EXHIBIT 10.118
LEASE AGREEMENT WITH GLOBAL KNOWLEDGE NETWORK, INC.
FOR A PORTION OF ▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
OFFICE LEASE
BETWEEN
WINDY POINT OF SCHAUMBURG L.L.C.
as Landlord
AND
GLOBAL KNOWLEDGE NETWORK, INC.
as Tenant
Dated: DECEMBER 9, 1999
TABLE OF CONTENTS
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1. DEMISE AND TERM. ..................................................... 1
2. RENT. ................................................................ 2
A. Definitions. .................................................... 2
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B. Components of Rent. ............................................. 3
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C. Payment of Rent. ................................................ 4
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3. USE. ................................................................. 5
4. CONDITION OF PREMISES. ............................................... 5
A. Initial Condition ............................................... 5
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B. Americans With Disabilities Act ................................. 5
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5. BUILDING SERVICES. ................................................... 6
A. Basic Services. ................................................. 6
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B. Electricity. .................................................... 7
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C. Telephones. ..................................................... 7
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D. Additional Services. ............................................ 8
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E. Failure or Delay in Furnishing Services. ........................ 8
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6. RULES AND REGULATIONS. ............................................... 9
7. CERTAIN RIGHTS RESERVED TO LANDLORD. ................................. 9
8. MAINTENANCE AND REPAIRS. ............................................. 10
9. ALTERATIONS. ......................................................... 10
A. Requirements. ................................................... 10
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B. Liens. .......................................................... 11
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10. INSURANCE. ........................................................... 11
A. Tenant's Insurance. ............................................. 11
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B. Mutual Waiver of Subrogation. ................................... 12
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11. WAIVER AND INDEMNITY. ................................................ 12
A. Waiver. ......................................................... 12
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B. Tenant's Indemnity. ............................................. 13
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C. Landlord's Indemnity. ........................................... 13
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12. FIRE AND CASUALTY. ................................................... 13
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13. CONDEMNATION. ........................................................ 14
14. ASSIGNMENT AND SUBLETTING. ........................................... 14
A. Landlord's Consent. ............................................. 14
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B. Standards for Consent. .......................................... 16
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C. Recapture. ...................................................... 16
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15. SURRENDER. ........................................................... 17
16. DEFAULTS AND REMEDIES. ............................................... 17
A. Default. ........................................................ 17
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B. Right of Re-Entry. .............................................. 17
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C. Reletting. ...................................................... 18
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D. Termination of Lease. ........................................... 18
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E. Other Remedies. ................................................. 18
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F. Bankruptcy. ..................................................... 18
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G. Waiver of Trial by Jury. ........................................ 18
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17. HOLDING OVER. ........................................................ 19
19. [Intentionally Deleted). ............................................. 20
20. ESTOPPEL CERTIFICATES. ............................................... 20
21. SUBORDINATION. ....................................................... 21
22. QUIET ENJOYMENT. ..................................................... 21
23. BROKER. .............................................................. 22
24. NOTICES. ............................................................. 22
25. MISCELLANEOUS. ....................................................... 22
A. Successors and Assigns. ......................................... 22
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B. Entire Agreement. ............................................... 23
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C. Time of Essence. ................................................ 23
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D. Execution and Delivery. ......................................... 23
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E. Severability. ................................................... 23
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F. Governing Law. .................................................. 23
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G. Attorneys' Fees. ................................................ 23
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▇. ▇▇▇▇▇ in Possession. ............................................ 23
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I. Joint and Several Liability. .................................... 23
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J. Force Majeure. .................................................. 23
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ii
K. Captions. ................................................................. 23
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L. No Waiver. ................................................................ 24
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M. No Recording. ............................................................. 24
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N. Limitation of Liability. .................................................. 24
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26. PARKING. ....................................................................... 24
27. LANDLORD'S TERMINATION OPTION. ................................................. 24
A. Termination Option. ....................................................... 24
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B. Terms. .................................................................... 25
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28. RENEWAL OPTION. ................................................................ 25
A. Renewal Option. ........................................................... 25
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B. Terms. .................................................................... 25
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C. Amendment. ................................................................ 26
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D. Termination. .............................................................. 26
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EXHIBIT A - Plan of Premises. ........................................................ A-1
EXHIBIT B - Rules and Regulations. ................................................... B-1
EXHIBIT C - Work Letter Agreement. ................................................... ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Agreement. .............................................. D-1
EXHIBIT E - Form of Subordination, Non-Disturbance and Attornment Agreement . ........ ▇-▇
▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Specifications ........................................ F-1
EXHIBIT G - Form of Letter of Credit ................................................. G-1
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OFFICE LEASE
THIS LEASE is made as of December 9, 1999, between WINDY POINT OF
SCHAUMBURG L.L.C., a Delaware limited liability company, having an address at
c/▇ ▇▇▇▇▇▇▇ Realty Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Landlord"), and GLOBAL KNOWLEDGE NETWORK, INC., a Delaware corporation, having
an address at ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Tenant"), for space in the building at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in the office
complex known as Windy Point of Schaumburg (such building, including the land
upon which the building and related facilities are situated, being herein
referred to as the "Building"). The following schedule (the "Schedule") sets
forth certain basic terms of this Lease:
SCHEDULE
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1. Premises: ............................. A) ▇▇▇▇▇ ▇▇▇
B) Approximately 22,028
rentable square feet
Base Rent:
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2. 3.
Year of Term Annual Base Rent Monthly Base Rent
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1 $371,171.76 $30,930.98
2 382,306.92 31,858.91
3 393,776.16 32,814.68
4 405,589.44 33,799.12
5 417,757.08 34,813.09
6 430,289.88 35,857.49
7 443,198.52 36,933.21
8 456,494.52 38,041.21
9 470,189.28 39,182.44
10 484,295.04 40,357.92
4. Tenant's Proportionate Share:. ................................................ 11.785%
5. Security Deposit:. .......................................... $100,000 Letter of Credit
6. Commencement Date:. ....................................................... May 1, 2000
7. Expiration Date:. ...................................................... April 30, 2010
8. Brokers:. ........ ▇▇▇▇▇▇▇ Realty Corp., Corporate Realty Advisors and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
9. Brokerage Agreement:. .............. Agreement dated November 17, 1999 between Landlord
and Brokers.
1. DEMISE AND TERM. Landlord leases to Tenant and Tenant leases from
Landlord the premises (the "Premises") described in Item 1 of the Schedule and
shown on the
plan attached hereto as Exhibit A, subject to the covenants and conditions set
forth in this Lease, for a term (the "Term") commencing on the date described in
Item 6 of the Schedule (the "Commencement Date") and expiring on the date (the
"Expiration Date") that immediately precedes the tenth anniversary of the
Commencement Date, unless terminated earlier as otherwise provided in this Lease
(or, if such anniversary of the Commencement Date is not the first day of a
calendar month, the Expiration Date shall be the last day of the month in which
the tenth anniversary of the Commencement Date occurs). Tenant may occupy the
Premises for the conduct of business prior to the Commencement Date, provided
such occupancy shall be upon all of the terms and conditions of this Lease other
than the obligations to pay Base Rent and Adjustment Rent (as hereinafter
defined) for such period prior to the Commencement Date. Tenant shall complete
and furnish to Landlord, on or before occupancy of the Premises, the Suite
Acceptance Agreement attached hereto as Exhibit D, which shall acknowledge the
actual Commencement Date and Expiration Date.
2. RENT.
A. Definitions. For purposes of this Lease, the following terms shall have
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the following meanings:
(i) "Expenses" shall mean all expenses, costs and disbursements
(other than Taxes) paid or incurred by Landlord in connection with the
ownership, management, maintenance, operation, replacement and repair of
the Building. Expenses shall not include: (a) costs of tenant alterations;
(b) costs of capital improvements (except for costs of any capital
improvements made or installed for the purpose of reducing Expenses or made
or installed pursuant to governmental requirement or insurance requirement,
which costs shall be amortized by Landlord in accordance with sound
accounting and management principles); (c) interest and principal payments
on mortgages (except interest on the cost of any capital improvements for
which amortization may be included in the definition of Expenses) or any
rental payments on any ground leases (except for rental payments which
constitute reimbursement for Taxes and Expenses); (d) advertising expenses
and leasing commissions; (e) any cost or expenditure for which Landlord is
reimbursed, whether by insurance proceeds or otherwise, except through
Adjustment Rent (hereinafter defined); (f) the cost of any kind of service
furnished to any other tenant in the Building which Landlord does not
generally make available to all tenants in the Building;(g) legal expenses
of negotiating leases, (h) costs of special services rendered to individual
tenants (including Tenant) for which a special charge is made, (i) costs of
repairs directly resulting from the negligence or willful misconduct of
Landlord, its agents or employees, (j) costs for which Landlord is
reimbursed by other tenants of the Building other than through payment of
tenants' shares of Expenses and Taxes,(k) fines or penalties incurred due
to Landlord's violation of any law and (l) management fees substantially in
excess of the management fees then generally charged by managers of
comparable office buildings in the Chicago metropolitan area. Expenses
shall be determined on a cash or accrual basis, as Landlord
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may elect (provided Landlord shall not change such method of determining
Expenses during the Term).
(ii) "Rent" shall mean Base Rent, Adjustment Rent and any other
sums or charges due by Tenant hereunder.
(iii) "Taxes" shall mean all taxes, assessments and fees levied
upon the Building, the property of Landlord located therein or the rents
collected therefrom, by any governmental entity based upon the ownership,
leasing, renting or operation of the Building, including all costs and
expenses of protesting any such taxes, assessments or fees. Taxes shall not
include any net income, capital stock, succession, transfer, franchise,
gift, estate or inheritance taxes; provided, however, if at any time during
the Term, a tax or excise on income is levied or assessed by any
governmental entity, in lieu of or as a substitute for, in whole or in
part, real estate taxes or other ad valorem taxes, such tax shall
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constitute and be included in Taxes. For the purposes of determining Taxes
for any given year, the amount to be included for such year (a) from
special assessments payable in installments shall be the amount of the
installments (and any interest) due and payable during such year, and (b)
from all other Taxes shall at Landlord's election either be the amount
accrued, assessed or otherwise imposed for such year or the amount due and
payable in such year (provided Landlord shall not change such method of
determining Taxes during the Term).
(iv) "Tenant's Proportionate Share" shall mean the percentage
set forth in Item 4 of the Schedule which has been determined by dividing
the rentable square feet in the Premises (i.e., the number of rentable
square feet stated in Item 1B of the Schedule) by the rentable square feet
in the Building (i.e., 186,921).
B. Components of Rent. Tenant agrees to pay the following amounts to
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Landlord at the office of the Building or at such other place as Landlord
designates:
(i) Base rent ("Base Rent") to be paid in monthly installments
in the amount set forth in Item 3 of the Schedule in advance on or before
the first day of each month of the Term, except that Tenant shall pay the
first month's Base Rent upon execution of this Lease.
(ii) Adjustment rent ("Adjustment Rent") in an amount equal to
Tenant's Proportionate Share of (a) the Expenses for any calendar year and
(b) the Taxes for any calendar year. Prior to each calendar year, Landlord
shall estimate the amount of Adjustment Rent due for such year, and Tenant
shall pay Landlord one-twelfth of such estimate on the first day of each
month during such year. Such estimate may be revised by Landlord whenever
it obtains information relevant to making such estimate more accurate.
After the end of each calendar year, Landlord shall deliver to Tenant a
report setting forth the actual Expenses and Taxes for such calendar year
and a statement of the
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amount of Adjustment Rent that Tenant has paid and is payable for such
year. Within thirty days after receipt of such report, Tenant shall pay to
Landlord the amount of Adjustment Rent due for such calendar year minus any
payments of Adjustment Rent made by Tenant for such year. If Tenant's
estimated payments of Adjustment Rent exceed the amount due Landlord for
such calendar year, Landlord shall apply such excess as a credit against
Tenant's other obligations under this Lease or promptly refund such excess
to Tenant if the Term has already expired, provided Tenant is not then in
Default hereunder, in either case without interest to Tenant.
C. Payment of Rent. The following provisions shall govern the payment of
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Rent: (i) if this Lease commences or ends on a day other than the first day or
last day of a calendar year, respectively, the Rent for the year in which this
Lease so begins or ends shall be prorated and the monthly installments shall be
adjusted accordingly; (ii) all Rent shall be paid to Landlord without offset or
deduction, and the covenant to pay Rent shall be independent of every other
covenant in this Lease; (iii) if during all or any portion of any year the
Building is not fully rented and occupied, Landlord may elect to make an
appropriate adjustment of Expenses and/or Taxes for such year to determine the
Expenses and/or Taxes that would have been paid or incurred by Landlord had the
Building been fully rented and occupied for the entire year and the amount so
determined shall be deemed to have been the Expenses and/or Taxes for such year;
(iv) any sum due from Tenant to Landlord which is not paid within five days
after its due date shall bear interest from the date due until the date paid at
the annual rate of 14% per annum, but in no event higher than the maximum rate
permitted by law (the "Default Rate"); and, in addition, Tenant shall pay
Landlord a late charge for any Rent payment which is paid more than five days
after its due date equal to 5% of such payment; (v) if changes are made to this
Lease or the Building changing the number of square feet contained in the
Premises or in the Building, Landlord shall make an appropriate adjustment to
Tenant's Proportionate Share; (vi) Tenant shall have the right, upon reasonable
prior written notice to Landlord, to inspect Landlord's accounting records
relative to Expenses and Taxes during normal business hours at any time within
60 days following the furnishing to Tenant of the annual statement of Adjustment
Rent; and, unless Tenant shall take written exception to any item in any such
statement within such 60-day period, such statement shall be considered as final
and accepted by Tenant. Tenant must timely pay all Adjustment Rent billed by
Landlord pending the outcome of its inspection or any audit of Landlord's
accounting records. If Tenant makes such timely written exception, an audit as
to the proper amount of Adjustment Rent for such period shall be performed by an
independent certified public accounting firm selected by Landlord, but subject
to Tenant's reasonable approval, which audit shall be final and conclusive. If
the results of such audit reveal that Tenant has overpaid or underpaid
Adjustment Rent for the applicable year, Landlord shall pay to Tenant such
overpayment or Tenant shall pay to Landlord such underpayment, as applicable,
within 30 days after the results of such audit are reported to the parties.
Tenant agrees to pay the entire cost of such audit unless it is determined that
Landlord's original determination of the Adjustment Rent for the year in issue
was in error by more than 5%, in which case Landlord agrees to pay one-half of
the cost of such audit; (vii) in the event of the termination of this Lease
prior to the determination of any Adjustment Rent, Tenant's agreement to pay any
such sums and
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Landlord's obligation to refund any such sums (provided Tenant is not in default
hereunder) shall survive the termination of this Lease; (viii) no adjustment to
the Rent by virtue of the operation of the rent adjustment provisions in this
Lease shall result in the payment by Tenant in any year of less than the Base
Rent shown on the Schedule; (ix) Landlord may at any time change the fiscal year
of the Building; (x) each amount owed to Landlord under this Lease for which the
date of payment is not expressly fixed shall be due on the same date as the Rent
listed on the statement showing such amount is due; and (xi) if Landlord fails
to give Tenant an estimate of Adjustment Rent prior to the beginning of any
calendar year, Tenant shall continue to pay Adjustment Rent at the rate for the
previous calendar year until Landlord delivers such estimate.
3. USE. Tenant agrees that it shall occupy and use the Premises only as
business offices and classrooms for corporate training and technical education
of employees of Tenant's clients and for no other purposes (and in no event as
an elementary or high school, college or university, vocational school, driving
school or other such school). Tenant shall comply with all federal, state and
municipal laws, ordinances and regulations and all covenants, conditions and
restrictions of record applicable to Tenant's use or occupancy of the Premises.
Without limiting the foregoing, Tenant shall not cause, nor permit, any
hazardous or toxic substances to be brought upon, produced, stored, used,
discharged or disposed of in, on or about the Premises without the prior written
consent of Landlord and then only in compliance with all applicable
environmental laws.
4. CONDITION OF PREMISES.
A. Initial Condition. Tenant's taking possession of the Premises shall be
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conclusive evidence that the Premises were in good order and satisfactory
condition when Tenant took possession. No agreement of Landlord to alter,
remodel, decorate, clean or improve the Premises or the Building (or to provide
Tenant with any credit or allowance for the same), and no representation
regarding the condition of the Premises or the Building, have been made by or on
behalf of Landlord or relied upon by Tenant, except as stated in the Work Letter
Agreement attached hereto as Exhibit C.
B. Americans With Disabilities Act. The parties acknowledge that the
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Americans With Disabilities Act of 1990 (42 U.S.C. (S)12101 et seq.) and
regulations and guidelines promulgated thereunder, as amended and supplemented
from time to time (collectively referred to herein as the "ADA") establish
requirements under Title III of the ADA ("Title III") pertaining to business
operations, accessibility and barrier removal, and that such requirements may be
unclear and may or may not apply to the Premises and the Building. The parties
acknowledge and agree that Tenant has been provided an opportunity to inspect
the Premises and the Building sufficient to determine whether or not the
Premises and the Building in their condition as of the date hereof deviate in
any manner from the ADA Accessibility Guidelines ("ADAAG") or any other
requirements under the ADA pertaining to the accessibility of the Premises or
the Building. Tenant further acknowledges and agrees that to the extent that
Landlord prepares, reviews or approves any of plans or specifications relating
to leasehold improvements in the Premises, such
5
action shall in no event be deemed any representation or warranty that the same
comply with any requirements of the ADA. Notwithstanding anything to the
contrary in this Lease, the parties hereby agree to allocate responsibility for
Title III compliance as follows: (a) Tenant shall be responsible for all Title
III compliance and costs in connection with the Premises, including structural
work, if any, and including any leasehold improvements or other work to be
performed in the Premises under or in connection with this Lease, and (b)
Landlord shall perform, and Tenant shall be responsible for the cost of, any
so-called Title III "path of travel" requirements triggered by any construction
activities or alterations in the Premises. Landlord covenants and agrees that
during the Term, Landlord shall cause the ground floor common areas of the
Building, the entrances to the Building which provide public access to the
Building, and the parking areas serving the Building, to comply with the
requirements (as reasonably interpreted from time to time) of Title III. Tenant
understands and agrees that the costs and expenses of such compliance shall be
included in Expenses. Except as set forth above with respect to Landlord's Title
III obligations, Tenant shall be solely responsible for all other requirements
under the ADA relating to Tenant or any affiliates or persons or entities
related to Tenant (collectively, "Affiliates"), operations of Tenant or
Affiliates, or the Premises, including, without limitation, requirements under
Title I of the ADA pertaining to Tenant's employees.
5. BUILDING SERVICES.
A. Basic Services. Landlord shall furnish the following services: (i)
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heating and air conditioning to provide a temperature condition required for
comfortable occupancy of the Premises under normal business operations and
consistent with the heating and air conditioning services provided in comparable
office buildings in and around Schaumburg, Illinois. The heating and air
conditioning for the Premises is provided through "heat pumps" which may be
controlled by Tenant (i.e., Tenant controls the hours of operation and the
temperature settings); (ii) water for drinking, and, subject to Landlord's
approval, water at Tenant's expense for any private restrooms and office kitchen
requested by Tenant; (iii) men's and women's restrooms at locations designated
by Landlord and in common with other tenants of the Building; (iv) daily janitor
service in the Premises and common areas of the Building, weekends and holidays
excepted, including periodic outside window washing of the perimeter windows in
the Premises (the current specifications for the janitor service to be provided
by Landlord are attached as Exhibit F, provided Landlord reserves the right to
alter such specifications from time to time in Landlord's reasonable
discretion);(v) passenger elevator service in common with Landlord and other
tenants of the Building, 24 hours a day, 7 days a week; and (vi) freight
elevator service (as opposed to routine passenger elevator service) daily
between the hours of 7:00 a.m. and 6:00 p.m., weekends and holidays excepted.
Tenant must notify Landlord before bringing freight or large items into the
Building so Landlord can place pads on the walls of the elevator. If Landlord
reasonably believes that Tenant's use of the freight elevator service is
inconveniencing other tenants and occupants of the Building, upon five days
notice to Tenant, Landlord may thereafter prohibit Tenant from using freight
elevator service during one hour in the morning every day (such time to be
designated by Landlord in its sole discretion from time to time). Furthermore,
if Landlord reasonably believes that Tenant's use of the freight elevator
service is still inconveniencing other tenants and occupants of the Building,
upon five days notice to Tenant, Landlord may require that Tenant commence
making its morning deliveries between 6:00 a.m. and 7:00 a.m. (and Tenant shall
be responsible for the costs incurred by Landlord in having an engineer or
security guard at the Building during such hours). Finally, if Landlord
reasonably believes that Tenant's use of the freight elevator service is still
inconveniencing other tenants and occupants of the Building, Tenant must arrange
for partial deliveries on Sundays (taking up to four hours) so that all such
inconvenience during business
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days at the start of the week is eliminated (and Tenant shall be responsible for
the costs incurred by Landlord in having an engineer or security guard at the
Building during such time). At all times that deliveries are being made to the
Premises, Tenant shall be responsible for causing the Premises to be accessible
for the delivery (and Landlord's engineer or security guard shall not be
expected to provide access to the Premises or to guard or protect Tenant's
property in the Premises or the Building). In addition to the foregoing, at
Tenant's election (and at Tenant's cost, as provided above), Tenant may commence
making deliveries at 6:00 a.m. on business days and may make deliveries for up
to four hours on Sundays. For purposes of this ▇▇▇▇▇▇▇ ▇.▇, "▇▇▇▇▇▇▇▇" shall
mean New Years Day, Memorial Day, Independence Day, Labor Day, Thanksgiving and
Christmas, as well as, at Landlord's election, any other day that the majority
of comparable office buildings in Schaumburg, Illinois treat as a public
holiday.
B. Electricity. Electricity shall be distributed to the Premises by the
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electric utility company serving the Building (as designated by Landlord from
time to time) and Landlord shall permit Landlord's wire and conduits, to the
extent available, suitable and safely capable, to be used for such distribution.
Tenant at its cost shall make all necessary arrangements with the electric
utility company for metering and paying for electric current furnished to the
Premises. All electricity used during the performance of janitor service, or the
making of any alterations or repairs in the Premises, or the operation of any
special air conditioning systems serving the Premises, shall be paid for by
Tenant. The heat pumps providing heating and air conditioning services for the
Premises draw upon the Building's electric supply (and the costs of such
electricity consumed during the Building's standard hours of operation shall be
included in Expenses).
C. Telephones. Tenant shall be responsible for arranging for its own
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telecommunications services at the Premises. All telegraph, telephone, and
electric connections which Tenant may desire shall be first approved by Landlord
in writing (which approval shall not be unreasonably withheld, conditioned or
delayed), before the same are installed, and the location of all wires and the
work in connection therewith shall be performed by contractors approved by
Landlord and shall be subject to the direction of Landlord. Landlord reserves
the right to designate and control the entity or entities providing telephone or
other communication cable installation, repair and maintenance in the Building
and to restrict and control access to telephone cabinets. If Landlord designates
a particular vendor or vendors to provide telephone and data cable installation,
repair and maintenance for the Building, Tenant agrees to abide by and
participate in such program. Tenant shall be responsible for and shall pay all
costs incurred in connection with the installation of telephone cables and
related wiring in the Premises, including, without limitation, any hook-up,
access and maintenance fees related to the installation of such wires and cables
in the Premises and the commencement of services therein, and the maintenance
thereafter of such wire and cables; and there shall be included in Expenses for
the Building all installation, hook-up or maintenance costs incurred by Landlord
in connection with telephone cables and related wiring in the Building which are
not allocable to any individual users of such service but are allocable to the
Building generally. If Tenant fails to maintain all telephone cables and related
wiring in the Premises and such failure affects or interferes with the operation
or maintenance of any other telephone cables or related wiring in the Building,
Landlord or any vendor hired by Landlord may enter into and upon the Premises
forthwith and perform such repairs, restorations or alterations as Landlord
deems necessary in order to eliminate any such interference (and Landlord may
recover from Tenant all of Landlord's costs in connection therewith). Upon
expiration of the Term hereof Tenant shall remove all telephone cables and
related wiring installed by or for Tenant which Landlord requests Tenant to
remove. Tenant
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agrees that neither Landlord nor any of its agents or employees shall be liable
to Tenant, or any of Tenant's employees, agents, customers or invitees or anyone
claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution,
delay or discontinuance at any time for any reason in the furnishing of any
telecommunications service to the Premises or the Building.
D. Additional Services. The standard hours of operation of the Building's
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heating and air conditioning systems are Monday through Friday, 8:00 a.m. to
6:00 p.m., Saturdays, 8:00 a.m. to 1:00 p.m., holidays excepted. If Tenant
operates the heating and air conditioning systems serving the Premises beyond
the foregoing standard hours of operation, then (i) Tenant shall pay to Landlord
for such after-hours use of the heat pumps an amount equal to the product of (x)
the number of hours each such heat pump is used (as indicated by the DDC program
for the heat pump) multiplied by (y) the then-current hourly charge for
operating each heat pump for heating or cooling, as the case may be (which
charge shall include Landlord's electric costs, at the rates then charged by the
Building's electricity provider, and a reasonable fee to Landlord for
maintenance and repair of the heat pumps), and (ii) such operation will activate
the Building's fan system, and Tenant shall pay Landlord for such after-hours
operation of the Building's fan system at the rate of $16.00 per hour (subject
to increase by 3% per year each year of the Term [i.e., such rate will be $16.48
for the second year of the Term, $16.97 for the third year of the Term, $17.48
for the fourth year of the Term, and so on]). Furthermore, if due to an unusual
concentration of personnel or machinery in the Premises (compared to typical
office use), or an unusually large number of heat pumps serving the Premises
(compared to the number of heat pumps serving the other premises in the
Building), the heat pumps serving the Premises consume a disproportionate amount
of electricity, Tenant shall pay the costs and charges for such excess usage to
Landlord. Tenant shall pay all such costs relating to after-hours or excessive
use of the heating or air conditioning systems serving the Premises within 10
days after being billed therefor.
Landlord shall not be obligated to furnish any services other than those
stated above in this Section 5. If Landlord elects to furnish services requested
by Tenant in addition to those stated above, Tenant shall pay Landlord's then
prevailing charges for such services. If Tenant shall fail to make any such
payment, Landlord may, without notice to Tenant and in addition to all other
remedies available to Landlord, discontinue any additional services. No
discontinuance of any such additional service shall result in any liability of
Landlord to Tenant or be considered as an eviction or a disturbance of Tenant's
use of the Premises. In addition, if Tenant's concentration of personnel or
equipment adversely affects the temperature or humidity in the Premises or the
Building, Landlord may install supplementary air conditioning units in the
Premises; and Tenant shall pay for the cost of installation and maintenance
thereof.
E. Failure or Delay in Furnishing Services. Tenant agrees that Landlord
---------------------------------------
shall not be liable for damages for failure or delay in furnishing any service
stated above if such failure or delay is caused, in whole or in part, by any one
or more of the events stated in Section 25J below, nor shall any such failure or
delay be considered to be an eviction or disturbance of Tenant's use of the
Premises, or relieve Tenant from its obligation to pay any Rent when due, or
from any
8
other obligations of Tenant under this Lease. Notwithstanding the foregoing, if
as a result of an act or omission of Landlord or any employee of Landlord (as
distinguished from an act or omission of Tenant or the occurrence of an event of
force majeure [as defined in Section 25J hereof] or the occurrence of a fire or
other casualty which is covered by Section 12 hereof), any service to the
Premises as described above is not furnished to the Premises and if as a result
thereof the Premises, or a "material part" (as defined below) of the Premises,
is rendered untenantable or inaccessible for a period of five consecutive
business days, and Tenant does not occupy the Premises, or such material part
thereof which is rendered untenantable or inaccessible, during such 5-business
day period, then as Tenant's sole remedy for such failure to furnish such
service, Base Rent and Adjustment Rent payable for such portion of the Premises
which Tenant does not so occupy shall ▇▇▇▇▇ for the period commencing on the
expiration of said five business day period and expiring on the date such
service is restored or Tenant is able to resume occupancy of the Premises or
such material part thereof, as the case may be. (As used herein, the phrase
"material part" shall mean an amount in excess of 20% of the Rentable Area of
the Premises.)
6. RULES AND REGULATIONS. Tenant shall observe and comply and shall cause
its subtenants, assignees, invitees, employees, contractors and agents to
observe and comply, with the rules and regulations listed on Exhibit B attached
hereto and with such reasonable modifications and additions thereto as Landlord
may make from time to time. Landlord shall not be liable for failure of any
person to obey such rules and regulations. Landlord shall not be obligated to
enforce such rules and regulations against any person, and the failure of
Landlord to enforce any such rules and regulations shall not constitute a waiver
thereof or relieve Tenant from compliance therewith.
7. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights, each of which Landlord may exercise without notice to Tenant (except as
otherwise provided) and without liability to Tenant, and the exercise of any
such rights shall not be deemed to constitute an eviction or disturbance of
Tenant's use or possession of the Premises and shall not give rise to any claim
for set-off or abatement of rent or any other claim: (a) to change the name or
street address of the Building or the suite number of the Premises (provided
that if such change is not required by any governmental or quasi-governmental
entity [e.g., the U.S. Postal Service], Landlord shall reimburse Tenant for the
cost of replacing stationery then in stock that is rendered obsolete due to such
change [not to exceed $2,000]); (b) to install, affix and maintain any and all
signs on the exterior or interior of the Building; (c) upon reasonable prior
oral or telephonic notice to Tenant at the Premises (excluding emergencies, when
no such notice shall be required) to make repairs, decorations, alterations,
additions, or improvements, whether structural or otherwise, in and about the
Building, and for such purposes to enter upon the Premises, temporarily close
doors, corridors and other areas in the Building and interrupt or temporarily
suspend services or use of common areas, and Tenant agrees to pay Landlord for
overtime and similar expenses incurred if such work is done other than during
ordinary business hours at Tenant's request; (d) to retain at all times, and to
use in appropriate instances, keys to all doors within and into the Premises;
(e) to grant to any person or to reserve unto itself the
9
exclusive right to conduct any business or render any service in the Building;
(f) upon reasonable prior oral or telephonic notice to Tenant at the Premises,
to show or inspect the Premises at reasonable times and, if vacated or
abandoned, to prepare the Premises for reoccupancy; (g) to install, use and
maintain in and through the Premises, pipes, conduits, wires and ducts serving
the Building, provided that such installation, use and maintenance does not
unreasonably interfere with Tenant's use of the Premises; and (h) to take any
other action which Landlord deems reasonable in connection with the operation,
maintenance or preservation of the Building.
8. MAINTENANCE AND REPAIRS. Tenant, at its expense, shall maintain and
keep the Premises in good order and repair at all times during the Term. In
addition, Tenant shall reimburse Landlord for the cost of any repairs to the
Building necessitated by the acts or omissions of Tenant, its subtenants,
assignees, invitees, employees, contractors and agents, to the extent Landlord
is not reimbursed for such costs under its insurance policies. Subject to the
preceding sentence, Landlord shall perform any maintenance or make any repairs
to the Building as Landlord shall desire or deem necessary for the safety,
operation or preservation of the Building, or as Landlord may be required or
requested to do by any governmental authority or by the order or decree of any
court or by any other proper authority.
9. ALTERATIONS.
A. Requirements. Tenant shall not make any replacement, alteration,
------------
improvement or addition to or removal from the Premises (collectively an
"alteration") without the prior written consent of Landlord, which consent shall
not be unreasonably withheld or delayed. Notwithstanding the foregoing, no
consent shall be necessary for any decorative or cosmetic alteration (or related
alteration) that (i) costs less than $15,000 (provided such alteration is not
part of related alterations which cost, in the aggregate, more than $15,000),
(ii) does not require the issuance of a building permit and (iii) does not
adversely affect the structural elements of the Building or the base Building
mechanical, electrical or plumbing systems, the architectural aesthetics of the
Building, the common areas of the Building or the use by other tenants in the
Building of their demised premises (provided that even if Landlord's consent is
not necessary for such an alteration, the following provisions of this Section
9A shall apply). In the event Tenant proposes to make any alteration, Tenant
shall, prior to commencing such alteration, submit to Landlord for prior written
approval: (i) detailed plans and specifications; (ii) sworn statements,
including the names, addresses and copies of contracts for all contractors;
(iii) all necessary permits evidencing compliance with all applicable
governmental rules, regulations and requirements; (iv) certificates of insurance
in form and amounts required by Landlord, naming Landlord and any other parties
designated by Landlord as additional insureds; and (v) all other documents and
information as Landlord may reasonably request in connection with such
alteration. Tenant agrees to reimburse Landlord for Landlord's actual
out-of-pocket costs and fees incurred in reviewing all such items and
supervising the alteration. Neither approval of the plans and specifications nor
supervision of the alteration by Landlord shall constitute a representation or
warranty by Landlord as to the accuracy, adequacy, sufficiency or propriety of
such plans and specifications or the quality of workmanship or the compliance of
such alteration
10
with applicable law. Tenant shall pay the entire cost of the alteration and, if
requested by Landlord, shall deposit with Landlord prior to the commencement of
the alteration, security for the payment and completion of the alteration in
form and amount required by Landlord. Each alteration shall be performed in a
good and workmanlike manner, in accordance with the plans and specifications
approved by Landlord, and shall meet or exceed the standards for construction
and quality of materials established by Landlord for the Building. In addition,
each alteration shall be performed in compliance with all applicable
governmental and insurance company laws, regulations and requirements. Each
alteration shall be performed by union contractors if required by Landlord and
in harmony with Landlord's employees, contractors and other tenants. Each
alteration, whether temporary or permanent in character, made by Landlord or
Tenant in or upon the Premises (excepting only Tenant's furniture, equipment and
trade fixtures) shall become Landlord's property and shall remain upon the
Premises at the expiration or termination of this Lease without compensation to
Tenant; provided, however, that Landlord shall have the right to require Tenant
to remove such alteration at Tenant's sole cost and expense in accordance with
the provisions of Section 15 of this Lease.
B. Liens. Upon completion of any alteration, Tenant shall promptly furnish
-----
Landlord with sworn owner's and contractors statements and full and final
waivers of lien covering all labor and materials included in such alteration.
Tenant shall not permit any mechanic's lien to be filed against the Building, or
any part thereof, arising out of any alteration performed, or alleged to have
been performed, by or on behalf of Tenant. If any such lien is filed, Tenant
shall within ten days thereafter have such lien released of record or deliver to
Landlord a bond in form, amount, and issued by a surety satisfactory to
Landlord, indemnifying Landlord against all costs and liabilities resulting from
such lien and the foreclosure or attempted foreclosure thereof. If Tenant fails
to have such lien so released or to deliver such bond to Landlord, Landlord,
without investigating the validity of such lien, may pay or discharge the same;
and Tenant shall reimburse Landlord upon demand for the amount so paid by
Landlord, including Landlord's expenses and attorneys' fees.
10. INSURANCE.
A. Tenant's Insurance. Tenant, at its expense, shall maintain at all times
------------------
during the Term the following insurance policies: (a) fire insurance, including
extended coverage, vandalism, malicious mischief, sprinkler leakage, water
damage and all risk coverage and demolition and debris removal, insuring the
full replacement cost of all improvements, alterations or additions to the
Premises made at Tenant's expense, and all other property owned or used by
Tenant and located in the Premises; (b) commercial general liability insurance,
including blanket contractual liability insurance, with respect to the Building
and the Premises, with limits to be set by Landlord from time to time but in any
event not less than $3,000,000 each occurrence combined single limit for bodily
injury, sickness or death or for damage to or destruction of property, including
loss of use thereof; (c) workers' compensation and occupational disease
insurance with Illinois statutory benefits and employers liability insurance
with limits of not less than $3,000,000 each accident, each disease and
aggregate for disease; and
11
(d) insurance against such other risks and in such other amounts as Landlord may
from time to time require. The form of all such policies and deductibles
thereunder shall be subject to Landlord's prior approval. All such policies
shall be issued by insurers acceptable to Landlord and licensed to do business
in Illinois. The insurance policies shall name Landlord, any mortgage lender
(currently Citigroup, Inc.), their respective affiliates, subsidiaries,
successors and assigns, the property manager and any other parties designated by
Landlord as additional insureds. All policies shall require at least thirty (30)
days' prior written notice to Landlord of termination or modification and shall
be primary and not contributory. Tenant shall at least ten (10) days prior to
the Commencement Date, and within ten (10) days prior to the expiration of each
such policy, deliver to Landlord certificates evidencing the foregoing insurance
or renewal thereof, as the case may be.
B. Mutual Waiver of Subrogation. Landlord and Tenant each agree that
----------------------------
neither Landlord nor Tenant (nor their respective successors or assigns) will
have any claim against the other for any loss, damage or injury to property
which is covered by insurance carried by either party (or, with respect to
Tenant, which would have been covered if Tenant had carried the insurance
required by this Lease), notwithstanding the negligence of either party in
causing the loss. The waiver also applies to each party's directors, officers,
employees, shareholders and agents. The waiver does not apply to claims caused
by a party's wilful misconduct.
If despite a party's best efforts it cannot find an insurance company (in
the case of Tenant, meeting the requirements of Section 10A) that will allow a
waiver at reasonable commercial rates, then it shall give notice to the other
party within 30 days after discovering such situation. The other party shall
then have 30 days to find an insurance company that will allow the waiver. If
the other party cannot find such an insurance company, then both parties shall
be released from their obligation to obtain the waiver.
If an insurance company is found but it will allow the waiver only at rates
greater than reasonable commercial rates, then the parties can agree to pay for
the waiver under any agreement they can negotiate. If the parties cannot in good
faith negotiate an agreement, then both parties shall be released from their
obligation to obtain the waiver.
11. WAIVER AND INDEMNITY.
A. Waiver. Tenant releases Landlord, its property manager and their
------
respective agents and employees from, and waives all claims for, damage or
injury to person or property and loss of business sustained by Tenant and
resulting from the Building or the Premises or any part thereof or any equipment
therein becoming in disrepair, or resulting from any accident in or about the
Building. This paragraph shall apply particularly, but not exclusively, to
flooding, damage caused by Building equipment and apparatus, water, snow, frost,
steam, excessive heat or cold, broken glass, sewage, gas, odors, excessive noise
or vibration or the bursting or leaking of pipes, plumbing fixtures or sprinkler
devices. Without limiting the generality of the foregoing, Tenant waives all
claims and rights of recovery against Landlord, its property manager and their
12
respective agents and employees for any loss or damage to any property of
Tenant, which loss or damage is insured against, or required to be insured
against, by Tenant pursuant to Section 10 above, whether or not such loss or
damage is due to the fault or negligence of Landlord, its property manager or
their respective agents or employees, and regardless of the amount of insurance
proceeds collected or collectible under any insurance policies in effect.
B. Tenant's Indemnity. Tenant agrees to indemnify, defend and hold harmless
------------------
Landlord, its property manager and their respective agents and employees, from
and against any and all claims, demands, actions, liabilities, damages, costs
and expenses (including reasonable attorneys' fees), for injuries to any third
parties and damage to or theft or misappropriation or loss of property of third
parties occurring in or about the Building and arising from the use and
occupancy of the Premises or from any activity, work, or thing done, permitted
or suffered by Tenant in or about the Premises (including, without limitation,
any alteration by Tenant) or from any breach or default on the part of Tenant in
the performance of any covenant or agreement on the part of Tenant to be
performed under this Lease or due to any other act or omission of Tenant, its
subtenants, assignees, invitees, employees, contractors and agents. Without
limiting the foregoing, Tenant shall indemnify, defend and hold Landlord
harmless from any claims, liabilities, damages, costs and expenses arising out
of the use or storage of hazardous or toxic materials in the Building by Tenant.
If any such proceeding is filed against Landlord or any such indemnified party,
Tenant agrees to defend Landlord or such party in such proceeding at Tenant's
sole cost by legal counsel reasonably satisfactory to Landlord, if requested by
Landlord.
C. Landlord's Indemnity. Subject to the provisions of Section 25N below,
--------------------
Landlord agrees to indemnify, defend and hold harmless Tenant and its agents and
employees, from and against any and all claims, demands, actions, liabilities,
damages, costs and expenses (including reasonable attorneys' fees), for injuries
to any third parties and damage to or theft or misappropriation or loss of
property of third parties occurring in or about the Building and arising from
any breach or default on the part of Landlord in the performance of any covenant
or agreement on the part of Landlord to be performed under this Lease or due to
any other negligent act or omission or wilful misconduct of Landlord, its
employees, contractors and agents. If any such proceeding is filed against
Tenant or any such indemnified party, Landlord agrees to defend Tenant or such
party in such proceeding at Landlord's sole cost by legal counsel reasonably
satisfactory to Tenant, if requested by Tenant. Notwithstanding anything
contained in this Section 11C to the contrary, Landlord shall not be required to
indemnify Tenant or its agents and employees from or in respect of any claim or
matter which results from the negligence or wilful misconduct of Tenant or its
agents and employees.
12. FIRE AND CASUALTY. Upon a fire or other casualty affecting the
Building, Landlord, with reasonable diligence, shall restore the Building.
Notwithstanding the foregoing, if all or a substantial part of the Premises or
the Building is rendered untenantable by reason of fire or other casualty,
Landlord may, at its option, either restore the Premises and the Building, or
terminate this Lease effective as of the date of such fire or other casualty.
Landlord agrees to give Tenant written notice within 60 days after the
occurrence of any such fire or other casualty
13
designating whether Landlord elects to so restore or terminate this Lease. If
Landlord elects to terminate this Lease, Rent shall be paid through and
apportioned as of the date of such fire or other casualty. If Landlord elects to
restore, Landlord's obligation to restore the Premises shall be limited to
restoring those improvements in the Premises existing as of the date of such
fire or other casualty which were made at Landlord's expense and shall exclude
any furniture, equipment, fixtures, additions, alterations or improvements in or
to the Premises which were made at Tenant's expense. If Landlord elects to
restore, Rent shall ▇▇▇▇▇ for that part of the Premises which is untenantable on
a per diem basis from the date of such fire or other casualty until Landlord has
substantially completed its repair and restoration work, provided that Tenant
does not occupy such part of the Premises during said period. Notwithstanding
anything contained in this Section 12 to the contrary, within 60 days after the
date of any fire or other casualty which renders all or a substantial part of
the Premises or the Building untenantable, Landlord shall provide to Tenant in
writing Landlord's good faith estimate of the time required by Landlord to
restore the Premises. If Landlord's good faith estimate of the time required to
restore the Premises exceeds 270 days from the date of such fire or casualty,
then Tenant shall have the right, exercisable by written notice to Landlord
within 15 days after delivery of Landlord's good faith estimate, to terminate
this Lease as of the date of such fire or other casualty. Notwithstanding the
foregoing, Tenant shall have no right to terminate this Lease if the fire or
other casualty was caused, in whole or in part, by the negligence or intentional
misconduct of Tenant or Tenant's agents, employees, contractors, invitees,
subtenants or assigns.
13. CONDEMNATION. If the Premises or the Building is rendered untenantable
by reason of a condemnation (or by a deed given in lieu thereof), then either
party may terminate this Lease by giving written notice of termination to the
other party within 30 days after such condemnation, in which event this Lease
shall terminate effective as of the date which is the day immediately preceding
the date of such condemnation. If this Lease so terminates, Rent shall be paid
through and apportioned as of such termination date. If such condemnation does
not render the Premises or the Building untenantable, this Lease shall continue
in effect and Landlord shall promptly restore the portion not condemned to the
extent reasonably possible to the condition existing prior to the condemnation.
In such event, however, Landlord shall not be required to expend an amount in
excess of the proceeds received by Landlord from the condemning authority.
Landlord reserves all rights to compensation for any condemnation. Tenant hereby
assigns to Landlord any right Tenant may have to such compensation, and Tenant
shall make no claim against Landlord or the condemning authority for
compensation for termination of Tenant's leasehold interest under this Lease or
interference with Tenant's business.
14. ASSIGNMENT AND SUBLETTING.
A. Landlord's Consent. Tenant shall not, without the prior written consent
------------------
of Landlord (which consent, with respect to a proposed assignment or sublease,
shall not be unreasonably withheld as provided in Section 14.B): (i) assign,
convey, mortgage or otherwise transfer this Lease or any interest hereunder, or
sublease the Premises, or any part thereof, whether voluntarily or by operation
of law; or (ii) permit the use of the Premises by any person
14
other than Tenant and its employees. Any such transfer, sublease or use
described in the preceding sentence (a "Transfer") occurring without the prior
written consent of Landlord shall be void and of no effect. Landlord's consent
to any Transfer shall not constitute a waiver of Landlord's right to withhold
its consent to any future Transfer. Landlord's consent to any Transfer or
acceptance of rent from any party other than Tenant shall not release Tenant
from any covenant or obligation under this Lease. Landlord may require as a
condition to its consent to any assignment of this Lease that the assignee
execute an instrument in which such assignee assumes the obligations of Tenant
hereunder. For the purposes of this paragraph, the transfer (whether direct or
indirect) of all or a majority of the capital stock in a corporate Tenant (other
than the shares of the capital stock of a corporate Tenant whose stock is
publicly traded) or the merger, consolidation or reorganization of such Tenant
and the transfer of all or any general partnership interest in any partnership
Tenant shall be considered a Transfer. If Tenant is a general or limited
partnership (or is comprised of two or more persons or entities), the change or
conversion of Tenant to (i) a limited liability company, (ii) a limited
liability partnership or (iii) any other entity which possesses the
characteristics of limited liability shall be prohibited unless the prior
written consent of Landlord is obtained, which consent may be withheld in
Landlord's sole discretion. Any such change or conversion without Landlord's
consent shall not release the individuals or entities comprising Tenant from
personal liability hereunder. Notwithstanding anything contained in this Section
14A to the contrary, provided Tenant is not then Default under this Lease,
Tenant shall have the right to assign this Lease or sublease the Premises, or
any part thereof, to an "Affiliate" (as defined below) without the prior written
consent of Landlord (and without Landlord having the right to receive any share
of the excess consideration or to recapture the applicable part of the Premises,
as otherwise provided in Sections 14.B and 14.C, respectively), but only upon at
least 10 days prior written notice to Landlord and subject to all of the other
provisions of this Lease, specifically including, without limitation, the
continuation of liability of Tenant under this Lease. Upon an assignment of this
Lease to an Affiliate, the Affiliate shall assume the obligations of the tenant
under this Lease from and after the effective date of such assignment pursuant
to a written assumption agreement executed and delivered to Landlord prior to
the effective date of such assignment. "Affiliate" shall mean any corporation or
other entity controlling, controlled by or under the common control with Tenant
or the surviving entity formed as a result of a merger or consolidation with
Tenant. The word "control", as used herein, shall mean the power to direct or
cause the direction of the management and policies of the controlled entity
through ownership of more than 50% of the voting securities in such controlled
entity. Nothing contained in this Section 14A shall permit an assignment of this
Lease or the subleasing of the Premises to any Affiliate that is disreputable,
non-creditworthy or otherwise not in keeping with the nature or class of tenants
in the Building, as reasonably determined by Landlord. Notwithstanding anything
contained in this Section 14A to the contrary, provided Tenant is not then
Default under this Lease, Tenant shall have the right to assign this Lease or
sublease the Premises, or any part thereof, to an "Affiliate" (as defined below)
without the prior written consent of Landlord, but only upon at least 10 days
prior written notice to Landlord and subject to all of the other provisions of
this Lease, specifically including, without limitation, the continuation of
liability of Tenant under this Lease. Upon an assignment of this Lease to an
Affiliate, the Affiliate shall assume the obligations of the tenant under this
15
Lease from and after the effective date of such assignment pursuant to a written
assumption agreement executed and delivered to Landlord prior to the effective
date of such assignment. "Affiliate" shall mean any corporation or other entity
controlling, controlled by or under the common control with Tenant or the
surviving entity formed as a result of a merger or consolidation with Tenant.
The word "control", as used herein, shall mean the power to direct or cause the
direction of the management and policies of the controlled entity through
ownership of more than 50% of the voting securities in such controlled entity.
Nothing contained in this Section 14A shall permit an assignment of this Lease
or the subleasing of the Premises to any Affiliate that is disreputable,
non-creditworthy or otherwise not in keeping with the nature or class of tenants
in the Building, as reasonably determined by Landlord.
B. Standards for Consent. If Tenant desires the consent of Landlord to a
---------------------
Transfer, Tenant shall submit to Landlord, at least 30 days prior to the
proposed effective date of the Transfer, a written notice which includes such
information as Landlord may require about the proposed Transfer and the
transferee. If Landlord does not terminate this Lease, in whole or in part,
pursuant to Section 14C, Landlord shall not unreasonably withhold its consent to
any assignment or sublease. Landlord shall not be deemed to have unreasonably
withheld its consent if, in the judgment of Landlord: (i) the transferee is of a
character or engaged in a business which is not in keeping with the standards or
criteria used by Landlord in leasing the Building; (ii) the financial condition
of the transferee is such that it may not be able to perform its obligations in
connection with this Lease; (iii) the purpose for which the transferee intends
to use the Premises or portion thereof is in violation of the terms of this
Lease or the lease of any other tenant in the Building; (iv) the transferee is a
tenant of the Building (unless Landlord does not then itself have suitable space
available for leasing to the proposed transferee); or (v) any other bases which
Landlord reasonably deems appropriate. If Landlord consents to any Transfer,
Tenant shall pay to Landlord one-half of all rent and other consideration
received by Tenant in excess of the Rent paid by Tenant to Landlord hereunder
for the portion of the Premises so transferred. Such rent shall be paid as and
when received by Tenant. In addition, Tenant shall pay to Landlord any
reasonable attorneys' fees and expenses incurred by Landlord in connection with
any proposed Transfer, whether or not Landlord consents to such Transfer (which
shall not exceed $500, provided the Transfer is a typical sublease or assignment
transaction). If Landlord wrongfully withholds its consent to any Transfer,
Tenant's sole and exclusive remedy therefor, shall be to seek specific
performance of Landlord's obligation to consent to such Transfer.
C. Recapture. If Tenant proposes to (i) assign this Lease or sublet more
---------
than 33% of the Premises, (ii) sublet any part of the Premises for more than
five years or (iii) extend or renew any existing sublease of any part of the
Premises or sublet any part of the Premises that has previously been sublet such
that the applicable part of the Premises will have been sublet (by one or more
parties) for more than five years, then Landlord shall have the right to
terminate this Lease as to that portion of the Premises covered by the Transfer.
Landlord may exercise such right to terminate by giving notice to Tenant at any
time within 30 days after the date on which Tenant has furnished to Landlord all
of the items required under Section 14B above. If Landlord exercises such right
to terminate, Landlord shall be entitled to recover possession of, and Tenant
16
shall surrender such portion of, the Premises (with appropriate demising
partitions erected at the expense of Tenant) on the later of (i) the effective
date of the proposed Transfer, or (ii) 60 days after the date of Landlord's
notice of termination. In the event Landlord exercises such right to terminate,
Landlord shall have the right to enter into a lease with the proposed transferee
without incurring any liability to Tenant on account thereof.
15. SURRENDER. Upon termination of the Term or Tenant's right to possession
of the Premises, Tenant shall return the Premises to Landlord in good order and
condition, ordinary wear and damage by fire or other casualty excepted. If
Landlord requires Tenant to remove any alterations pursuant to Section 9, then
such removal shall be done in a good and workmanlike manner; and upon such
removal Tenant shall restore the Premises to its condition prior to the
installation of such alterations. If Tenant does not remove such alterations
after request to do so by Landlord, Landlord may remove the same and restore the
Premises; and Tenant shall pay the reasonable cost of such removal and
restoration to Landlord upon demand. Tenant shall also remove its furniture,
equipment, trade fixtures and all other items of personal property from the
Premises prior to the termination of the Term or Tenant's right to possession of
the Premises. If Tenant does not remove such items, Tenant shall be conclusively
presumed to have conveyed the same to Landlord without further payment or credit
by Landlord to Tenant; or at Landlord's sole option such items shall be deemed
abandoned, in which event Landlord may cause such items to be removed and
disposed of at Tenant's expense, without notice to Tenant and without obligation
to compensate Tenant.
16. DEFAULTS AND REMEDIES.
A. Default. The occurrence of any of the following shall constitute a
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default (a "Default") by Tenant under this Lease: (i) Tenant fails to pay any
Rent when due (and, only with respect to the first two of such defaults within
any 12 month period, such default shall continue for five days after written
notice to Tenant); (ii) Tenant fails to perform any other provision of this
Lease and such failure is not cured within 30 days (or immediately if the
failure involves a hazardous condition) after notice from Landlord; (iii) the
leasehold interest of Tenant is levied upon or attached under process of law;
(iv) Tenant or any guarantor of this Lease dies or dissolves; or (v) any
voluntary or involuntary proceedings are filed by or against Tenant or any
guarantor of this Lease under any bankruptcy, insolvency or similar laws and, in
the case of any involuntary proceedings, are not dismissed within 30 days after
filing.
B. Right of Re-Entry. Upon the occurrence of a Default, Landlord may elect
-----------------
to terminate this Lease, or, without terminating this Lease, terminate Tenant's
right to possession of the Premises. Upon any such termination, Tenant shall
immediately surrender and vacate the Premises and deliver possession thereof to
Landlord. Tenant grants to Landlord the right to enter and repossess the
Premises and to expel Tenant and any others who may be occupying the Premises
and to remove any and all property therefrom, without being deemed in any manner
guilty of trespass and without relinquishing Landlord's rights to Rent or any
other right given to Landlord hereunder or by operation of law.
17
C. Reletting. If Landlord terminates Tenant's right to possession of the
---------
Premises without terminating this Lease, Landlord may relet the Premises or any
part thereof. In such case, Landlord shall use reasonable efforts to relet the
Premises on such terms as Landlord shall reasonably deem appropriate; provided,
however, Landlord may first lease Landlord's other available space and shall not
be required to accept any tenant offered by Tenant or to observe any
instructions given by Tenant about such reletting. Tenant shall reimburse
Landlord for the reasonable costs and expenses of reletting the Premises
including, but not limited to, all brokerage, advertising, legal, alteration and
other expenses incurred to secure a new tenant for the Premises. In addition, if
the consideration collected by Landlord upon any such reletting, after payment
of the expenses of reletting the Premises which have not been reimbursed by
Tenant, is insufficient to pay monthly the full amount of the Rent, Tenant shall
pay to Landlord the amount of each monthly deficiency as it becomes due. If such
consideration is greater than the amount necessary to pay the full amount of the
Rent, the full amount of such excess shall be retained by Landlord and shall in
no event be payable to Tenant.
D. Termination of Lease. If Landlord terminates this Lease, Landlord may
--------------------
recover from Tenant and Tenant shall pay to Landlord, on demand, as and for
liquidated and final damages, an accelerated lump sum amount equal to the amount
by which Landlord's estimate of the aggregate amount of Rent owing from the date
of such termination through the Expiration Date plus Landlord's estimate of the
aggregate expenses of reletting the Premises, exceeds Landlord's estimate of the
fair rental value of the Premises for the same period (after deducting from such
fair rental value the time needed to relet the Premises and the amount of
concessions which would normally be given to a new tenant), both discounted to
present value at the rate of 5% per annum.
E. Other Remedies. Landlord may but shall not be obligated to perform any
--------------
obligation of Tenant under this Lease; and, if Landlord so elects, all costs and
expenses paid by Landlord in performing such obligation, together with interest
at the Default Rate, shall be reimbursed by Tenant to Landlord on demand. Any
and all remedies set forth in this Lease: (i) shall be in addition to any and
all other remedies Landlord may have at law or in equity, (ii) shall be
cumulative, and (iii) may be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall not be deemed an
election of remedies or preclude Landlord from exercising any other remedies in
the future.
F. Bankruptcy. If Tenant becomes bankrupt, the bankruptcy trustee shall not
----------
have the right to assume or assign this Lease unless the trustee complies with
all requirements of the United States Bankruptcy Code; and Landlord expressly
reserves all of its rights, claims, and remedies thereunder.
G. Waiver of Trial by Jury. Landlord and Tenant waive trial by jury in the
-----------------------
event of any action, proceeding or counterclaim brought by either Landlord or
Tenant against the other in connection with this Lease.
18
H. Venue. If either Landlord or Tenant desires to bring an action against
-----
the other in connection with this Lease, such action shall be brought in the
federal or state courts located in Chicago, Illinois. Landlord and Tenant
consent to the jurisdiction of such courts and waive any right to have such
action transferred from such courts on the grounds of improper venue or
inconvenient forum.
17. HOLDING OVER. If Tenant retains possession of the Premises after the
expiration or termination of the Term or Tenant's right to possession of the
Premises, Tenant shall pay Rent during such holding over at double the rate in
effect immediately preceding such holding over computed on a monthly basis for
each month or partial month that Tenant remains in possession (provided that
except for a termination pursuant to Section 27, during the first 90 days of
such holding over, the Rent shall instead be 150% of the rate in effect
immediately preceding such holding over). Tenant shall also pay, indemnify and
defend Landlord from and against all claims and damages, consequential as well
as direct, sustained by reason of Tenant's holding over. The provisions of this
Section do not waive Landlord's right of re-entry or right to regain possession
by actions at law or in equity or any other rights hereunder, and any receipt of
payment by Landlord shall not be deemed a consent by Landlord to Tenant's
remaining in possession or be construed as creating or renewing any lease or
right of tenancy between Landlord and Tenant.
18. SECURITY DEPOSIT.
A. Security Deposit. At the time of signing this Lease, Tenant shall
----------------
deposit with Landlord an unconditional, irrevocable letter of credit in
Landlord's favor in the amount set forth in Item 5 of the Schedule (the "LOC"),
which LOC shall be freely assignable by Landlord, issued by a "Qualified Issuer"
approved by Landlord, drawable in Chicago, Illinois and in the form of the
letter of credit attached hereto as Exhibit G, which deposit is to be retained
by Landlord as security for the faithful performance and observance by Tenant of
the covenants, agreements and conditions of this Lease. The LOC and any proceeds
drawn thereunder or any other cash or security deposited by Tenant with Landlord
under this Lease are hereinafter collectively called the "Security Deposit." If
and to the extent permitted by applicable law, (a) Tenant shall not be entitled
to any interest on the Security Deposit, (b) Landlord shall not be obligated to
hold the Security Deposit in trust or in a separate account, and (c) Landlord
shall have the right to commingle the Security Deposit with its other funds.
Landlord may use, apply or retain the whole or any part of the Security Deposit
to the extent required for the payment of any Rent payable hereunder as to which
Tenant is in Default or to the extent required for the reimbursement to Landlord
of any sum which Landlord may expend or may be required to expend by reason of
any Default. Upon notice by Landlord of Landlord's application of all or any
portion of the Security Deposit as aforesaid, Tenant shall replenish the
Security Deposit in full by promptly paying to Landlord in cash the amount so
applied. If Tenant shall fully and faithfully comply with all of the covenants,
agreements and conditions of this Lease, the Security Deposit (or balance
thereof) shall be returned to Tenant after the date fixed as the expiration of
the Term and surrender of the Premises to Landlord. If the Building is sold to a
bona fide purchaser,
19
Landlord shall have the right to transfer the Security Deposit to such
purchaser, by which transfer Landlord shall be released from all liability for
the return thereof, and Tenant shall look solely to the new landlord for the
return thereof. Landlord shall promptly respond to Tenant's request at the time
of such transfer concerning the status of the Security Deposit.
B. Replacement Letter of Credit. Tenant shall deposit with Landlord not
----------------------------
later than 60 days prior to the expiration date of the original LOC deposited by
Tenant hereunder (and not later than 60 days prior to the expiration date of
each replacement LOC deposited by Tenant hereunder), a replacement LOC in form,
content and amount identical to the original LOC and issued by a "Qualified
Issuer" approved by Landlord. If Tenant fails to timely deposit any such
replacement LOC with Landlord and such failure continues for 10 days after
written notice to Tenant (and which failure is not subject to any notice and
cure period under Section 16), then Landlord may draw the entire proceeds of the
LOC then on deposit with Landlord and the proceeds so drawn shall constitute and
comprise part of the Security Deposit and may be held, transferred and applied
by Landlord in accordance with the provisions of this Section 18.
C. Qualified Issuer. For purposes of this Lease, "Qualified Issuer" means
----------------
any commercial bank which, at the particular time its status as a Qualified
Issuer is relevant hereunder, has total assets of at least U.S. $500 million and
has an overall financial rating of "B" or better from the Lace Company (and the
Lace Company has not given notice that such bank is on its "watch list" or that
its rating is under reconsideration or reevaluation). If at any time after
issuance of the LOC (or any replacement LOC), the issuing bank fails to be a
Qualified Issuer or is not otherwise financially sound in Landlord's sole
judgment, the LOC or replacement LOC, as the case may be, upon written notice
from Landlord to Tenant, shall be immediately reissued by a Qualified Issuer
approved by Landlord, which reissuance shall be in accordance with the
provisions of this Lease.
19. [Intentionally Deleted).
20. ESTOPPEL CERTIFICATES. Tenant agrees that, from time to time upon not
less than 15 days' prior request by Landlord, Tenant shall execute and deliver
to Landlord a written certificate certifying: (i) that this Lease is unmodified
and in full force and effect (or if there have been modifications, a description
of such modifications and that this Lease as modified is in full force and
effect); (ii) the dates to which Rent has been paid; (iii) that Tenant is in
possession of the Premises, if that is the case; (iv) that Landlord is not in
default under this Lease, or, if Tenant believes Landlord is in default, the
nature thereof in detail; (v) that Tenant has no off-sets or defenses to the
performance of its obligations under this Lease (or if Tenant believes there are
any off-sets or defenses, a full and complete explanation thereof); and (vi)
such additional matters as may be requested by Landlord, it being agreed that
such certificate may be relied upon by any prospective purchaser, mortgagee or
other person having or acquiring an interest in the Building. If Tenant fails to
execute and deliver any such certificate within 15 days after request, such
failure shall constitute a Default hereunder (without the necessity for the
delivery of any additional notice as otherwise required pursuant to Section 16).
20
21. SUBORDINATION. This Lease is and shall be expressly subject and
subordinate at all times to (a) any present or future ground, underlying or
operating lease of the Building, and all amendments, renewals and modifications
to any such lease, and (b) the lien of any present or future mortgage or deed of
trust encumbering fee title to the Building and/or the leasehold estate under
any such lease. If any such mortgage or deed of trust be foreclosed, or if any
such lease be terminated, upon request of the mortgagee, beneficiary or lessor,
as the case may be, Tenant will attorn to the purchaser at the foreclosure sale
or to the lessor under such lease, as the case may be. The foregoing provisions
are declared to be self-operative and no further instruments shall be required
to effect such subordination and/or attornment; provided, however, that Tenant
agrees upon request by any such mortgagee, beneficiary, lessor or purchaser at
foreclosure, as the case may be, to execute such subordination and/or attornment
instruments as may be required by such person to confirm such subordination
and/or attornment on the form customarily used by such party or, at such party's
election, on the form attached hereto as Exhibit E. Notwithstanding the
foregoing to the contrary, any such mortgagee, beneficiary or lessor may elect
to give the rights and interests of Tenant under this Lease (excluding rights in
and to insurance proceeds and condemnation awards) priority over the lien of its
mortgage or deed of trust or the estate of its lease, as the case may be. In the
event of such election and upon the mortgagee, beneficiary or lessor notifying
Tenant of such election, the rights and interests of Tenant shall be deemed
superior to and to have priority over the lien of said mortgage or deed of trust
or the estate of such lease, as the case may be, whether this Lease is dated
prior to or subsequent to the date of such mortgage, deed of trust or lease. In
such event, Tenant shall execute and deliver whatever instruments may be
required by such mortgagee, beneficiary or lessor to confirm such superiority on
the form customarily used by such party. If Tenant fails to execute any
instrument required to be executed by Tenant under this Section 21 within 15
days after request, Tenant irrevocably appoints Landlord as its
attorney-in-fact, in Tenant's name, to execute such instrument. Notwithstanding
anything in this Section 21 to the contrary, Landlord agrees to use reasonable
efforts to procure a non-disturbance agreement from any present and future first
mortgagee or ground lessor of the Building on such mortgagee's or ground
lessor's customary form. Tenant understands that Landlord shall not be
responsible to expend any funds in order to procure such non-disturbance
agreement and Tenant's obligations under this Lease shall not be conditioned
upon Landlord's obtaining such non-disturbance agreement and Tenant's sole and
exclusive remedy for Landlord's failure to use such efforts shall be a claim for
actual damages directly caused as a result of such breach (excluding any
indirect, consequential or punitive damages), which damages shall not exceed the
amount of Rent payable under this Lease from and after the date of said
Landlord's default, and in no event shall Tenant be entitled to terminate this
Lease or to any abatement of Rent as a result of such breach.
22. QUIET ENJOYMENT. As long as no Default exists, Tenant shall peacefully
and quietly have and enjoy the Premises for the Term, free from interference by
Landlord, subject, however, to the provisions of this Lease. The loss or
reduction of Tenant's light, air or view will not be deemed a disturbance of
Tenant's occupancy of the Premises nor will it affect Tenant's obligations under
this Lease or create any liability of Landlord to Tenant.
21
23. BROKER. Tenant represents to Landlord that Tenant has dealt only with
the broker(s) set forth in Item 9 of the Schedule (the "Broker") in connection
with this Lease and that, insofar as Tenant knows, no other broker negotiated
this Lease or is entitled to any commission in connection herewith. Tenant
agrees to indemnify, defend and hold Landlord, its property manager and their
respective employees harmless from and against all claims, demands, actions,
liabilities, damages, costs and expenses (including, attorneys' fees) arising
from either (i) a claim for a fee or commission made by any broker, other than
the Broker, claiming to have acted by or on behalf of Tenant in connection with
this Lease, or (ii) a claim of, or right to, lien under the statutes of Illinois
relating to real estate broker liens with respect to any such broker retained by
Tenant. Landlord agrees to pay the Broker a commission in accordance with the
separate agreement between Landlord and the Brokers described in Item 10 of the
Schedule.
24. NOTICES. Except as otherwise expressly provided herein, all notices and
demands to be given by one party to the other party under this Lease shall be
given in writing, mailed or delivered to Landlord at the address set forth above
and to Tenant at the following addresses:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Vice President and General Counsel
Global Knowledge Network, Inc.
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Global Knowledge Network, Inc.
▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as either party may hereafter designate. Notices shall
be delivered by hand or by United States certified or registered mail, postage
prepaid, return receipt requested, or by a nationally recognized overnight air
courier service. Notices shall be considered to have been given upon the earlier
to occur of actual receipt, two business days after posting in the United States
mail or the first business day after delivery to the courier service.
25. MISCELLANEOUS.
A. Successors and Assigns. Subject to Section 14 of this Lease, each
----------------------
provision of this Lease shall extend to, bind and inure to the benefit of
Landlord and Tenant and their respective legal representatives, successors and
assigns; and all references herein to Landlord and Tenant shall be deemed to
include all such parties.
22
B. Entire Agreement. This Lease, and the riders and exhibits, if any,
----------------
attached hereto which are hereby made a part of this Lease, represent the
complete agreement between Landlord and Tenant; and Landlord has made no
representations or warranties except as expressly set forth in this Lease. No
modification or amendment of or waiver under this Lease shall be binding upon
Landlord or Tenant unless in writing signed by Landlord and Tenant.
C. Time of Essence. Time is of the essence of this Lease and each and all
---------------
of its provisions.
D. Execution and Delivery. Submission of this instrument for examination or
----------------------
signature by Tenant does not constitute a reservation of space or an option for
lease, and it is not effective until execution and delivery by both Landlord and
Tenant. Execution and delivery of this Lease by Tenant to Landlord shall
constitute an irrevocable offer by Tenant to lease the Premises on the terms and
conditions set forth herein, which offer may not be revoked for 15 days after
such delivery.
E. Severability. The invalidity or unenforceability of any provision of
------------
this Lease shall not affect or impair any other provisions.
F. Governing Law. This Lease shall be governed by and construed in
-------------
accordance with the laws of the State in which the Premises are located.
G. Attorneys' Fees. Tenant shall pay to Landlord all costs and expenses,
---------------
including reasonable attorneys fees, incurred by Landlord in connection with any
action between Landlord and Tenant arising out of this Lease or incurred by
Landlord as a result of any litigation to which Landlord becomes a party as a
result of this Lease.
▇. ▇▇▇▇▇ in Possession. In no event shall Landlord be liable to Tenant if
-------------------
Landlord is unable to deliver possession of the Premises to Tenant on the
Commencement Date for causes outside Landlord's reasonable control.
I. Joint and Several Liability. If Tenant is comprised of more than one
---------------------------
party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
J. Force Majeure. Landlord shall not be in default hereunder and Tenant
-------------
shall not be excused from performing any of its obligations hereunder if
Landlord is prevented from performing any of its obligations hereunder due to
any accident, breakage, strike, shortage of materials, acts of God or other
causes beyond Landlord's reasonable control.
K. Captions. The headings and titles in this Lease are for convenience only
--------
and shall have no effect upon the construction or interpretation of this Lease.
23
L. No Waiver. No receipt of money by Landlord from Tenant after
---------
termination of this Lease or after the service of any notice or after the
commencing of any suit or after final judgment for possession of the Premises
shall renew, reinstate, continue or extend the Term or affect any such notice or
suit. No waiver of any default of Tenant shall be implied from any omission by
Landlord to take any action on account of such default if such default persists
or be repeated, and no express waiver shall affect any default other than the
default specified in the express waiver and then only for the time and to the
extent therein stated.
M. No Recording. Tenant shall not record this Lease or a memorandum of
------------
this Lease in any official records.
N. Limitation of Liability. Any liability of Landlord under this Lease
-----------------------
shall be limited solely to its equity interest in the Building, and in no event
shall any personal liability be asserted against Landlord in connection with
this Lease nor shall any recourse be had to any other property or assets of
Landlord.
26. PARKING. Landlord agrees to furnish to Tenant, at no additional charge,
88 unreserved, unassigned parking spaces in the Building's parking lot (which is
four parking spaces per 1,000 rentable square feet of the Premises), for so long
as this Lease is in full force and effect and Tenant is not in Default under
this Lease. If the rentable area of the Premises is reduced below the amount
stated in Item 1B of the Schedule for any reason, then the number of Tenant's
parking spaces shall be reduced proportionately. Tenant shall not allow its
employees or invitees to use more parking spaces than the number furnished to
Tenant pursuant to this Section 26. If Tenant needs additional parking for its
employees and invitees at the Premises, Tenant must make arrangements for such
parking outside the Windy Point of Schaumburg project. Landlord may designate
parking spaces in the parking lots as "reserved" and Tenant shall not allow its
employees or invitees to use such reserved spaces. Tenant's use of all parking
spaces is subject to all applicable codes, ordinances, laws, regulations and
statutes and reasonable rules and regulations promulgated from time to time by
Landlord, as well as the restrictions set forth in the recorded Declaration of
Covenants, Conditions, Restrictions, Reciprocal Rights and Easements encumbering
the project.
27. LANDLORD'S TERMINATION OPTION.
A. Termination Option. Landlord shall have an option (the "Termination
------------------
Option") to terminate this Lease effective as of December 31, 2005 (the
"Termination Date"). The Termination Option is granted subject to the following
terms and conditions:
(i) Landlord gives Tenant written notice of Landlord's election to
exercise the Termination Option not later than April 30, 2005; and
(ii) Landlord pays to Tenant, within 30 days after Tenant vacates the
Premises (provided Tenant is not then in Default), a cash lease termination
fee (the "Fee") in an
24
amount equal to the product of (x) $10.00 multiplied by (y) the rentable
area of the Premises (in rentable square feet) as of the Termination Date.
B. Terms. If Landlord exercises the Termination Option (1) all Rent
-----
payable under this Lease shall be paid through and apportioned as of the
Termination Date, (2) neither party shall have any rights, estates, liabilities
or obligations under this Lease for the period accruing after the Termination
Date, except those which, by the provisions of this Lease, are intended to
survive the expiration or termination of the Term of this Lease, and (3)
Landlord and Tenant shall enter into a written agreement reflecting the
termination of this Lease upon the terms provided for herein, which agreement
shall be executed within 30 days after Landlord exercises the Termination
Option.
28. RENEWAL OPTION.
A. Renewal Option. Tenant shall have an option (the "Renewal Option") to
--------------
renew the Term with respect to all (but not less than all) of the Premises
demised under or pursuant to this Lease as of the expiration date of the initial
Term, for one additional term (the "Renewal Term") of five years, upon the
following terms and conditions:
(i) Tenant gives Landlord written notice of Tenant's election to
exercise the Renewal Option not later than nine months prior to the
expiration date of the initial Term;
(ii) Tenant submits current financial statements of Tenant to
Landlord concurrently with Tenant's notice exercising the Renewal Option
and such financial statements are reasonably satisfactory to Landlord; and
(iii) Tenant is not in Default under this Lease, either on the date
Tenant exercises the Renewal Option or on the expiration date of the
initial Term, and this Lease is in full force and effect on the date on
which Tenant exercises the Renewal Option and on the proposed commencement
date of the Renewal Term.
B. Terms. If Tenant timely and properly exercises the Renewal Option:
-----
(i) The Rent payable for the Renewal Term shall be equal to the
"market rate of rent" that Landlord reasonably anticipates will be in
effect at the commencement of the Renewal Term. Upon Tenant's written
request given to Landlord not later than 11 months prior to the expiration
date of the initial Term, Landlord shall give Tenant written notice setting
forth the market rate of rent not later than 10 months prior to the
expiration date of the initial Term (if Tenant fails to timely request such
market rate in advance, then Landlord shall give Tenant written notice
setting forth the market rate of rent prior to the commencement date of the
Renewal Term). "Market rate of rent" shall mean the greater of (i) the
then-escalated rate of Rent for the Premises as of the last year of the
initial Term (the "Existing Rental Rate") and (ii) the prevailing market
rental rate that a willing,
25
comparable property would accept, in an arm's length transaction, as of the
commencement of the Renewal Term, for comparable premises, taking into
account the annual rental rates per rentable square foot, the standard of
measurement by which the rentable square footage is measured, the type of
escalation clause, the extent of the tenant's liability under the lease,
abatement provisions reflecting free rent and/or no rent during the period
of construction or subsequent to the commencement date as to the space in
question, the brokerage commission which would be payable by the landlord
in similar transactions, the length of the lease term, improvement costs
borne by the landlord, allowances and other concessions to the tenant, and
the size and location of the premises being leased. The Base Rent payable
during the Renewal Term shall be subject to adjustment during the Renewal
Term as provided in Landlord's written notice setting forth the market rate
of rent (or, if the market rate of rent is the Existing Rental Rate, the
Base Rent shall increase by 3% per annum during each year of the Renewal
Term, commencing with the first day of the second year of the Renewal
Term). There shall be no abatement of Base Rent or Adjustment Rent for the
Premises during the Renewal Term, except as may be specifically provided in
Landlord's written notice setting forth the market rate of rent.
(ii) Tenant shall have no further options to renew the Term of this
Lease beyond the expiration date of the Renewal Term.
(iii) Landlord shall not be obligated to perform any leasehold
improvement work in the Premises or give Tenant any allowance for any such
work or any other purposes during or for the Renewal Term, except as to any
allowance which may be specifically provided in Landlord's written notice
setting forth the market rate of rent.
(iv) Except for the rate of Rent and except as otherwise provided
herein, all of the terms and provisions of this Lease shall remain the same
and in full force and effect during the Renewal Term.
C. Amendment. If Tenant exercises the Renewal Option, Landlord and Tenant
---------
shall execute and deliver an amendment to this Lease reflecting the lease of the
Premises by Landlord to Tenant for the Renewal Term on the terms provided above,
which amendment shall be executed and delivered within 30 days after Tenant
exercises the Renewal Option.
D. Termination. The Renewal Option shall automatically terminate and
-----------
become null and void upon the earlier to occur of (1) the expiration or
termination of this Lease, (2) the termination of Tenant's right to possession
of all or any part of the Premises, (3) the assignment of this Lease by Tenant,
in whole or in part (other than to an Affiliate in accordance with Section
14.A), (4) the sublease by Tenant of all or any part of the Premises (other than
to an Affiliate in accordance with Section 14.A), (5) the recapture by Landlord
of all or any part of the Premises
26
pursuant to Section 14C hereof, or (6) the failure of Tenant to timely or
properly exercise the Renewal Option.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
LANDLORD: TENANT:
-------- ------
WINDY POINT OF SCHAUMBURG GLOBAL KNOWLEDGE NETWORK,
L.L.C., a Delaware limited INC., a Delaware corporation
liability company
By: FRC WINDY POINT L.L.C., an
Illinois limited liability By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
company, its managing member Title: Vice President & CFO
------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Title:_________________________
27
(Landlord's Acknowledgment)
STATE OF ILLINOIS )
) SS.
COUNTY OF ▇▇▇▇ )
On this 10th day of January, 2000, before me appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, to
me personally known, who being by me duly sworn, did say that he/she is the
Managing Member of FRC WINDY POINT, L.L.C., an Illinois limited liability
company ("Manager") and managing member of WINDY POINT OF SCHAUMBURG L.L.C., a
Delaware limited liability company ("Owner"), the company that executed the
within and foregoing instrument and that said instrument was signed and sealed
in behalf of said Manager and Owner, and said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acknowledged
said instrument to be the free act and deed of said Manager and Owner.
[SEAL]
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
NOTARY PUBLIC
28
(Tenant Corporate Acknowledgment)
STATE OF MASS )
) SS.
COUNTY OF MIDDLESEX )
On this 22 day of December, 1999, before me appeared ▇▇▇▇▇ ▇. ▇▇▇▇, to me
personally known, who being by me duly sworn, did say that (he) is the VP & CFO
of GLOBAL KNOWLEDGE NETWORK, INC., a Delaware corporation, the corporation that
executed the within and foregoing instrument and that said instrument was
signed and sealed in behalf of said corporation by authority of its Board of
Directors, and that the seal affixed is the corporate seal of said corporation
and said ▇▇▇▇▇ ▇. ▇▇▇▇ acknowledged said instrument to be the free act and deed
of said corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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NOTARY PUBLIC
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public
My Commission Expires
June 18, 2005
EXHIBIT A
[FLOOR PLAN]