that, to the fullest extent permitted by law, Tenant's covenant to pay Rent
shall be independent of all other covenants contained in this Lease. Unpaid
rent shall bear interest at the lesser of (i) the then current prime rate of
interest established by The First National Bank of Chicago, or its successor,
or (ii) the maximum rate permitted by law, from the expiration of any
applicable cure period until paid. Interest charges for unpaid rent shall be
considered Additional Rent.
2. ADDITIONAL RENT. In addition to paying the Base Rent specified in
Section 1 hereof, Tenant shall pay as "Additional Rent" the amounts determined
under this Section 2. The Base Rent, the Additional Rent and all other amounts
payable by Tenant hereunder, are sometimes herein collectively referred to as
the "Rent." All amounts due under this Section as Additional Rent shall be
payable for the same periods and in the same manner, time and place as the
Base Rent. Any amounts payable by Tenant hereunder in connection with the
construction
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of improvements or alterations to the Premises shall be deemed Additional Rent.
Without limitation on other obligations of Tenant which shall survive the
expiration or earlier termination of the Term, the obligations of Tenant to pay
the Additional Rent provided for in this Section 2 shall survive the expiration
of the Term. For any partial Calendar Year (hereinafter defined), Tenant shall
be obligated to pay only a pro rata share of the Additional Rent, based on the
number of the days of the Term falling within such Calendar Year.
A. DEFINITIONS. As used in this Section 2, the terms:
(i) "Base Year" shall mean calendar year 1994;
(iI) "Calendar Year" shall mean each calendar year (i.e.
January 1 through December 31) in which any part of the Term falls,
through and including the year in which the Term expires;
(III) "Tenant's Proportionate Share" shall mean 1.7455%,
being the percentage calculated by dividing 525,350 (being the rentable
area of the Building) into the rentable area contained in the Premises.
(iv) "Taxes" shall mean all real estate taxes and
assessments, special or otherwise, levied or assessed upon or with
respect to the Land and the Building and ad valorem taxes for any
personal property used in connection therewith which are payable during
any Calendar Year during the Term. Should the State of Illinois, or any
other governmental authority having jurisdiction over the Land or the
Building, (a) impose a tax, assessment, charge or fee, or increase a then
existing tax, assessment, charge or fee, which Landlord shall be required
to pay, either by way of substitution for such real estate taxes and ad
valorem personal property taxes, or in addition to such real estate taxes
and ad valorem personal property taxes, or (b) impose an income or
franchise tax or a tax on rents in substitution for or as a supplement to
a tax levied against the Land or the Building or the personal property
used in connection with the Land or the Building, all such taxes,
assessments, fees or charges (hereinafter defined as "Replacement Taxes")
shall be deemed to constitute Taxes hereunder. "Taxes" shall also
include all fees and costs incurred by Landlord in seeking to obtain a
reduction of, or a limit on the increase in, any Taxes, regardless of
whether any reduction or limitation is obtained, but only if Landlord
seeks such reduction or limitation in good faith with a reasonable belief
of success. Any refund or reduction obtained by Landlord shall benefit
the tenants in occupancy at that time (regardless of the year for which
such refund or reduction was obtained) and Landlord shall credit against
Tax Adjustment Amounts (as defined below) next payable Tenant's
Proportionate Share of any refund or reduction of Taxes in the manner
described in Section 2.B. below. Except as hereinabove provided with
regard to Replacement Taxes, Taxes shall not include any inheritance,
estate, succession, transfer, gift, franchise, net income or capital
stock tax.
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B. TAX ADJUSTMENT. Beginning on May 1, 1996, Tenant shall pay to
Landlord as Rent, in addition to the Base Rent required by Section 1
hereof, an amount ("Tax Adjustment Amount") equal to Tenant's
Proportionate Share of the amount by which the total Taxes paid during
each Calendar Year exceeds the amount of the Taxes paid with respect to
the Base Year. The Tax Adjustment Amount with respect to each Calendar
Year shall be paid in monthly installments, in an amount reasonably
estimated from time to time by Landlord (based upon the most recent tax
bills and tax assessment information available) and communicated by
written notice to Tenant. Landlord shall cause to be kept books and
records showing Taxes in accordance with an appropriate system of accounts
and accounting practices consistently maintained. As promptly as
practicable following the issuance of the second installment tax xxxx in
each Calendar Year, Landlord shall cause its accountants to review such
books and records (and to do such other work as may be necessary to enable
such accountants to give the statement hereinafter required) and to
deliver to Landlord their statement specifying the amount of Taxes for
such Calendar Year for the Building. After receipt of such statement,
Landlord shall cause the amount of the Tax Adjustment Amount for such
calendar year to be computed based on Taxes due and payable in such
Calendar Year for the Building as specified in such accountant's statement
and Landlord shall deliver to Tenant a statement of such amount, together
with copies of the applicable tax bills, and Tenant shall pay any
deficiency to Landlord as shown by such statement within thirty (30) days
after receipt of such statement. If the total of the estimated monthly
installments paid by Tenant during any Calendar Year exceeds the actual
Tax Adjustment Amount due from Tenant for such Calendar Year, at
Landlord's option, such excess shall be either credited against payments
next due hereunder or refunded by Landlord within thirty (30) days,
provided Tenant is not then in Default hereunder. The amount of any
refund of Taxes received by Landlord shall be credited against Taxes for
the year in which such refund is received. In determining the amount of
Taxes for any year, the amount of special assessments to be included shall
be limited to the amount of the installment (plus any interest payable
thereon) of such special assessment required to be paid during such year
if the Landlord had elected to have such special assessment paid over the
maximum period of time permitted by law. All references to Taxes "for" a
particular year shall be deemed to refer to Taxes paid during such year
without regard to when such Taxes are assessed or levied.
3. SERVICES. Landlord shall provide:
A. HEAT AND AIR CONDITIONING daily from 8 a.m. to 5 p.m., Saturdays, 8
a.m. to 1 p.m., Sundays and holidays excepted, whenever heat or air
conditioning shall, in Landlord's reasonable judgement, be required for
the comfortable occupation and use of the Premises. After hours heating
and air conditioning shall be provided to Tenant at the prevailing hourly
rates charged by Landlord in the Building, upon 48 hours prior notice.
B. WATER from the City of Chicago mains for drinking, lavatory and
toilet purposes, drawn through fixtures installed by Landlord or by Tenant
with Landlord's written consent. Tenant shall pay, at rates fixed by
Landlord, for water used for special
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use air conditioning (such as a separate water cooled air conditioning
unit), or any other special purpose other than drinking, lavatory and
toilet purposes.
C. ELECTRICITY. Landlord shall install a meter for the measurement of
consumption of electricity to the Premises. Tenant shall pay all charges
for electricity consumed on the Premises. At no time shall Tenant be
charged for electrical usage at rates in excess of the charges for such
service authorized by the I.C.C.
D. JANITORIAL SERVICE in and about the Building, but not to the
Premises, Saturdays, Sundays and holidays excepted. Tenant shall provide
its own janitorial service for the Premises. Such janitorial service
shall be subject to Landlord's reasonable supervision but at Tenant's sole
responsibility. Tenant shall not provide any janitorial service in the
Premises except through a janitorial contractor or employees who are, and
shall continuously be, in each and every instance reasonably satisfactory
to Landlord.
Landlord does not warrant that any of the services above mentioned will
be free from interruptions caused by war, insurrection, civil commotion,
riots, acts of God, or the enemy or Government action, repairs, renewals,
improvements, alterations, strikes, lockouts, picketing, whether legal or
illegal, accidents, inability of Landlord to obtain fuel or supplies, or
any other cause or causes beyond the reasonable control of Landlord. Any
such interruption of service shall never be deemed an eviction or
disturbance of Tenant's use and possession of the Premises or any part
thereof, or render Landlord liable to Tenant for damages, or relieve
Tenant from performance of Tenant's obligations under this Lease.
Notwithstanding the foregoing, in the event that Landlord fails to furnish
any service required under this Section 3, and such failure was caused by
Landlord or was within Landlord's reasonable control, and such failure
materially interferes with Tenant's business operation for more than five
(5) business days after Landlord receives notice of such condition, then
all Rent, including Tax Adjustment Amount, shall xxxxx from the first
(1st) day of such failure until service is restored; provided that, if
such service is restored within such five (5) day period, there shall be
no abatement. If such condition exists continually without restoration of
the service for one hundred eighty (180) days, Tenant shall have the right
to terminate this Lease upon written notice to Landlord.
4. LANDLORD'S TITLE. Landlord's Title is and always shall be paramount
to the title of Tenant, and nothing herein contained shall empower Tenant to
do any act which can, shall or may encumber the title of Landlord.
5. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the
following rights: (A) upon sixty (60) days prior written notice to Tenant, to
change the name or street address of the Building without notice or liability
of Landlord to Tenant; (B) to install and maintain a sign or signs on the
exterior of the Building provided such signs do not interfere with Tenant's
signage which has been approved by Landlord; (C) to have access for Landlord
and the other tenants of the Building to any mail chutes located on the
Premises according to the rules of the United States Postal Service and subject
to Tenant's reasonable security requirements; (D) to
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reasonably approve all sources furnishing sign painting and lettering used on
the Premises; (E) during the last ninety (90) days of the Term or any part
thereof, if during or prior to that time Tenant vacates the Premises (for more
than thirty (30) days, subject to matters outside Tenant's reasonable control),
to decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy; (F) to grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building, provided that, so long as
Tenant is not in Default under this Lease, Landlord shall not lease space to a
"retail banking operation" anywhere in the Building; provided further, however,
that for the purpose of this clause (F), "retail banking operation" shall refer
to the business of actual banking activities, i.e., deposits, withdrawals,
account transfers, lending and other similar activities which the public
carries on with Bank tellers at the Premises, and such term shall not include
the other services described on page 1 of this Lease, such as financial
planning, counseling and investment services and insurance and trust business;
(G) to take any and all measures, including inspections, repairs, alterations,
additions and improvements to the Premises or to the Building, as may be
necessary or desirable for the safety, protection or preservation of the
Premises or the Building or Landlord's interests, or as may be necessary or
desirable in the operation of the Building.
Landlord may enter upon the Premises during regular business hours with
reasonable advance notice and may exercise any or all of the foregoing rights
hereby reserved without being deemed guilty of an eviction or disturbance of
Tenant's use or possession and without being liable in any manner to Tenant.
Notwithstanding the foregoing, in exercising its rights reserved under this
Section 5, Landlord shall not unreasonably interfere with Tenant's business
operation.
6. [Intentionally Deleted]
7. WAIVER OF CLAIMS. To the extent permitted by law, Tenant releases
Landlord, Landlord's beneficiaries, and their agents and employees from, and
waives, all claims for damage to person or property sustained by Tenant or any
occupant of the Building or Premises resulting from the Building or Premises or
any part of either or any equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the Building, or resulting directly or
indirectly from any act or neglect of any tenant or occupant of the Building or
of any other person, including Landlord's agents and employees, but excluding
claims for personal injury caused by negligent acts of Landlord, Landlord's
beneficiaries, or their agents, or employees. This Section 7 shall apply
especially, but not exclusively, to the flooding of basements or other
subsurface areas, and to damage caused by refrigerators, sprinkling devices,
air conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply equally whether any such
damage results from the act or neglect of Landlord or of other tenants,
occupants or servants in the Building or of any other person, and whether such
damage be caused or result from any thing or circumstance above mentioned or
referred to, or any other thing or circumstance whether of a like nature or of
a wholly different nature. If any such damage, whether to the Premises or to
the Building or any part thereof, or whether to Landlord or to other tenants in
the Building, results from any act or neglect of Tenant, Landlord may, at
Landlord's option, repair such damage and Tenant shall, upon demand by
Landlord, reimburse Landlord
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forthwith for the total cost of such repairs but only if, and to the extent
that, such cost is not covered (or would not be covered) by insurance Landlord
is required to carry pursuant to the terms of this Lease. Tenant shall not be
liable for any damages caused by its act or neglect if Landlord or a tenant has
recovered the full amount of the damages from insurance and the insurance
company has waived in writing its right of subrogation against Tenant. All
property belonging to Tenant or any occupant of the Premises that is in the
Building or the Premises shall be there at the risk of Tenant or such other
person only, and Landlord shall not be liable for damage thereto or theft or
misappropriation thereof.
To the extent permitted by law, Landlord releases Tenant and its agents
and employees from, and waives, all claims for damage to person or property
sustained by Landlord resulting directly or indirectly from any act or neglect
of any tenant or occupant of the Building or of any other person, including
Tenant and its agents and employees, but excluding claims for personal injury
caused by negligent acts of Tenant or its agents or employees.
8. HOLDING OVER. If Tenant retains possession of the Premises or any
part thereof after the termination of the Term by lapse of time or otherwise,
Tenant shall pay Landlord rent at double the then current rate of Rent
(including Additional Rent) specified in Sections 1 and 2, for the time Tenant
thus remains in possession, and in addition thereto and if permitted under law,
Tenant shall pay Landlord all damages sustained by reason of Tenant's retention
of possession. If Tenant remains in possession of the Premises, or any part
thereof, after the termination of the Term by lapse of time or otherwise, such
holding over shall, constitute a tenancy at will. The provisions of this
Section do not waive Landlord's rights of reentry or any other right hereunder.
9. ASSIGNMENT AND SUBLETTING. Unless Tenant shall have first procured
Landlord's written consent, which shall not be unreasonably withheld or
delayed, Tenant shall not (A) assign or convey this Lease or any interest under
it; (B) allow any transfer hereof or any lien upon Tenant's interest by
operation of law; (C) sublet the Premises or any part thereof; or (D) permit
the use or occupancy of the Premises or any part thereof by anyone other than
Tenant. The consent by Landlord to any transfer, assignment or subletting
shall not constitute a waiver of the necessity of Landlord's consent to any
subsequent attempted transfer, assignment or subletting. Tenant shall pay to
Landlord as additional Rent, immediately upon receipt thereof, after deducting
therefrom Tenant's reasonable costs and expenses incurred in connection with
such subletting or assignment, a sum equal to fifty percent (50%) of any rent
or other consideration paid to Tenant by any subtenant or assignee in excess of
the sum of Base Rent plus Additional Rent then payable to Landlord pursuant to
the provisions of this Lease, plus any other profit or gain realized by Tenant
from such subleasing or assignment. Tenant shall pay Landlord's reasonable
costs and expenses, including attorney's fees, incurred in connection with the
processing of any request for Landlord's consent to an assignment or
subletting.
Notwithstanding anything to the contrary in this Section 9, the original
named Tenant hereunder may, so long as said original named Tenant remains
primarily liable hereunder, assign this Lease or sublet the Premises or any
portion thereof, upon prior notice to Landlord, but
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without Landlord's consent, to any of the following: (i) any person,
corporation or other entity which controls or is controlled by or under common
control with Tenant; (ii) any corporation resulting from a merger or
consolidation with Tenant; or (iii) any person, corporation or other entity
which acquires all or substantially all of the assets or stock of Tenant as a
going concern of the business that is being conducted on the Premises; provided
that, in each case, the assignee assumes in full the obligations of Tenant
under this Lease. Any such entity to which the Lease is assigned or which so
sublets is herein sometimes referred to as a "Tenant Affiliate".
10. CONDITION OF PREMISES. Tenant's taking possession shall be conclusive
evidence as against Tenant that the Premises were in good order and
satisfactory condition when Tenant took possession, subject to punch-list items
to be completed in accordance with the Workletter. No promise of Landlord to
alter, remodel or improve the Premises or the Building and no representation
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, unless the same is contained in this Lease or the
Workletter, or made a part hereof. This Lease does not grant any rights to
light or air over property, except over public streets kept open by public
authority. At the termination of this Lease by lapse of time or otherwise,
Tenant shall return the Premises in as good condition as when Tenant took
possession, ordinary wear and loss by fire excepted, failing which Landlord may
restore the Premises to such condition and Tenant shall pay the cost thereof.
Tenant may remove any floor covering laid by Tenant, provided (A) Tenant also
removes all nails, tacks, paper, glue, bases and other vestiges of the floor
covering, and restores the floor surface to the condition existing before such
floor covering was laid, or (B) Tenant pays to Landlord, upon request, the cost
of restoring the floor surface to such condition. If Tenant does not remove
Tenant's floor coverings, from the Premises prior to the end of the term,
Tenant shall be conclusively presumed to have abandoned the same and title
thereto shall thereby pass to Landlord without payment or credit by Landlord to
Tenant.
11. ALTERATIONS. This Section 11 does not apply to the Tenant Work to
be performed pursuant to the Workletter attached hereto. Tenant shall not make
any alterations in, or additions to, the Premises without Landlord's advance
written consent in each and every instance, which consent shall not be
unreasonably withheld or delayed. Landlord's decision to refuse such consent
shall be conclusive. In the event Landlord consents to such alterations or
additions, and such work affects the structure or integrity of the Building or
any Building Systems, circuitry or wiring, Landlord reserves the right to cause
the work to be performed by Landlord's designated general contractor and
subcontractors. Notwithstanding the foregoing, subcontracts in excess of $5,000
shall be competitively bid among at least three (3) subcontractors (where
available) and Tenant may select a subcontractor which is not the lowest
bidder. Landlord and Tenant shall agree upon an approved list of
subcontractors prior to bidding. If Landlord does not exercise the right to use
its designated general contractor, all contractors and subcontractors selected
by Tenant shall be subject to Landlord's reasonable approval. Before
commencement of the work, Tenant shall furnish Landlord, for its prior written
approval, with architectural plans and specifications certified by a licensed
architect or engineer reasonably acceptable to Landlord. If Landlord permits
Tenant to hire its own contractors for the performance of the work, then prior
to the commencement of the work or delivery of any materials onto the Premises
or into the Building, Tenant shall furnish Landlord with the names and
addresses of contractors, copies of contracts,
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necessary permits and indemnification in form and amount satisfactory to
Landlord and, upon completion of the work, waivers of lien against any and all
claims, costs, damages, liabilities and expenses which may arise in connection
with the alterations or additions. All additions and alterations shall be
installed in a good, workmanlike manner and only materials consistent with the
quality of the materials used in the initial build-out of the Premises shall be
used. Whether Tenant furnishes Landlord the foregoing or not, Tenant hereby
agrees to defend and hold Landlord harmless from any and all liabilities of
every kind and description which may arise out of or be connected in any way
with said alterations or additions. Before commencing any work in connection
with alterations or additions, Tenant shall furnish Landlord with certificates
of insurance from the general contractor and all subcontractors performing
labor or furnishing materials, insuring Landlord, Landlord's beneficiary and
Metropolitan Properties of Chicago, Inc. against any and all liabilities which
may arise out of or be connected in any way with said additions or alterations.
Tenant shall pay the cost of all such alterations and additions and also the
cost of decorating the Premises occasioned by such alterations and additions.
Upon completing any alterations or additions, Tenant shall furnish Landlord
with contractors' affidavits and full and final waivers of lien covering all
labor and materials expended and used. All alterations and additions shall
comply with all insurance requirements and with all ordinances and regulations
of the City of Chicago or any department or agency thereof and with the
requirements of all statutes and regulations of the State of Illinois and the
United States or of any department or agency thereof. If Landlord permits
Tenant to hire its own contractors for the work, then, at Landlord's request,
Tenant shall permit Landlord or its designated agent or contractor to supervise
construction operations in connection with alterations or additions and, if the
work being performed affects the structure or integrity of the Building or any
Building systems, circuitry or wiring, Tenant shall pay the reasonable costs
incurred in connection with such supervision, based upon reasonable hourly
rates, not to exceed 10% of the cost of such work in any event. All additions,
hardware, non-trade fixtures and all improvements, temporary or permanent, in
or upon the Premises, whether placed there by Tenant or by Landlord, shall,
unless Landlord requests their ultimate removal at the time of, and in
connection with, granting its consent to the installation thereof, become
Landlord's property and shall remain upon the Premises at the termination of
this lease by lapse of time or otherwise without compensation or allowance or
credit to Tenant. If Tenant does not remove said additions, hardware,
non-trade fixtures and improvements which were required by Landlord to be
removed, Landlord may remove the same and Tenant shall pay the cost of such
removal to Landlord upon demand. Tenant shall remove Tenant's furniture,
machinery, safe or safes, trade fixtures and other items of personal property
of every kind and description from the Premises prior to the end of the Term,
however ended. If not so removed, Landlord may request (in writing) their
removal, and if Tenant does not remove them, Landlord may do so and Tenant
shall pay the costs of such removal to Landlord upon demand. If Landlord does
not request their removal, all such items shall be conclusively presumed to
have been conveyed by Tenant to Landlord under this Lease as a xxxx of sale
without further payment or credit by Landlord to Tenant. For the purposes of
this Lease, all amounts owing to the Landlord for any work shall be considered
Additional Rent, and subject to the same terms and conditions.
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Notwithstanding the foregoing, work which (i) will be performed wholly
within the Premises, (ii) will not affect the structure of the Building or the
heating, air-conditioning, ventilating, electrical, mechanical or plumbing
systems or circuitry, and (iii) will cost less than $7,500.00 in any one
instance, may be performed by Tenant upon prior written notice to Landlord
(specifying the nature of the work involved), but without Landlord's consent;
provided, however, that Tenant shall furnish Landlord with the names of all
contractors performing such work and Tenant shall cause all such contractors to
procure the insurance otherwise required under this Paragraph 11. In addition,
minor cosmetic work, such as picture hanging and minor furniture additions or
relocations shall not be subject to any of the requirements of this Section.
12. USE OF PREMISES.
A. Tenant shall occupy and use the Premises during the Term for the
purpose above specified and for no other purposes. Tenant and its
employees shall observe the Building rules and regulations. Landlord
shall not discriminate against Tenant in the enforcement of any rules or
regulations.
B. Tenant shall not exhibit, sell or offer for sale, on the Premises
or in the Building, any article or thing except those articles and things
essentially connected with the stated use of the Premises (including Bank
promotional items) without the advance written consent of Landlord, which
shall not be unreasonably withheld or delayed.
C. Tenant will not make or permit to be made any use of the Premises
which is forbidden by public law, ordinance of governmental regulation or
which may be dangerous to life, limb or property, or which may invalidate
or increase the premium cost of any policy of insurance carried on the
Building or covering its operations.
D. Tenant shall not display, inscribe, print, paint, maintain or affix
on any place in or about the Building (and outside of the Premises) any
sign, notice, legend, direction, figure or advertisement, except as
designated by Landlord and on the directory boards, and then only such
name or name and matter, and in such color, size, style, place and
material, as shall first have been approved by Landlord in writing, which
approval shall not be unreasonably withheld or delayed. Landlord's
acceptance of any name for listing on the Building Directory will not be
deemed, nor will it substitute for, Landlord's consent, as required by
this Lease, to any sublease, assignment, or other occupancy of the
Premises. The terms of this Paragraph shall not affect matters approved
by Landlord in the Plans for the Tenant Work. With respect to Tenant's
signage inside the Premises and not subject to Paragraph E below, Tenant
shall have the right to install or display signage consistent with that
installed or displayed in first class banking operations in office
buildings in the downtown Chicago area.
E. 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
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business, profession or activities, and shall not use the name of the
Building for any purpose other than that of the business address of
Tenant in connection with advertising its business operation at this
location, and shall never use any picture or likeness of the Building in
any circulars, notices, advertisements or correspondence without
Landlord's express consent in writing (which consent may be withheld in
Landlord's sole and absolute discretion). Tenant shall never affix any
signage to the windows of the Premises. Tenant may display interior
window signage which has been approved in writing by Landlord (which
approval shall not be unreasonably withheld or delayed), so long as such
signage is hung or maintained a reasonable distance back from the window.
Any Tenant signage to be displayed or affixed to the exterior of, or
outside of, the Building, shall be subject to Landlord's approval, which
shall not be unreasonably withheld or delayed. The terms of this
Paragraph shall not affect matters approved by Landlord in the Plans for
the Tenant Work.
At Landlord's sole cost, Landlord shall remove Tenant's existing
exterior signage on the Xxxxxxx Boulevard and Michigan Avenue sides of
the Building. Any new exterior signage desired by Tenant shall be
subject to Landlord's approval, which shall not be unreasonably withheld
or delayed, and Landlord may condition its approval on such signage being
of a quality consistent with first floor banking operations in other
downtown office buildings. Any such exterior signage shall be
manufactured and installed at Tenant's sole cost and Tenant shall also be
obligated, at its sole cost, to remove such signage upon the termination
of this Lease and to restore any affected Building area to its condition
prior to the installation of such signage.
F. Tenant shall not obstruct, or use for storage, or any purpose other
than ingress and egress, the sidewalks, entrances, passages, courts,
corridors, vestibules, halls, elevators and stairways of the Building.
G. No bicycle or other vehicle and no dog or other animal or bird shall
be brought or permitted to be in the Building or any part thereof. This
Paragraph shall not apply to wheelchairs or guide dogs.
H. Tenant shall not make or permit any noise or odor that is
objectionable to other occupants of the Building to emanate from the
Premises, and shall not create or maintain a nuisance therein, and shall
not disturb, solicit or canvass any occupant of the Building, and shall
not do any act tending to injure the reputation of the Building.
I. Tenant shall not install any piano, phonograph, or other musical
instrument, or radio or television set in the Building, or any antennae,
aerial wires or other equipment inside or outside the Building, without,
in each and every instance, prior approval in writing by Landlord, which
shall not be unreasonably withheld or delayed. The use thereof, if
permitted, shall be subject to control by Landlord to the end that others
shall not be disturbed or annoyed.
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J. Tenant shall not place or permit to be placed any article of any
kind on the window ledges except for those matters approved in writing by
Landlord and placed and maintained in a first-class and professional
manner and replaced promptly when they are no longer in such condition,
and shall not throw or permit to be thrown or dropped any article from
any window of the Building.
K. Tenant shall not undertake to regulate any thermostat other than a
self-operable thermostat in the Premises, and shall not waste water by
tying, wedging or otherwise fastening open any faucet.
L. Except as shown on the approved Tenant's Plans, no additional locks
or similar devices shall be attached to any door or window. No keys for
any door other than those provided by Landlord shall be made. If more
than two keys for one lock are desired by Tenant, Landlord may provide
the same upon payment by Tenant. Upon termination of this Lease or of
Tenant's possession, Tenant shall surrender all keys of the Premises and
shall make known to Landlord the explanation of all combination locks on
safes, cabinets and vaults remaining on the Premises.
M. Tenant shall be responsible for the locking of doors and the
closing of transoms and windows in and to the Premises.
N. If Tenant desires telegraphic, telephonic, burglar alarm or signal
service, Landlord will, upon request, direct where and how connections
and all wiring for such services shall be introduced and run. Without
such directions, no boring, cutting or installation of wires or cables is
permitted.
O. If Tenant desires, and if Landlord permits (which permission shall
not be unreasonably withheld or delayed), blinds, shades, awnings, or
other form of inside or outside window covering, or window ventilators or
similar devices, they shall be furnished, installed and maintained at the
expense of Tenant and must be of such shape, color, material and make as
approved by Landlord.
P. All persons entering or leaving the Building between the hours of 7
p.m. and 7 a.m., Monday through Friday, or at any time on Saturdays,
Sundays or holidays, may be required to identify themselves to a watchman
by registration or otherwise and to establish their rights to enter or
leave the Building. Landlord may exclude or expel any peddler, solicitor
or beggar at any time.
Q. Tenant shall not overload any floor. Landlord may direct the
routing and location of safes and other heavy articles. Safes, furniture
and all large articles shall be brought through the Building and into the
Premises at such times and in such manner as Landlord shall direct and at
Tenant's sole risk and responsibility. Tenant shall list all furniture,
equipment and similar articles to be removed from the Building, and the
list
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must be approved at the Office of the Building or by a designated person
before Building employees will permit any article to be removed.
R. Unless Landlord gives advance written consent in each and every
instance, Tenant shall not install or operate any steam or internal
combustion engine, boiler, machinery, refrigerating or heating device or
air conditioning apparatus in or about the Premises, or carry on any
mechanical business therein, or use the Premises for housing
accommodations or lodging or sleeping purposes, or do any cooking
therein, or use any illumination other than electric light, or use or
permit to be brought into the Building any inflammable oils or fluids
such as gasoline, kerosene, naphtha and benzine, or any explosives or
other articles deemed extra hazardous to life, limb or property.
Notwithstanding the foregoing, Tenant shall be permitted to have a
refrigerator and microwave oven in a separate employee area in the
Premises.
S. Tenant shall not place or allow anything to be against or near the
glass of partitions or doors of the Premises which may materially
diminish the light in, or be unsightly from, halls or corridors.
T. Tenant shall not install in the Premises any equipment which uses a
substantial amount of electricity without the advance written consent of
Landlord which shall not be unreasonably withheld or delayed. Tenant
shall ascertain from Landlord the maximum amount of electrical current
which can safely be used in the Premises, taking into account the
capacity of the electric wiring in the Building and the Premises and the
needs of other tenants in the Building and shall not use more than such
safe capacity. Landlord's consent to the installation of electric
equipment shall not relieve Tenant from the obligation not to use more
electricity than the capacity which has been consented to by Landlord.
U. Except as may be shown on the approved Tenant's Plans or as
otherwise approved by Landlord, Tenant shall not lay linoleum or other
similar floor covering so that such floor covering shall come in direct
contact with the floor of the Premises, and if linoleum or other similar
floor covering is used, an interliner of builder's deadening felt shall
first be affixed to the floor by paste or other material soluble in
water. The use of cement or other similar material is prohibited.
V. In addition to all other liabilities for breach of any covenant of
this Section 12, Tenant shall pay to Landlord all damages caused by such
breach and shall also pay to Landlord an amount equal to any increase in
insurance premium or premiums caused by such breach. The violation of
any covenant of this Section 12 may be restrained by injunction.
W. Tenant shall comply, and shall cause its employees, agents,
clients, customers, guests and invitees to comply, with the rules and
regulations attached hereto as Exhibit D, and such reasonable revised or
additional rules and regulations adopted by
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Landlord during the Term (the "Rules and Regulations"). All such Rules
and Regulations shall be applied generally to all tenants of the
Building. Notwithstanding anything to the contrary contained in the
Rules and Regulations, to the extent of any express or implied conflict
or inconsistency between the terms, provisions and intent of this Lease
and the terms, provisions and intent of the Rules and Regulations, the
terms, provisions and intent of this Lease shall govern and control.
13. REPAIRS. Subject to the provisions of Section 11, Tenant shall, at
Tenant's own expense, keep the Premises in good order, condition and repair
during the Term, including the replacement of all broken glass with glass of
the same size and quality, with signs thereon, under the supervision and with
the approval of Landlord. If Tenant does not make repairs promptly and
adequately, Landlord may, but need not, (after giving Tenant written notice of
its intention to perform repairs and a reasonable opportunity for Tenant to do
so first), make repairs and Tenant shall pay promptly the cost thereof. At any
time or times, 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 or
other facilities, all without any liability to Tenant by reason of
interference, inconvenience or annoyance. Notwithstanding the foregoing, in
undertaking any work permitted or required under this Lease, Landlord shall
make all reasonable efforts to minimize interference with Tenant's business
operation. If, despite such efforts, there is material interference with
Tenant's business such that the Premises are rendered untenantable for their
intended use, Landlord shall perform such work during non-business hours or, at
Landlord's election, Tenant shall be entitled to an abatement of Rent for the
period during which such material interference and untenantability exist.
Landlord shall not be liable to Tenant for any expense, injury, loss or damage
resulting from work done in or upon, or the use of, any adjacent or nearby
building, land, street or alley unless caused by Landlord's intentional act.
Tenant shall pay Landlord for overtime and for any other expense incurred in
the event repairs, alterations, decorating or other work in the Premises are
not made during ordinary business hours at Tenant's request. Expenses incurred
by the Tenant under this section of the Lease shall be considered Additional
Rent, subject to all the same terms and conditions as the Base Rent.
14. UNTENANTABILITY. Tenant shall give prompt notice to Landlord in case
of any fire or other damage to the Premises. If (A) the Premises shall be
damaged to the extent of thirty (30%) percent or more of the cost of
replacement thereof during the last two (2) years of the Term or (B) the
Building shall be damaged to the extent of fifty (50%) percent or more of the
cost of replacement thereof whether or not the Premises shall be damaged, or
(C) Landlord advises Tenant that Landlord does not have sufficient funds to
repair and restore the Building or the Premises (and Landlord shall be
obligated to advise Tenant as to such matter within sixty (60) days of the
casualty) then in any of such events, Landlord and Tenant shall each have the
right and option to cancel this Lease by written notice to the other within
ninety (90) days after the date of such occurrence, and thereupon this Lease
shall cease and terminate with the same force and effect as though such date
were the date fixed for the expiration of the Term. Notwithstanding the
foregoing, Landlord shall not have the right to terminate due to insufficient
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funds available for repair and restoration, if such lack of funds is due to
Landlord's failure to maintain the insurance required of Landlord hereunder.
If this Lease is terminated, Tenant shall vacate and surrender the Premises to
Landlord. Tenant's liability for the rents and other charges reserved
hereunder shall cease as of the date of such damage or destruction and Landlord
shall make an equitable refund of any rents or other charges paid by Tenant in
advance and not earned or accrued. Tenant covenants and agrees to pay to
Landlord the insurance proceeds payable to Tenant with respect to leasehold
improvements under the fire insurance policies mentioned under Section
17(B)(i), which obligation shall survive the expiration of the Term, to be used
to repair and restore such leasehold improvements. Unless this Lease is
terminated as aforesaid, this Lease shall remain in full force and effect and
the parties waive the provisions of any law to the contrary, and Landlord and
Tenant agree that the Premises shall be repaired and restored with due
diligence to substantially the condition thereof immediately prior to such
damage or destruction. In no event shall Landlord be required to replace or
restore additions, improvements or alterations to the Premises made by or at
the expense of Tenant unless Landlord shall have received the proceeds of the
insurance policies mentioned under Section 17(B)(i), and in such event,
Landlord's obligation shall be limited to the amount of such proceeds actually
received by Landlord. Landlord shall have no obligation to replace or restore
office furniture or equipment, trade fixtures, merchandise, samples, supplies
or any other items of Tenant's property in the Premises and Tenant shall not be
obligated to give Landlord any of its insurance proceeds with respect to
Tenant's property. If by reason of such fire or other casualty the Premises is
rendered wholly untenantable, the Rent shall be abated, or if only partially
damaged, the Rent shall be abated proportionately as to that portion of the
Premises rendered untenantable; in either event until sixty (60) days after
notice by Landlord to Tenant that the Premises have been substantially repaired
and restored or until Tenant's operations are restored in the entire Premises,
whichever shall occur sooner. If the Premises have not been substantially
repaired and restored within two hundred seventy (270) days of the casualty,
Tenant shall have the right to terminate this Lease by giving Landlord written
notice thereof within ten (10) business days after the expiration of such 270
day period, time being of the essence.
15. EMINENT DOMAIN. If the Building, or any portion thereof which
includes a substantial part of the Premises, or which prevents the operation of
the Building, shall be taken or condemned by any competent authority for any
public use or purpose, the term of this Lease shall end upon, and not before,
the date when the possession of the part so taken shall be required for such
use or purpose, and without apportionment of the condemnation award. Current
rent shall be apportioned as of the date of such termination. If any
condemnation proceeding shall be instituted in which it is sought to take or
damage any part of the Building, or the land under it, or if the grade of any
street or alley adjacent to the Building is changed by any competent authority
and such change of grade makes it necessary or desirable to remodel the
Building to conform to the changed grade, Landlord shall have the right to
cancel this Lease upon not less than ninety (90) days' notice prior to the date
of cancellation designated in the notice. No money or other consideration
shall be payable by Landlord to Tenant for the right of cancellation. Tenant
shall be entitled to seek its allocable share of any condemnation award as
permitted under law at the time.
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16. LANDLORD'S REMEDIES. All rights and remedies of Landlord herein
enumerated shall be cumulative, and none shall exclude any other right or
remedy allowed by law.
A. If a petition in a bankruptcy or insolvency or for reorganization
or for the appointment of a receiver or trustee of all or a portion of
the property of Tenant shall be filed against Tenant in any court,
pursuant to any statute either of the United States or of any state, and
if, within sixty (60) days thereafter, Tenant fails to secure a discharge
thereof, or if Tenant shall voluntarily file any such petition or make an
assignment for the benefit of creditors or petition for or enter into an
arrangement, or if this Lease is taken under writ of execution (each of
the foregoing, herein called an "Act of Bankruptcy"), then Tenant shall
be deemed in breach and default of this Lease and Landlord, in its
discretion and at its election may, to the extent permitted by law, elect
to cancel and terminate this Lease. Upon the cancellation and
termination of this Lease pursuant to the provisions of this subsection
16(A), Landlord, in addition to all the remedies provided by law, shall
be entitled to the remedies provided in this Section 16. lf this Lease
is assumed or assigned by a trustee pursuant to the provisions of the
Bankruptcy Reform Act of 1978 ("Bankruptcy Act") (11 U.S.C. Section 101
et seq.), then the trustee shall cure any default under this Lease and
shall provide such adequate assurances of future performance of this
Lease as are required by the Bankruptcy Act (including, but not limited
to, the requirement of Section 365(b)(1)). If the trustee does not cure
such defaults and provide such adequate assurances under the Bankruptcy
Act within the applicable time periods provided by the Bankruptcy Act,
then this Lease shall be deemed rejected and Landlord shall have the
right to immediate possession of the Premises and shall be entitled to
all remedies provided by the Bankruptcy Act for damages for breach and/or
termination of this Lease.
B. If any of the following occur (each, a "Default"):
(i) Tenant defaults in the payment of Rent as the same shall
become due and fails to cure such default within five (5) days
after written notice thereof from Landlord;
(ii) Tenant defaults in the prompt and full performance of any
other provision of this Lease, and Tenant does not cure the default
within thirty (30) days (or immediately if the default involves a
hazardous condition) after written demand by Landlord that the
default be cured (unless the default involves a hazardous
condition, which shall be cured immediately upon Landlord's
demand); provided, however, that if such default (excluding
defaults relating to a hazardous condition) cannot reasonably be
cured within such thirty (30) day period, then it shall not be a
Default as long as Tenant has commenced to cure such matter within
such thirty (30) day period and continues to diligently pursue such
cure to completion; provided, however, that such additional period
to cure shall not in any event exceed sixty (60) days following the
expiration of the aforesaid thirty (30) day period;
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(iii) if the leasehold interest of Tenant be levied upon under
execution or be attached by process of laws;
(iv) if Tenant suffers or commits an Act of Bankruptcy; or
(v) if Tenant abandons the Premises for more than fifteen (15)
consecutive days,
then and in any such event, Landlord may, if Landlord so elects but not
otherwise, and with or without notice of such election and with or
without any demand whatsoever, either forthwith terminate this Lease and
Tenant's right to possession of the Premises or, without terminating this
Lease, forthwith terminate Tenant's right to possession of the Premises.
Upon any such termination of this Lease, Landlord shall immediately be
entitled to recover damages in an amount equal to the then present value
of the Rent specified in Sections 1 and 2 of this Lease (computed and
discounted on the basis of a rate per annum equal to the "corporate base
rate" announced at the time by The First National Bank of Chicago for the
residue of the stated term hereof.
C. After the occurrence of a Default, 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 immediately, and
deliver possession thereof to Landlord. Tenant hereby grants to Landlord
full and free license to enter into and upon the Premises in the event of
such termination, with process of law, and to take possession of the
Premises. Landlord may expel or remove Tenant and any others who may be
occupying the Premises. Landlord may remove any and all property from
the Premises, using such force as may be necessary, without being deemed
in any manner guilty of trespass, eviction or forcible entry or detainer.
The exercise by Landlord of any of the remedies reserved under this
Section 16(C) shall not constitute a waiver or election by Landlord with
respect to Landlord's rights to rent or any other right given to Landlord
elsewhere in this Lease or by operation of law.
D. After the occurrence of a Default, if Landlord elects to terminate
Tenant's right to possession only, without terminating the Lease, the
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 Paragraph (C) of this Section 16, provided,
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, and in any such case Tenant shall pay
forthwith to Landlord, if Landlord so elects, a sum equal to the present
value (calculated in the same manner described in the last sentence of
Paragraph B above) of the entire amount of the Rent specified in Sections
1 and 2 of this Lease for the residue of the stated Term plus any other
sums then due hereunder. Upon and after entry into possession without
termination of the Lease, Landlord may, but need not, relet the Premises
or any part thereof for the account of Tenant to any person, firm
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or corporation other than Tenant for such rent, for such time and upon
such terms as Landlord in Landlord's reasonable discretion shall
determine, and Landlord shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by Tenant about
such reletting. In any case, Landlord may make repairs, alterations and
additions in or to the Premises, and redecorate the same to the extent
deemed by Landlord necessary or desirable, and Tenant shall, upon demand,
pay the cost thereof, together with Landlord's reasonable expenses of
the reletting. If the consideration collected by Landlord upon any such
reletting for Tenant's account is not sufficient to pay monthly the full
amount of the rent reserved in this Lease, together with the costs of
repairs, alterations, additions, redecorating and Landlord's expenses,
Tenant shall pay to Landlord the amount of each monthly deficiency upon
demand; and if the consideration so collected from any such reletting is
more than sufficient to pay the full amount of the rent reserved herein,
together with the costs and expenses of Landlord, Landlord, at the end of
the stated Term of the Lease (or at such earlier time as Landlord has
been fully reimbursed and compensated for Tenant's Default), shall
account for the surplus to Tenant. Landlord shall use reasonable efforts
to mitigate its damages in the event of a Default.
E. Any and all property which may be removed from the Premises by
Landlord pursuant to the authority of this Lease or of law, to which
Tenant is or may be entitled, may be handled, removed or stored by
Landlord at the risk, cost and expense of Tenant, and Landlord shall in
no event be responsible for the value, preservation or safekeeping
thereof. 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, shall be
presumed to have been conveyed by Tenant to Landlord under this Lease as
a xxxx of sale without further payment or credit by Landlord to Tenant.
F. Tenant shall pay upon demand all of Landlord's costs, charges and
expenses, which shall be considered Additional Rent under this Lease,
including the fees of counsel, agents and others retained by Landlord,
incurred in enforcing Tenant's obligations hereunder or incurred by
Landlord in any litigation, negotiation or transaction in which Tenant
causes Landlord, without Landlord's fault, to become involved or
concerned. Landlord shall pay upon demand all of Tenant's costs, charges
and expenses, including the fees of counsel, agents and others retained
by Landlord, incurred in enforcing Landlord's obligations hereunder or
incurred by Tenant in any litigation, negotiation or transaction in which
Landlord causes Tenant without Tenant's fault, to become involved or
concerned.
17. INSURANCE.
A. Landlord and Tenant hereby waive any rights each may have against
the other on account of any loss or damage occasioned to Landlord or
Tenant, as the case
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may be, their respective property, the Premises, or its contents or to
other portions of the Building, arising from any risk covered by fire and
extended coverage insurance policies then in effect. The parties each,
on behalf of their respective insurance companies insuring the property
of either Landlord or Tenant against any such loss, waive any right of
subrogation that such companies may have against Landlord or Tenant, as
the case may be. Landlord and Tenant covenant with each other that, to
the extent such insurance endorsement is available, they will each
obtain for the benefit of the other a waiver of any right of subrogation
from their respective insurance companies.
B. Tenant further covenants and agrees that from and after the date of
delivery of the Premises from Landlord to Tenant, Tenant will carry and
maintain, at its sole cost and expense, the following types of insurance,
in the amounts specified and in the form hereinafter provided for:
(i) Insurance covering all additions, improvements and
alterations to the Premises made by or at the expense of the Tenant and
all office furniture and equipment, trade fixtures, merchandise and other
items of Tenant's property in the Premises, against all perils as covered
by an "All Risk" form in an amount equal to 100% of the full replacement
value of such property.
(ii) Comprehensive general liability insurance against claims for
bodily injury, death and property damage occurring in or about the
Premises, including contractual liability coverage, to afford protection
to the limits of not less than $5,000,000.00 combined single limit with
respect to bodily injury or death to any number of persons and property
damage from any one accident or occurrence, and naming Landlord,
Landlord's beneficiary, Metropolitan Properties of Chicago, Inc. and
Landlord's mortgagee (if any) as additional insureds.
(iii) Plate glass insurance.
All such insurance shall be effected under valid and enforceable policies
issued by insurers or recognized responsibility which are licensed to do
business in the State of Illinois. Tenant shall, prior to the commencement of
the Term of this Lease, furnish to Landlord, certificates evidencing such
coverage, and showing the interests of Landlord and Landlord's mortgagee, if
any, which certificates shall state that such insurance may not be changed or
cancelled without thirty (30) days prior written notice to Tenant and Landlord
(and, if required, Landlord's mortgagee) and thereafter certificates of renewal
shall be delivered to Landlord not less than thirty (30) days prior to the
expiration of the original policies or the preceding renewals.
C. Landlord shall maintain in full force and effect during the Term
(i) fire and extended coverage covering the Building in an amount equal to
the full replacement cost thereof, and (ii) comprehensive general public
liability insurance, including contractual liability coverage, with
coverage limits not less than those carried by prudent landlords
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of similar properties. Upon Tenant's request, Landlord shall furnish to
Tenant a certificate evidencing coverage.
18. SUBORDINATION OF LEASE.
A. Landlord may have heretofore encumbered or may hereafter encumber
with a mortgage or trust deed the Building, or any interest therein, and
may have heretofore sold and leased back or may hereafter sell and lease
back the land on which the Building is located, and may have heretofore
encumbered or may hereafter encumber the leasehold estate under such
lease with a mortgage or trust deed. (Any such mortgage or trust deed is
herein called a "Mortgage" and the holder of any such mortgage or the
beneficiary under any such trust deed is herein called a "Mortgagee".
Any such lease of the underlying land is herein called a "Ground Lease",
and the lessor under any such lease is herein called a "Ground Lease".
Any Mortgage which is a first lien against the Building, the land on
which the Building is located, the leasehold estate of the lessor under a
Ground Lease (if the property is not then subject to an unsubordinated
mortgage) is herein called a "First Mortgage" and the holder or
beneficiary of or Ground Lessor under any First Mortgage is herein called
a "First Mortgagee.") This Lease is, or shall be, subject and
subordinate to any First Mortgage encumbering the Building as of the
Commencement Date. This provision shall be self-operative, and no
further instrument of subordination and shall be required to effectuate
such subordination. Notwithstanding the foregoing, and as a condition to
Tenant's obligations under this Lease, Landlord shall obtain from its
lender a non-disturbance agreement, in commercially reasonable form
(which shall mean that such agreement does not materially change the
terms of this Lease or Tenant's rights or obligations hereunder),
providing that notwithstanding the Foreclosure of a First Mortgage, so
long as Tenant shall not be in Default, Tenant's right of possession
shall not be disturbed or affected by such foreclosure.
B. If requested by a First Mortgagee, Tenant will either (i)
subordinate its interest in this Lease to said First Mortgage, and to any
and all advances made thereunder and to the interest thereon, and to all
renewals, replacements, supplements, amendments, modifications and
extensions thereof, or (ii) make certain of Tenant's right and interest
in this Lease superior thereto; and Tenant will promptly execute and
deliver such agreement or agreements as may be reasonably required by
such Mortgagee or Ground Lessor; provided, however, Tenant covenants that
it will not subordinate this Lease to any Mortgage or Ground Lease other
than a First Mortgage (including a Ground lease defined as a First
Mortgage hereunder) without the prior written consent of the First
Mortgagee.
C. It is further agreed that (a) if any Mortgage shall be foreclosed,
or if any Ground Lease be terminated, (i) the liability of the Mortgagee
or purchaser at such foreclosure sale or the liability of a subsequent
owner designated as Landlord under this Lease shall exist only so long as
such Mortgagee, purchaser or owner is the owner of the Building or the
land on which the Building is located, and such liability shall not
continue or survive after further transfer of ownership; and (ii) upon
request of the Mortgagee, if
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the Mortgage shall be foreclosed, Tenant will attorn, as Tenant under
this Lease, to the purchaser at any foreclosure sale under any Mortgage
or upon request of the Ground Lessor,if any Ground Lease shall be
terminated, Tenant will attorn as Tenant under this Lease to the Ground
Lessor, and Tenant will execute such instruments as may be necessary or
appropriate to evidence such attornment, subject to Tenant's receipt of
the non-disturbance agreement described in the last sentence of Section
18.A. above; (b) this Lease may not be modified or amended so as to
reduce the Rent or shorten the Term provided hereunder, or so as to
adversely affect in any other respect to any material extent the rights
of the Landlord or its successor, nor shall this Lease be canceled or
surrendered, without the prior written consent, in each instance, of the
First Mortgagee; and (c) Tenant waives the provisions of any statute or
rules of law, now or hereafter in effect, that may give or purport to
give Tenant any right to terminate or otherwise adversely affect
Landlord's interest in this Lease or reduce or limit the obligations of
Tenant hereunder in the event of the prosecution or completion of any
such foreclosure proceeding. No Mortgagee or any purchaser at a
foreclosure sale shall be liable for any act or omission of the Landlord
which occurred prior to such sale or conveyance, nor shall Tenant be
entitled to any offset against or deduction from Rent due after such date
by reason of any act or omission of the Landlord prior to such date.
Further, Tenant agrees that no Mortgagee shall be bound by the prepayment
of Rent made in excess of ninety (90) days before the date on which such
payment is due.
19. SALE OF PREMISES BY LANDLORD. Any sale or exchange by Landlord of
its interest in the Premises shall be subject to this Lease and the rights and
obligations of Landlord and Tenant hereunder; and Tenant shall attorn to
Landlord's grantee or transferee provided that such grantee or transferee has
assumed in writing the obligations of Landlord hereunder. Upon any such sale
or exchange and the assignment by Landlord of this Lease, Landlord shall be and
is hereby entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease arising out
of any act, occurrence or omission relating to the Premises or this Lease
occurring after the consummation of such sale or exchange and assignment.
20. ESTOPPEL CERTIFICATE. Each party shall from time to time, upon not
less than ten (10) days prior written request by the other, deliver to the
other party a statement in writing certifying:
A. that this Lease is unmodified and in full force and effect or, if
there have been modifications, that the Lease as modified is in full
force and effect, and the Term of the Lease has commenced;
B. the dates of commencement of the Term and expiration of the Term
and the date to which Rent and other charges have been paid; and
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C. that Landlord has completed all work to be performed and the
requesting party is not in default under any provision of this Lease or,
if in default, a detailed description thereof.
If such other party shall fail to execute and deliver such statement within
said ten (10) days, then such failing party hereby authorizes the requesting
party as its agent and attorney-in-fact to execute such statement for and on
the behalf of the failing party. Tenant hereby agrees that the estoppel
certificate to be provided by Landlord may be executed and furnished by
Landlord's management agent provided that Landlord agrees to be bound by such
certificate.
21. NOTICES. All notices, demands, approvals, consents, requests for
approval or consent or other writings in this Lease provided to be given, made
or sent by either party hereto to the other ("Notice") shall be in writing and
shall be deemed to have been fully given, made or sent when made by personal
service, one (1) business day after deposit with an overnight courier, or two
(2) business days after deposit in the United States mail, certified or
registered and postage prepaid and properly addressed as follows:
To Landlord: To Metropolitan Properties of Chicago, Inc.,
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Property Manager with a
copy to Xxxxxxx & Xxxxx, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Esq.
To Tenant: To 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx Xxxx,
Xxxxxxxx 00000, Attention: Xxxx Xxxxxx.
The address to which any Notice shall be given, made or sent to either party
may be changed by written notice given by such party as above provided. Any
notice, demand, request or consent to be made by or required of Landlord, may
be made and given by Metropolitan Properties of Chicago, Inc. with the same
force and effect as if made and given by Landlord.
22. MISCELLANEOUS.
A. No receipt of money by Landlord from Tenant after the
termination of this Lease or after the service of any notice or after the
commencement of any suit, or after final judgment for possession of the
Premises shall renew, reinstate, continue or extend the Term of this
Lease or affect any such notice, demand or suit.
B. No waiver of any default of a party hereunder shall be implied from
any omission by the other party to take any action on account of such
default if such default persists or be repeated, and no express waiver
shall affect any default other than the default specified in the express
waiver and that only for the time and to the extent therein stated. The
invalidity or unenforceability of any provision hereof shall not affect
or impair any other provision.
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C. In the absence of fraud, no person, firm or corporation, or the
heirs, legal representatives, successors and assigns, respectively,
thereof, executing this Lease as agent, trustee or in any other
representative capacity shall ever be deemed or held individually liable
hereunder for any reason or cause whatsoever.
D. The words "Landlord" and "Tenant" wherever used in this Lease shall
be construed to mean Landlords or Tenants in all cases where there is
more than one lessor or lessee, and the necessary grammatical changes
required to make the provisions hereof apply either to corporation or
individuals, men or women, shall in all cases be assumed as though in
each case fully expressed.
E. Each provision hereof 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 in
the event this Lease has been assigned with the express, written consent
of Landlord or as otherwise permitted under Section 9 of this Lease.
F. The headings of sections are for convenience only and do not limit
or construe the contents of the sections.
G. Submission of this instrument for examination does not constitute a
reservation of or option for the Premises. The instrument becomes
effective as a lease upon execution and delivery by both Landlord and
Tenant.
H. All non-scheduled amounts owed by the Tenant to Landlord hereunder,
or by Landlord to Tenant hereunder, shall be paid within thirty (30) days
from the date the party to whom amounts are owed renders statements of
account therefor and shall bear interest, from the thirty-first (31st)
day until paid, at the rate of the lesser of (i) the then current prime
rate of interest established by the First National Bank of Chicago, or
its successor, or (ii) the maximum rate permitted by law thereafter until
paid. This subparagraph H shall not apply to any amounts for which a
separate notice provision is provided elsewhere in this Lease, which
amounts shall be paid as so provided and which shall bear interest from
the first day overdue until paid.
I. Provisions typed on the face of this Lease and signed by Landlord
and Tenant and all exhibits attached to this Lease are hereby made a part
of this Lease as though inserted at length in this Lease.
J. If Tenant shall occupy the Premises prior to the beginning of the
stated Term of this Lease with Landlord's consent, all the provisions of
this Lease shall be in full force and effect as soon as Tenant occupies
the Premises. Rent for any period prior to the beginning of the stated
Term of this Lease shall be filed on the basis of the prorated portion of
the rent set forth in Section 1.
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K. This Lease is the entire understanding of the parties and the terms
and provisions of this Lease shall only be modified or amended in writing
which is consented to by Landlord's mortgagee, if any.
L. Neither Landlord nor Tenant shall be deemed in default with
respect to the failure to perform any of the terms, covenants and
conditions of this Lease on its part to be performed, if such failure is
due in whole or in part to any strike, lockout, labor dispute (whether
legal or illegal), civil disorder, inability to procure materials,
failure of power, restrictive governmental laws and regulations, riots,
insurrections, war, fuel shortages, accidents, casualties, Acts of God,
act caused directly or indirectly by the other party to this Lease (or
such other party's agents, employees, guests or invitees), acts of other
tenants or occupants of the Building (which are outside of the performing
party's reasonable control) or any other cause beyond the reasonable
control of the performing party. In such event, the time for performance
shall be extended by an amount of time equal to the period of the delay
so caused. Except as expressly provided in this Lease, no interruption
of service resulting from any of the causes described in the first
sentence of this Paragraph 22.L shall relieve Tenant of any of its
obligations under this Lease or render Landlord liable for damages.
Landlord shall not be liable to Tenant for any expense, injury, loss or
damage resulting from work done in or upon, or the use of, any adjacent
or nearby building, land, street, alley or underground vault or
passageway, except as otherwise expressly provided in this Lease. This
Paragraph shall not apply to Tenant's obligation to pay Rent under this
Lease, except as may be expressly set forth in this Lease.
23. SUBSTITUTIION OF PREMISES. [Intentionally Deleted]
24. LIMITATION OF LANDLORD'S LIABILITY. This instrument is executed by
Chicago Title and Trust Company, as Trustee under Trust Agreement dated
November 2, 1977, and known as Trust No. 1070932. No personal liability shall
be asserted or enforceable against Chicago Title and Trust Company, the
beneficiaries of said Trust No. 1070932, or their respective agents and
employees by reason of any of the covenants, statements, representations or
warranties contained in this Lease. Anything in this Lease to the contrary
notwithstanding, Tenant agrees that it shall look solely to the estate and
property of Landlord in the land and building of which the Premises forms a
part and (subject to prior rights of the holder of any mortgage or deed to
secure debt or a deed of trust on any part of the Building) for the collection
of any judgment (or other judicial process) requiring the payment of money by
Landlord in the event of any default or breach by Landlord with respect to any
of the terms, covenants and conditions of this Lease to be observed or
performed by Landlord, and no other assets of Landlord (which for the purposes
of this Section 24 shall be deemed to include the trustee and beneficiaries of
said Trust No. 1070932 and their respective agents and employees) shall be
subject to levy, execution or other procedures for the satisfaction of Tenant's
remedies.
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25. BROKER. Landlord and Tenant each represent and warrant to the other
that neither such party nor its offices or agents nor anyone acting on such
party's behalf has dealt with any real estate brokers in connection with this
Lease, except that (i) the parties have dealt with Metropolitan Properties of
Chicago, Inc. whose commission or fee shall be paid by Landlord, and (ii)
Tenant has dealt with Price Associates, Inc., whose commission or fee shall be
paid by Tenant. Each party agrees to indemnify, defend and hold harmless the
other party, its beneficiaries (if any), and their agents and employees, from
the claim or claims of any broker or brokers claiming, as an agent of the
indemnifying party, to have interested Tenant in the Building or the Premises
or claiming, as an agent of the indemnifying party, to have caused Tenant to
enter into this Lease.
26. SECURITY DEPOSIT. [Intentionally Deleted]
27. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagees and/or
trust deed holders, by registered mail, a copy of any notice of default served
upon the Landlord, provided that prior to such notice Tenant has been notified,
in writing (by way of Notice of Assignments of Rents and Leases, or otherwise),
of the address of such mortgagees and/or trust deed holders. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagees and/or trust deed holders shall
have an additional thirty (30) days within which to cure such default or if
such default cannot be cured within that time, then such additional time as may
be necessary if within thirty (30) days, any mortgagee and/or trust deed holder
has commenced and is diligently pursuing the remedies necessary to cure such
default (including but not limited to commencement of foreclosure proceedings,
if necessary to effect such cure) in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
28. CONSTRUCTION. Landlord agrees to perform tenant improvements in
accordance with the Workletter attached as Exhibit B to this Lease and made a
part hereof.
29. TERMINATION OPTION. Subject to the provision of this Section 29,
Tenant shall have the right to terminate this Lease, upon 365 days' prior
written notice. Such termination shall be effective as of a date specified in
such notice which shall not be earlier than the 365th day following Landlord's
receipt of such notice (such effective date, herein referred to as the
"Termination Date"); provided, however, that the earliest possible Termination
Date shall be on the day prior to the eighth (8th) anniversary of the
Commencement Date (i.e., April 30, 2002). Tenant's termination option
hereunder shall only be effective if, on or prior to the scheduled Termination
Date, Tenant pays to Landlord in cash or by certified or cashier's check (i)
the "Termination Fee" (as hereinafter defined) and (ii) the amount necessary to
cure all defaults by Tenant which may exist under this Lease prior to the
Termination Date. The Termination Fee shall be the applicable amount for the
month in which the Termination Date occurs as shown on the schedule attached as
Exhibit C to this Lease and incorporated herein by this reference, which amount
represents the then unamortized Landlord's cost of constructing tenant
improvements, including Landlord's Contribution (as defined in the Workletter),
Landlord's architectural and
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engineering costs, Landlord's leasing commission costs and other costs
incurred by Landlord in connection with this Lease.
If Tenant so elects to terminate this Lease, then, effective as of the
Termination Date, this Lease shall be deemed to have expired by lapse of time
and Tenant shall return the Premises to Landlord on the Termination Date in
accordance with the requirements of this Lease. All obligations of Tenant
which accrue under this Lease on or before the Termination Date shall survive
such termination and neither the exercise of such right to terminate nor such
termination shall affect Landlord's remedies on account of any default by
Tenant existing prior to the Termination Date.
30. ADDITIONAL CONDITION. At all times during the Term, Tenant shall
permit other tenants (and their employees, agents and invitees) of the Building
to use the entry at the northeast end of the Premises (ground floor) as a means
of ingress and egress to the Building.
31. MAINTENANCE BY LANDLORD. At all times, Landlord shall maintain the
structure, foundation, roof and exterior (excluding windows and metal
refinishing) of the Building, the heating, air conditioning, ventilating,
plumbing and electrical systems (excluding bulbs and ballasts), and equipment
servicing the Premises in accordance with general standards now or hereafter
applicable to first class office buildings in the downtown Chicago Area, in
conformance with all applicable laws, regulations and ordinances, and shall
make such repairs as are necessary to effect the foregoing.
32. LANDLORD DEFAULT. If Landlord defaults in the observance or
performance of any of the terms or covenants required to be performed by it
under this Lease which directly relate to the appearance or operation of the
Premises, Tenant, after not less than ten (10) business days prior written
notice to Landlord may, but shall not be obligated to, remedy such default and
in connection therewith may pay expenses and employ counsel, provided that in
the event of an emergency, if Landlord shall not forthwith commence to, and
diligently pursue, correction of such default after written notice from Tenant,
Tenant shall have the right to remedy such default without further notice; all
sums reasonably expended or obligations reasonably incurred by Tenant in
connection therewith shall be paid by Landlord to Tenant upon demand.
33. TENANT IMPROVEMENT FINANCING. The portion of the cost of
constructing the initial improvements to the Premises owed by Landlord is being
financed by Landlord. In furtherance of such financing, Landlord, Tenant and
the existing first mortgagee shall execute the financing documents attached as
Exhibit E to this Lease, namely, a Note, an Assignment of Rents and Estoppel, a
Mortgage Disclaimer and an Acknowledgment. It is understood by Tenant that
Tenant's efforts in procuring the improvement financing were, in part, the
consideration for Landlord's agreement to provide certain concessions in this
Lease and that the providing of such financing is an integral part of this
transaction and the ultimate lease agreement between the parties hereto.
Notwithstanding the foregoing, Tenant shall not be obligated to execute the
financing documents or provide such financing until Landlord has furnished
Tenant with evidence that Landlord has restructured its current financing to
include a loan term greater than the term
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of such tenant improvement financing. Upon the furnishing of such evidence,
Tenant and Landlord shall execute such financing documents and Tenant shall
cause the tenant improvement financing to be provided to Landlord. It is
understood, however, that the parties' obligations to execute such financing
documents are subject to Landlord's mortgagee's approval of such financing. If
such approval is not obtained, Landlord shall be obligated to make Landlord's
Contribution (as described in the Workletter) via alternate means without the
benefit of such financing.
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IN WITNESSES WHEREOF, the parties hereunder have caused this Lease to be
executed under their seals, on the date first above written.
LANDLORD: TENANT:
CHICAGO TITLE AND TRUST MIDWEST BANK & TRUST COMPANY,
COMPANY, as Trustee under Trust an Illinois corporation
Agreement dated November 2,
1977, and known as Trust No.
1070932 By: /s/ Xxxx X. Xxxxxx
--------------------------
Its: President (Title)
--------------------------
By: /s/ Attest:
-------------------------------
Its: Asst. Vice President(Title) By: /s/ Xxxxxx Xxxxxxxx
------------------------------- --------------------------
Its: Vice President & Cashier
-------------------------
Attached exoneration rider is incorporated herein.
It is expressly understood and agreed by and between the parties herein,
anything herein to the contrary notwithstanding, that each and all of the
warranties, indemnities, representations, covenants, undertakings and
agreements herein made on the part of the Trustee while in form purporting to
the warranties, indemnities, representations, covenants, undertakings and
agreements of said Trustee are nevertheless each and every one of them, made
and intended not as personal warranties, indemnities, representations,
covenants, undertakings and agreements by the Trustee or for the purpose or
with the intention of [ ] said Trustee personally but are made and
intended for the purpose of binding only that portion of the trust [ ]
described herein, and this instrument is executed and delivered by said Trustee
not in its own right, but solely [ ] the exercise of the powers
conferred upon it as such Trustee; and that no personal liability or personal
responsibility is assumed by nor shall at any time be asserted or enforceable
against the Chicago Title and Trust Company on account of this instrument or on
account of any warranty, indemnity, representation, covenant, undertaking or
agreement of the said Trustee in this instrument contained, either expressed or
implied, all such personal liability, if any, being expressly waived and
released.
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