EXHIBIT NUMBER (10)(xiii)
TO 2000 FORM 10-K
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ BUILDING
LEASE WITH
THE NORTHERN TRUST COMPANY
TENANT
LEASING AGENT
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ MANAGEMENT CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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TABLE OF CONTENTS
1. LEASE OF PREMISES; DEFINITIONS......................................................................... 2
2. TERM................................................................................................... 6
3. RENT................................................................................................... 6
4. OPERATING EXPENSES..................................................................................... 9
5. HOLDING OVER........................................................................................... 18
6. USE.................................................................................................... 18
7. LANDLORD'S SERVICES AND OBLIGATIONS.................................................................... 19
8. TENANT'S OBLIGATIONS................................................................................... 22
9. RIGHTS RESERVED TO LANDLORD............................................................................ 28
10. TELEPHONE, ELECTRIC AND OTHER SERVICES................................................................. 31
11. LANDLORD'S TITLE....................................................................................... 31
12. QUIET ENJOYMENT........................................................................................ 31
13. LIMIT ON WAIVER OF CERTAIN CLAIMS...................................................................... 31
14. CONDITION OF PREMISES AND LANDLORD'S WORK.............................................................. 32
15. TERMINATION............................................................................................ 32
16. ASSIGNMENT AND SUBLETTING.............................................................................. 33
17. UNTENANTABILITY........................................................................................ 36
18. DEFAULTS; CONDITIONS LIMITATIONS; REMEDIES............................................................. 38
19. EMINENT DOMAIN......................................................................................... 44
20. SUBORDINATION AND SUPERIORITY OF THIS LEASE............................................................ 44
21. SPRINKLERS............................................................................................ 45
22. LANDLORD'S MAINTENANCE................................................................................ 45
23. NOTICE................................................................................................ 46
24. SUCCESSORS AND ASSIGNS................................................................................ 46
25. INSURANCE............................................................................................. 47
26. MISCELLANEOUS......................................................................................... 49
27. ESTOPPEL CERTIFICATES................................................................................. 52
28. MORTGAGEE PROTECTION.................................................................................. 52
29. LANDLORD'S COMPLIANCE WITH LAW........................................................................ 53
30. INDEMNIFICATION BY TENANT............................................................................. 54
31. INDEMNIFICATION BY LANDLORD........................................................................... 55
32. POSSESSION............................................................................................ 55
33. EXONERATION CLAUSE.................................................................................... 55
34. WAIVER OF JURY TRIAL.................................................................................. 56
35. LANDLORD DEFAULT AND PERFORMANCE BY TENANT............................................................ 56
36. MOST FAVORED TENANT................................................................................... 57
37. PEDESTRIAN BRIDGE..................................................................................... 58
38. MONUMENT SIGNAGE...................................................................................... 59
39. LOBBY SIGNAGE......................................................................................... 59
40. RIGHTS PERSONAL TO TENANT............................................................................. 59
41. FIRST EXTENSION OPTION................................................................................ 60
42. SECOND EXTENSION OPTION............................................................................... 61
43. MARKET RATE........................................................................................... 62
44. ELEVATOR TRANSFER..................................................................................... 63
45. CONTRACTION OPTION.................................................................................... 63
46. RIGHT OF FIRST OFFER UPON SALE OF THE BUILDING........................................................ 65
47. NAME OF THE BUILDING.................................................................................. 66
48. PUT SPACE............................................................................................. 67
49. ALLOWANCE FOR EXTENSION PREMISES...................................................................... 69
50. TERMINATION OF EXISTING LEASE......................................................................... 69
51. RIGHT OF FIRST OFFER TO LEASE......................................................................... 71
52. EXPANSION SPACE....................................................................................... 74
53. PARKING............................................................................................... 77
54. BACK UP GENERATOR..................................................................................... 78
55. KITCHEN FACILITIES.................................................................................... 78
EXHIBIT A Plan of Premises................................................................................ A-1
EXHIBIT B Rentable Area................................................................................... B-2
EXHIBIT C Rules and Regulations........................................................................... C-1
EXHIBIT D Cleaning Specifications......................................................................... D-1
EXHIBIT E Tenant Lease Estoppel Certificate............................................................... E-1
EXHIBIT F Legal Description............................................................................... F-1
EXHIBIT G ["Intentionally Deleted"]....................................................................... G-1
EXHIBIT H Base Rent....................................................................................... H-1
EXHIBIT I Items to be Removed............................................................................. I-1
EXHIBIT J Payment of Rent Adjustment...................................................................... J-1
EXHIBIT K Example of Calculation of Special Tenant Fee.................................................... K-1
EXHIBIT L Stacking Plan ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan.................................................... L-1
EXHIBIT M Level Pay....................................................................................... M-1
EXHIBIT N Short Form of Lease............................................................................. N-1
EXHIBIT O Form of First Offer Notice...................................................................... O-1
EXHIBIT P Landlord's Work................................................................................. P-1
EXHIBIT Q Parking Space Location.......................................................................... Q-1
LEASE
FOR
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ BUILDING
THIS LEASE (this "Lease") is made and entered into at Chicago, Illinois,
as of the 29th day of November, 2000, by and between LASALLE BANK NATIONAL
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ASSOCIATION, as successor trustee to American National Bank and Trust Company of
Chicago, not individually, but solely and only as Trustee under a certain Trust
Agreement (the "Trust Agreement") dated the 5/th/ day of April, 1990, and known
as Trust Number 110513-07 (the "Landlord"), and THE NORTHERN TRUST COMPANY, an
Illinois banking corporation (the "Tenant"), as follows:
RECITALS
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A. American National Bank and Trust Company of Chicago, as Trustee under
Trust No. 65287 ("Prior Landlord") and ▇▇▇▇▇▇ entered into that certain Lease
dated August 28, 1985 (the "Original Lease") as amended by that certain First
Amendment to Agreement of Lease dated August 15, 1986 (the "First Amendment"),
that certain Second Amendment to Agreement of Lease dated August 6, 1987 (the
"Second Amendment"), and that certain Third Amendment to Agreement of Lease
dated May 20, 1988 (the "Third Amendment").
B. The Original Lease, as amended by the First Amendment, Second Amendment
and Third Amendment, was assigned by Prior Landlord to Landlord by an assignment
dated April 6, 1990.
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ further amended the Original Lease by that certain
Fourth Amendment to Agreement of Lease dated May 1, 1990 ("Fourth Amendment"),
that certain Fifth Amendment to Agreement of Lease dated January 12, 1995, that
certain Sixth Amendment to Agreement of Lease dated November 30, 1995 ("Sixth
Amendment") that certain Seventh Amendment dated February 24, 1998, that certain
Eighth Amendment to Lease dated January 31, 2000, that certain Ninth Amendment
to Lease dated January 31, 2000 ("Ninth Amendment"), that certain Tenth
Amendment to Lease dated February 1, 2000, ("Tenth Amendment") that certain
Eleventh Amendment to Lease dated August 1, 2000, ("Eleventh Amendment") and
that certain Twelfth Amendment to Lease dated August 28, 2000, (Twelfth
Amendment). The Original Lease, as amended, is hereinafter referred to as the
"Existing Lease."
D. Pursuant to the Existing Lease, Tenant leased the Extension Premises
(as defined in Section 1B) and the 23/rd/ floor of the Building from Landlord,
totally approximately 284,296 rentable square feet in the Building, and the
36/th/ floor, containing 20,866 square feet of Rentable Area (collectively, the
"Existing Premises").
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▇. ▇▇▇▇▇▇▇▇ and Tenant have agreed to terminate the Existing Lease and
enter into a new lease of the Premises for a longer term, on the terms and
conditions of this Lease.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. LEASE OF PREMISES; DEFINITIONS.
A. The Landlord hereby leases to the Tenant and the Tenant hereby accepts
the lease of the premises consisting of that certain office space on Exhibit A
and incorporated herein by reference (the "Premises") located in the office
building (the "Building") located on the real estate commonly known as ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ BUILDING, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the
legal description of which is attached hereto as Exhibit F and incorporated
herein by reference (the "Real Estate"). The Building and the Real Estate
together with the vehicular drives, the above and below ground parking
facilities, and all other structures and improvements now or hereinafter located
upon the Real Estate are hereinafter sometimes collectively referred to as the
"Property". Rentable Area of the Premises is deemed to be as shown on Exhibit
A. A stacking plan of the Building showing Rentable Area per floor is attached
as Exhibit L.
B. The following terms shall have the following meanings wherever used in
this Lease:
(i) "Affiliate" shall have the meaning set forth in Section 16.
(ii) "Alterations" shall have the meaning set forth in Section 8J.
(iii) "Special Tenant Fee" shall have the meaning set forth in
Section 3D.
(iv) "Base Rent" shall have the meaning set forth in Section 3A.
(v) "Building" shall have the meaning set forth in Section 1A.
(vi) "Calculation Year" shall have the meaning set forth in
Section 4A(vi).
(vii) "Commencement Date" shall have the meaning set forth in
Section 2.
(viii) "Default Rate" shall have the meaning set forth in Section
3F.
(ix) "Deficiency" shall have the meaning set forth in Section 18F.
(x) "Employee" means an officer, director, employee, partner,
contractor, subcontractor, or representative.
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(xi) "Existing Lease" shall have the meaning set forth in Recital
C.
(xii) "Existing Premises" shall have the meaning set forth in
Recital D.
(xiii) "Expansion Space" shall have the meaning set forth in
Section 52.
(xiv) "Extension Premises" means the following space identified
on Exhibit A: floors 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15 (Suite
1500, Suite 1550), Suite 1600 on the 16th floor, 20.
(xv) "First Offer Space" shall have the meaning set forth in Section
51.
(xvi) "Fiscal Year" shall have the meaning set forth in Section 3D.
(xvii) "Fiscal Year Tax and Expense Amount" shall have the meaning set
forth in Section 3D.
(xviii) "Government Entity" means the United States, the State of
Illinois, the City of Chicago, and any and every other agency,
department, commission, rule-making body, bureau,
instrumentality, and/or political subdivision of government of
any kind whatsoever, now existing or hereafter created, now or
hereafter having jurisdiction over the Premises, the Building,
and/or the use, occupancy, possession, operation and/or
maintenance of the Premises and/or the Building.
(xix) "Indemnitee" means Landlord, Landlord's Affiliates, and Rental
Agent.
(xx) "Landlord" shall have the meaning set forth in the opening
paragraph and in Section 24.
(xxi) "Landlord's Affiliates" means:
(a) any Person controlling Landlord and any Person controlling
the same;
(b) any Person controlled by ▇▇▇▇▇▇▇▇ and any Person controlled
by the same;
(c) any Person under common control with Landlord;
(d) any Person which acquires substantially all of the assets
of Landlord or any corporation into which Landlord may be
merged or with which Landlord may be consolidated;
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(e) any Person who is a beneficiary under the Trust Agreement,
any Person controlling or controlled by, or under common
control with, such a beneficiary, and any Person
controlling or controlled by the same; and
(f) all Employees of Landlord and of every Person referred to
in (a), (b), (c), (d) and (e) above.
For purposes of this definition, "control" means the direct
or indirect ownership of more than twenty percent (20%) of the
common stock of a corporation or the direct or indirect beneficial
ownership of an unincorporated enterprise.
(xxii) "Landlord's Work" shall have the meaning set forth in Exhibit P.
(xxiii) "Law" or "Laws" means each and every law, rule, regulation,
order, ordinance, statute, requirement, code or executive mandate
of any kind whatsoever, present or future, issued by any
Government Entity applicable to or affecting the Premises and/or
the Property, and/or the use, occupancy, possession, operation,
and/or maintenance of the Premises and/or the Property.
(xxiv) "Lease" shall have the meaning set forth in the opening
paragraph.
(xxv) "Lease Termination Notice" shall have the meaning set forth in
Section 18B(i).
(xxvi) "Lease Year" shall have the meaning set forth in Section 4A(i).
(xxvii) "Legal Proceeding" means every action, litigation, summary
proceeding, arbitration, administrative proceeding, and other
legal or equitable proceeding of any kind whatsoever.
(xxviii) "Market Rental Rate" shall have the meaning set forth in Section
43.
(xxix) "Operating Expense Deposit" shall have the meaning set forth in
Section 4A(v).
(xxx) "Operating Expenses" shall have the meaning set forth in Section
4A(iii).
(xxxi) "Person" means an individual person, corporation, partnership,
trust, joint venture, proprietorship, estate or other
incorporated or unincorporated enterprise, entity, or
organization of any kind whatsoever.
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(xxxii) "Possession Termination Notice" shall have the meaning set forth
in Section 18B(ii).
(xxxiii) "Premises" shall have the meaning set forth in Section 1.
(xxxiv) "Prime Rate" shall have the meaning set forth in Section 3C.
(xxxv) "Put Space" shall have the meaning set forth in Section 48.
(xxxvi) "Property" shall have the meaning set forth in Section 1.
(xxxvii) "Real Estate" shall have the meaning set forth in Section 1.
(xxxviii) "Rent" shall have the meaning set forth in Section 3.
(xxxix) "Rent Adjustment" shall have the meaning set forth in Section 3.
(xl) "Rental Agent" shall have the meaning set forth in Section 3.
(xli) "Rentable Area" for each full office floor in the Building from
floors 4 through 38, both inclusive, is shown on Exhibit B, as
agreed to by Tenant and Landlord. If "Rentable Area" is stated in
the Lease for a partial floor then, that area shall be deemed
agreed to by Landlord and Tenant. "Rentable Area" for partial
floors which may be leased by Tenant in the Building and which
are not specifically set forth in this Lease shall be determined
pursuant to the Standard Method for Measuring Floor Area in
Office Buildings published by the Building Owners and Managers
Association International approved June 7, 1996, by American
National Standards Institute, Inc., or other more recent issuance
of such standards. Rentable Area does not equal useable area.
(xlii) "RSF" shall mean, as the context requires, one square foot or a
number of square feet of Rentable Area in any given space.
(xliii) "Superior Encumbrance" means the following:
(a) any and every mortgage or trust deed now a lien, or
hereafter becoming a lien, upon the Building, Real Estate or
Property, or any part thereof;
(b) any lease presently or hereafter in effect between Landlord,
as lessee or tenant, and any fee owner of the Building, Real
Estate or Property; and
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(c) any amendment, modification, or consolidation of the
foregoing, and all liens securing any further advances made
in connection with the foregoing.
(xliv) "Tax and Expense Cap" shall have the meaning set forth in Section
3D.
(xlv) "Tax and Expense Component" shall have the meaning set forth in
Section 3D.
(xlvi) "Taxes" shall have the meaning set forth in Section 4A(iv).
(xlvii) "Tenant" shall have the meaning set forth in the opening
paragraph.
(xlviii) "Tenant's Proportionate Share" shall have the meaning set forth
in Section 4A(ii).
(xlix) "Tenant's Work" means all Alterations, and any repairs,
maintenance, decorations or improvements which Tenant is
obligated to perform under this Lease.
(l) "Term" shall have the meaning set forth in Section 2.
(li) "Trust Agreement" shall have the meaning set forth in the opening
paragraph.
(lii) "23/rd/ Floor" shall mean that portion of the Premises located on
the 23rd Floor, when used to identify a portion of the Premises.
(liii) "include" or "including" shall be construed as meaning to
include, or including, "but not limited to" or "without
limitation".
2. TERM. The Term of this Lease commences on the 1st day of December, 2000 (the
"Commencement Date") and ends on the last day of December 31, 2020 (the "Term"),
unless sooner terminated or extended as hereinafter provided.
3. RENT. Tenant will pay to Landlord's rental agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
MANAGEMENT CORPORATION, (the "Rental Agents") at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other persons or at such other places
as the Landlord may direct from time to time by written notice to the Tenant, in
coin or currency or wire transfer of good funds which at the time of payment is
legal tender for the payment of public and private debts in the United States of
America, without setoff, recoupment or deduction whatsoever and, without demand
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or billing, except as hereinafter provided, the aggregate of the following, all
of which are hereby declared to be "Rent".
A. Base Rent (hereinafter defined), payable in advance in equal monthly
installments each promptly on the first day of each and every calendar month
during the Term of this Lease. "Base Rent" shall mean the sum of the amounts for
each twelve month period during the Term of this Lease calculated for each
portion of the Premises by multiplying the Rentable Area shown on Exhibit H for
each portion of the Premises by the Base Rent per RSF shown on Exhibit H for
such space for the applicable period shown opposite the Base Rent per RSF shown
on Exhibit H.
B. "Tenant's Proportionate Share of Operating Expenses" and "Operating
Expense Deposits" (hereinafter defined);
C. "Rent Adjustment" equal to the amounts provided for in Exhibit J,
payable as set forth in Exhibit ▇.
▇. An annual fee ("Special Tenant Fee") per square foot of Rentable Area
of the Premises for which it is applicable (as hereinafter set forth),
multiplied by the Rentable Area to which it applies, payable for each Fiscal
Year (hereinafter defined) set forth below, equal to the total of (i) Four
Percent (4%) of the Tax and Expense Component (hereinafter defined) for a Lease
Year immediately preceding the Fiscal Year for which it is payable, plus (ii)
the Special Tenant Fee per square foot of Rentable Area of the Premises for
which it applies for the previous Fiscal Year. The Special Tenant Fee shall be
payable in equal monthly installments in advance on the first day of each month
during each Fiscal Year as provided above. The Special Tenant Fee is not a
component of Rent after the initial Term of the Lease (i.e. it is not a
component of Rent during the First Extension Period and Second Extension Period)
nor is it a component of Rent for Expansion or First Offer Space.
(i) Definitions.
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(a) A "Fiscal Year" shall mean each twelve-month period
commencing on an April 1.
(b) "Tax and Expense Component" for any Lease Year means
the lesser of the (1) Tax and Expense Cap (hereinafter defined)
for such Lease Year and (2) the Tax and Expense Amount
(hereinafter defined) for such Lease Year.
(c) "Tax and Expense Amount" for a Lease Year means the
amount per square feet of Rentable Area obtained by dividing
(1) the sum of (i) Tenant's Proportionate Share of
Operating Expenses (excluding Taxes) for such Lease Year
plus
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(ii) Tenant's Proportionate Share of Taxes payable
during such prior Lease Year (regardless of the Lease Year
to which attributable), by
(2) Rentable Area of the Premises.
(d) The "Tax and Expense Cap" for any Lease Year shall be
the product of 1.03 multiplied by the previous Tax and Expense
Cap. The first Tax and Expense Cap is 1.03 multiplied by the Tax
and Expense Amount for Lease Year 2000. Once the Tax and Expense
Amount for Lease Year 2000 is determined, Landlord shall
calculate the Tax and Expense Cap for the balance of the Term and
Landlord and Tenant shall confirm it in a written and executed
supplement to the Lease within 60 days after delivering of
Landlord's statement under Section 4D.
(ii) When The Special Tenant Fee Commences. With respect to the
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23/rd/ floor space and Put Space, the Special Tenant Fee will be payable
for each Fiscal Year commencing with the Fiscal Year beginning April 1,
2002 . For the Extension Premises, the Special Tenant Fee will be payable
for each Fiscal Year commencing April 1, 2005, and shall be at the same
rate per square foot as the 23/rd/ floor and Put Space.
(iii) Example. An example of calculation of the Special Tenant Fee
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is shown on Exhibit K.
(iv) Proration. If space for which the Special Tenant Fee is payable
---------
is added or deleted from the Premises in any Fiscal Year, then the Special
Tenant Fee shall be prorated for such Fiscal Year based on the RSF to
which it applies for the period such RSF applies.
E. All other payments required to be made by the Tenant under this Lease.
In the event the Term of this Lease commences on a day other than the first
day of a calendar month or in the event that this Lease ends prior to the end of
a twelve month period or ends on a day other than the last day of a calendar
month, the Rent for such month or such period shall be prorated (except as
provided in Section 4E or Exhibit J). Tenant's obligation and covenant to pay
Rent is independent of every other covenant set forth in this Lease and shall
survive the expiration or termination of this Lease.
F. Interest at the Default Rate from the due date of each payment of Rent
due under this Lease until paid, if Tenant is ever in Default. The phrase
"Default Rate" means the lower of: (i) the highest lawful rate, or (ii) a rate
of interest equal to the sum of two percent (2%) plus the "Prime Rate". The
phrase "Prime Rate" means that rate of interest as defined in the most recently
published in the Wall Street Journal (or any successor publication) as the"Prime
-------------------
Rate",changing simultaneously and automatically with each published change in
the Prime Rate,such change to be effective as of and on the date published as
the effective date for the change in its said Prime Rate. In the event the Wall
----
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Street Journal (or any successor publication) shall discontinue to publish a
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Prime Rate, Landlord shall substitute therefor, in Landlord's judgment
reasonably exercised, the prime rate or base rate or similar rate of interest
announced or published by a major United States bank or major business
publication or financial publication.
4. OPERATING EXPENSES .
A. Definitions. For the purposes of this Lease, the following terms,
words or phrases shall have the meanings and definitions described in this
subsection 4 A:
(i) "Lease Year" means a consecutive twelve month period commencing
January 1 and ending December 31, both inclusive. In the event the
term of this Lease ends on a date other than December 31, then in
such event, "Lease Year" also means that period ending on the date
of expiration of the term of this Lease and commencing on the
immediately preceding January 1.
(ii) "Tenant's Proportionate Share" means 305,162/918,555, or thirty
three and 22/100 percent (33.22%). If at any time additional
space is added to the Premises, then Tenant's Proportionate Share
shall increase by the percentage obtained by dividing the number
of square feet of Rentable Area added, by 918,555. If at any time
space is deleted from the Premises, then Tenant's Proportionate
Share shall decrease by the percentage obtained by dividing the
number of square feet of Rentable Area deleted, by 918,555. If at
any time in the future the number of rentable square feet of
office space in the Building is reduced by reason of a change in
the Building's structure or by reason of the separation of
ownership of a portion of the Building by a device such as
vertical subdivision or submission of the Building to a
condominium form of ownership, with the result that Tenant's
Proportionate Share no longer reflects the ratio which the area
of the Premises holds to the total amount of office space in the
Building for which Landlord continues to pay Taxes and other
Operating Expenses, then Landlord shall be entitled to equitably
adjust Tenant's Proportionate Share to reflect such change in
circumstance; provided that Operating Expenses associated with
excluded rentable area are also equitably excluded.
(iii) "Operating Expenses" means Taxes (as hereinafter defined) and all
costs, expenses and disbursements of every kind, nature or
description, paid or incurred by or on behalf of the Landlord or
its beneficiaries relating to the ownership, management,
operation, maintenance and repair of the Property and the
sidewalks and areas adjacent thereto and of the personal
property, fixtures, machinery, equipment, systems and apparatus
located therein or used in connection therewith, including, but
not limited to: the costs of electricity, steam, water, fuel,
heating, lighting, air conditioning, window cleaning,
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janitorial services; insurance (including, but not limited to,
fire, extended coverage, liability, workmen's compensation,
elevator, boiler, plate glass or any other insurance carried in
good faith by the Landlord and applicable to the Property or the
said personal property); painting; uniforms; management fees,
(however if no managing agent is employed by Landlord, a sum in
lieu thereof which is not in excess of the then prevailing rates
for the management of first-class office buildings in Chicago,
Illinois), supplies, sundries, sale or use taxes on supplies or
services; costs of wages, salaries and bonuses of all persons at
and below the level of Building manager engaged in the operation,
maintenance and repair of the Property and so-called "fringe
benefits" (including, but not limited to, overtime pay, social
security taxes, unemployment insurance taxes, costs for providing
coverage for disability benefits, costs for any pensions,
hospitalization, welfare or retirement plans, vacation or
severance pay, or any other similar or like expense incurred
under the provisions of any collective bargaining agreement, or
any costs or expenses which the Landlord, or its beneficiaries,
pays or incurs to provide benefits for employees so engaged, or
previously engaged, in the operation, maintenance and repair of
the Property), the purchase price or rental cost, as applicable,
of all building and cleaning supplies, tools, materials,
machinery and equipment; depreciation of movable equipment used
in the operation, maintenance, and repair of the Building,
expenses imposed on Landlord pursuant to Laws, metal, elevator
cab, lobby, plaza, sidewalk, curb and other public area
maintenance and cleaning; interior and exterior landscaping and
decoration; cleaning of grounds, sidewalks, parking lots, and
other areas of the Property; a computer and other services for
bookkeeping, record keeping, accounting and rent collection;
association fees or dues; guards, watchmen and other security
personnel, services and/or systems; Building telephone system;
repairs, replacements and improvements which are necessary or
appropriate for the continued operation of the Building as a
first-class building (including those relating to the heating,
air conditioning, mechanical and electrical systems, and
elevators); blacktopping or other paving or repaving of parking
areas; and painting or striping of such areas; snow removal from
sidewalks and parking areas and from roofs and other areas of the
Property; water and sewer rents, rates and charges, and all costs
and charges (if any) for installing, repairing, or replacing
water meters; excises, levies, licenses and permit fees; service
charges, if any, with respect to police and fire protection,
security, or street maintenance and lighting; fees and charges
for construction, maintenance, occupancy or use of any vault,
passageway or space in, on, over or under the street or sidewalks
adjacent to the Building, or for the construction, maintenance or
use of any part of the Building within the limits of any street;
the charges of any independent contractor who, under a contract
with the Landlord, or its representatives, does any of the work
of operating, maintaining or repairing of the Property; legal and
accounting fees and
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expenses; or any other expense or charge, similar or dissimilar,
whether or not heretofore mentioned, which, in accordance with
generally accepted management and accounting principles, would be
considered as an expense of maintaining, operating or repairing the
Property or the said personal property.
Operating Expenses shall not include, however, the following:
(a) Costs of alterations of any tenant's premises;
(b) Interest, principal, points and fees on debts or amortization on
any mortgage or debt instrument encumbering the Property (except as permitted in
(c) below above), as well as or lease rentals paid or payable on any ground or
underlying lease;
(c) Costs of capital improvements, except that Operating Expenses shall
include (1) the cost of any capital improvements completed after the
Commencement Date of the Existing Lease (other than in connection with the
original construction of the Building) which are initially projected by
Landlord to reduce Operating Expenses, provided that the cost of capital
improvement in (1) does not exceed $150,000, or if such cost does exceed
$150,000, then (v) such cost must be evenly amortized by Landlord over the
useful life of the capital improvement, with interest on the unamortized amount
at the Prime Rate, (w) such amortized costs (including interest as aforesaid)
shall only be included in Operating Expenses under this Lease for that portion
of the useful life of the capital improvement which falls within the Term, (x)
that portion of the annual amortized costs (including interest as aforesaid) to
be included in Operating Expenses shall be the lesser of such annual costs or
the projected annual reduction in Operating Expenses for the portion of the
useful life of the capital improvement which falls within the Term, as
reasonably estimated by Landlord in detail by expense category prior to making
such capital improvement, (y) all elements of such projection shall be completed
in accordance with generally accepted accounting principles and practices in
effect at the time the capital improvement is proposed to be made, and (z) a
copy of such projection and the underlying calculations shall be furnished to
Tenant prior to Landlord's including the cost of any such capital improvement in
Operating Expenses; and (2) provided that conditions (1)(v) and (1)(w) above are
satisfied, the cost of any capital improvements which are necessary to keep the
Land and Building in compliance with all governmental rules and regulations
applicable from time to time thereto and enacted or adopted after the
Commencement Date of the Existing Lease.
(d) All expenses for which ▇▇▇▇▇▇▇▇ has received any reimbursement to
the extent of such reimbursement, other than indirect reimbursement by the
payment by any tenant of base rent or its share of Operating Expenses;
(e) Attorney's fees, costs and disbursements and other expenses
incurred in connection with tenant leases, including, without limitation,
negotiations with prospective tenants or disputes with any tenant but excluding
any expenses incurred in the performance of any of Landlord's obligations under
such tenant leases which are reimbursed by tenants payment of Operating
Expenses;
11
(f) Expenses for repairs or other work occasioned by a casualty,
except that Operating Expenses shall include the cost of repairs or other work
occasioned by a casualty to the extent that such cost is not covered by
Landlord's insurance described in Section 25 hereof because of the deductible
amount permitted in Section 25;
(g) Depreciation and amortization, except as provided herein and
except on materials, tools, supplies and vendor-type equipment purchased by
Landlord to enable Landlord to supply services Landlord might otherwise contract
for with a third party where such depreciation and amortization would otherwise
have been included in the charge for such third party's services, all as
determined in accordance with generally accepted accounting principles,
consistently applied, and when depreciation or amortization is permitted or
required, the item shall be amortized over its reasonably anticipated useful
life.
(h) Real estate brokers' commissions or compensation and other
expenses (including, without limitation, architectural, space planning or
engineering services) incurred in leasing or procuring tenants;
(i) The cost of any electric current furnished for lighting and
equipment (other than for the operation of fan rooms, telephone closets and
other elements of the Building's shared systems) located in the Premises or in
premises occupied by any other tenant in the Building;
(j) The cost of correcting defects in the construction of the Building
or in the Building equipment provided that this shall not exclude from Operating
Expenses the cost of normal repair, maintenance and replacement expected with
the construction materials and equipment installed in the Building in light of
their specifications;
(k) The cost of any repair made by Landlord pursuant to or as a result
of condemnation;
(l) The cost of installing, operating and maintaining any specialty
facility, such as an observatory, broadcasting facilities, luncheon club,
athletic or recreational club, cafeteria or dining facility not available to
Tenant;
(m) The cost of any repairs, alterations, additions, charges,
replacements and other items not specifically referred to in subparagraph (c) of
this Paragraph 5A and which, under generally accepted accounting principles, are
properly classified as capital expenditures;
(n) Any management or other fees and expenses paid to an agent which is
related to Landlord or its beneficiary to the extent such fees are in excess of
the customary amounts which would be paid in the absence of such relationship;
(o) Executive salaries and benefits above the grade of Building
manager;
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(p) Expenses incurred in connection with services or other benefits of
a type which are not provided to Tenant but which are provided to another tenant
or occupant of the Building;
(q) Any penalty charges incurred by Landlord due to the violation of
any law;
(r) Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord;
(s) Advertising and promotional expenditures;
(t) costs for sculptures, paintings and other objects of art located
within the Building, except only for the costs of maintaining such objects in
the public areas of the Building;
(u) Expenses incurred by Landlord, if any, in connection with the
operation, cleaning, repair, safety, management, security, maintenance or other
services of any kind provided to the mezzanine, first floor and basement or any
other portions of the Building which are leased for retail purposes which are
provided solely for the benefit of tenants occupying such portions or for the
parking garage; and
(v) Expenses which could have been avoided by taking advantage of
available discounts offered by suppliers to the Building of services and
supplies and others in consideration for timely payments, unless Landlord
promptly and in good faith disputes such expenses.
(w) Costs (including in connection therewith all attorneys' fees and
costs of settlement, judgments and payments in lieu thereof) arising from
claims, disputes or potential or actual claims, litigation or arbitration
pertaining to the Landlord or the Real Estate arising out of Landlord's tort,
unexcused breach of contract or violation of Laws.
(x) Costs associated with the operation of the business of the entity
which constitutes Landlord as the same are distinguished from the costs of
operation of the Building including accounting and legal matters of such entity,
costs of defending any lawsuits with any mortgagee (except as the actions of
Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or
hypothecating any of Landlord's interest in the Building, costs of any disputes
between Landlord and its employees (if any) not engaged in Building operation,
and disputes of Landlord with Building management.
(y) Any expenses incurred by Landlord for use of any portions of the
Building to accommodate events not benefitting Tenant including, but not limited
to shows, promotions, kiosks, displays, filming, photography, private events or
parties, ceremonies and advertising beyond the normal expenses otherwise
attributable to providing Building services, such as lighting and HVAC to such
public portions of the building in normal operations during standard Building
hours of operation.
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If the Property is not fully occupied during all or any portion of the
Calculation Year (as defined below), Landlord may elect to make an appropriate
adjustment of the Operating Expenses for such year, employing sound management
principles, to determine the amount of "Operating Expenses" that would have been
paid or incurred by the Landlord had the Property been fully occupied and the
amount so determined shall be deemed to have been the amount of Operating
Expenses for such Calculation Year. Further, if Landlord is not furnishing any
particular work or service (the cost of which if performed by Landlord would
constitute an Operating Expense) to a tenant who has undertaken to perform such
work or service in lieu of the performance thereof by Landlord, Operating
Expenses shall be determined to be increased by an amount equal to the
additional Operating Expense which reasonably would have been incurred during
such period by Landlord if it had at its own expense furnished such work or
service to such tenant; provided, however, that by reason of the foregoing
adjustment or increase Tenant shall in no event pay for any item of expense
which is adjusted or increased an amount in excess of the product of "Tenant's
Occupancy Share" (as hereinafter defined) multiplied by the total amount
actually paid or incurred by Landlord for such item. For purposes hereof, the
term "Tenant's Occupancy Share" shall mean a fraction, the numerator of which is
the Rentable Area of the Premises, and the denominator of which is the total
occupied area of the office space leased and provided with services in the
Building. If any Operating Expenses, though paid in one year, relates to more
than one Lease Year, at the option of the Landlord, such Operating Expense may
be allocated among such related Lease Years in such a manner as Landlord may
reasonably determine. If any Operating Expense benefitting the Property relates
to the Property and any other parcel of property, such Operating Expense shall
be allocated among all parcels of property to which it relates in such a manner
as Landlord may reasonably determine.
(iv) "Taxes" means all federal, state and local governmental taxes,
assessments and charges (including transit district taxes or
assessments) of any kind or nature, whether general, special,
ordinary or extraordinary, which Landlord or its beneficiaries
shall pay or become obligated to pay because of or in connection
with ownership, leasing, management, control or operation of the
Property or of the personal property, fixtures, machinery,
equipment, systems and apparatus located therein or used in
connection therewith, including without limitation, any and all
assessments made upon or with respect to any air rights or
development rights now or hereafter appurtenant to or affecting
the Property; all ad valorem taxes; any tax measured or based
upon rental or rental receipts; any personal property taxes
imposed upon the furniture, fixtures, machinery, equipment,
apparatus, systems and appurtenances used in connection with the
Property; fines, penalties, interest and similar charges, if any,
applicable to the foregoing only if caused by Tenant's delayed
payments of ▇▇▇▇▇▇'s Proportionate Share of Taxes or arising out
of permitted installment payments (interest only but not fines or
penalties); and all interest or costs attributable thereto. The
amount included in Taxes for any Lease Year shall be the amount
indicated by the tax bills due or payable for that Lease Year
(e.g., the taxes includable in Taxes for 2000 shall be the tax
14
designated as 2000 taxes, whether or not they are paid in 2000),
except that if the tax bills for such year are not available as
of the date of the statement prepared for Landlord in accordance
with subsection 4F, the amount of such taxes may be reasonably
estimated by the person preparing the statement. There shall be
deducted from Taxes, as determined for any year, the amount of
any refund of taxes received by Landlord during such year. There
shall be included in Taxes for any year the amount of all fees,
costs and expenses paid by Landlord during such year in seeking
or obtaining any refund or reduction of Taxes. Tenant shall be
entitled to Tenant's Proportionate Share of any refund of Taxes
attributable to any Lease Year during the Term for which Tenant
paid Taxes based on Tenant's Proportionate Share in effect for
such Lease Year. If any special assessment payable in
installments is levied against the Property, Taxes for any year
shall include only installments of such assessments and any
interest thereon, payable with respect to such year (all without
regard to any right to pay or payment of any such special
assessment in a lump sum or single payment). Taxes shall not
include any federal or state franchise, capital stock,
inheritance, income from all sources generally, or estate taxes,
except that if a change occurs in the method of taxation
resulting in the substitution of any such taxes for any Taxes as
herein above defined, such substituted taxes shall be included in
Taxes. Taxes include legal fees, court costs and expenses
charged or payable by or on behalf of the Landlord for the
contest of or protest of any Taxes. Landlord shall consult with
Tenant once the local assessing authorities of Cook County
(Assessor and Board of Review) have issued the final assessed
valuation for the Property and Landlord shall advise Tenant
whether Landlord will be filing a specific objection suit in Cook
County, Illinois, or appealing the assessed valuation with the
Property Tax Appeal Board. Landlord shall file such suit or
appeal if it believes it would reasonably be successful in
reducing the assessed valuation. If Landlord decides not to file
suit or appeal, Landlord shall inform Tenant of its reasons for
such decisions. Landlord may also file an objection to the tax
rate in the appropriate forum.
(v) "Operating Expense Deposits" means one-twelfth (1/12th) of the
amount of the Tenant's Proportionate Share of Operating Expenses
(subject to the provisions of Section 4G below) for the then
current Lease Year as Landlord shall reasonably estimate and
communicate in writing to Tenant.
(vi) "Calculation Year" means that Lease Year for which ▇▇▇▇▇▇'s
Proportionate Share of Operating Expenses described in this
Section 4 is payable, applicable or calculated.
15
B. Operating Expenses. Notwithstanding any provision of this Lease to the
contrary, it is mutually agreed that the Base Rent payable by the Tenant under
this Lease does not include Operating Expenses.
C. Operating Expense Deposits. ▇▇▇▇▇▇ agrees to pay to the Rental Agent
on the first day of each and every month during the term of this Lease the
Operating Expense Deposit (subject to the provisions of Section 4G below). The
Operating Expense Deposit shall be deposited against the Tenant's Proportionate
Share of the Operating Expenses due or to become due for the Lease Year during
which such deposits are required to be made. All Operating Expense Deposits may
be commingled and need not be segregated by the Landlord or the Landlord's
Rental Agent, and may be held and utilized by the Landlord without payment to
the Tenant of interest or any sums for the use of any of said deposits. During
the last Lease Year or during any partial Lease Year during which this Lease
terminates, Landlord may include in the Operating Expense Deposit its estimates
of Tenant's Proportionate Share of the Operating Expenses which may not be
finally determined until after the expiration or termination of this Lease.
▇. ▇▇▇▇▇▇▇▇'s Statement-Tenant's Payment Of Tenant's Proportionate Share
Of Operating Expenses. No later than one hundred twenty (120) days after the
expiration of each Lease Year of this Lease, the Landlord shall cause to be
furnished to the Tenant a statement setting forth the following:
(i) Operating Expenses for the Calculation Year, divided into the
following categories (to the extent applicable): Utilities,
Insurance, Repairs and Maintenance, Cleaning, Management Fee and
Administration. Landlord will also indicate the monthly Building
occupancy for the Calculation Year shown as a percentage of total
Rentable Area. Landlord shall be permitted to change the
categories above if Landlord changes its chart of accounts or
method of accounting.
(ii) The amount of Tenant's Proportionate Share of Operating Expenses
due Landlord for the Calculation Year, less credit for Operating
Expense Deposits both paid by the Tenant in and allocable to said
Calculation Year.
(iii) The Operating Expense Deposit due monthly, as aforesaid, during
the Lease Year next following the Calculation Year for which the
statement is given (subject to revision as aforesaid), including
the amount or revised amount due and payable for the months prior
to the rendition of the statement.
The Landlord and Tenant do hereby acknowledge that the real estate tax
bills for the Property, in relation to any Calculation Year, will not be
available until near the end of the calendar year following such
Calculation Year. Accordingly, the Landlord shall have the right to amend
such statement to take into account the actual real estate taxes payable in
relation to a Calculation Year for a period of twelve months following the
end of such Calculation
16
Year. The Landlord shall furnish any such amended statement to Tenant as
soon as reasonably feasible after Landlord receives the final installment
bill for such real estate taxes relating to such Calculation Year.
On the day for payment of Base Rent next following receipt of any such
statement, and provided at least thirty days has elapsed after ▇▇▇▇▇▇'s
receipt of such statement, the Tenant shall pay to the Rental Agent the
amount of Tenant's Proportionate Share of Operating Expenses due to the
Landlord for the Calculation Year, as reflected in said statement, and the
amount of Operating Expense Deposit due for the months between the
expiration of the Calculation Year described in the statement to and
including the month in which the statement is furnished; provided,
however, that such payment shall be made due and payable without prejudice
to any written exception made by Tenant with respect to ▇▇▇▇▇▇▇▇'s
statement in accordance with Section 4F. If such statement shall reflect
an amount due from the Landlord to the Tenant, then Landlord shall first
apply such amount against the next due and payable Operating Expense
Deposit and, if not exhausted, then to the next ensuing monthly Base Rent,
due and payable and if there is any remaining balance, and Tenant is not in
Default hereunder, said remaining balance shall be paid promptly to the
Tenant. No interest or penalties shall accrue on any amounts which
Landlord is obligated to pay or credit to Tenant by reason of this
subsection 4D.
E. Proration. If the Lease Term ends on any day other than the last day
of December, any portion of Tenant's Proportionate Share of Operating Expense
payment due Landlord shall be prorated, and the Tenant shall pay such amount
within ten (10) business days after ▇▇▇▇▇▇'s receipt of the statement referred
to above. Tenant's Proportionate Share of Operating Expenses shall not be
prorated for the Calculation Year in which the Commencement Date falls, it being
intended that such rent be paid as if the Commencement Date were January 1 of
such Calculation Year and amounts were payable and Operating Expense Deposits
made under this Lease and not the Existing Lease. In that regard, all payments
by ▇▇▇▇▇▇ on account of Tenant's Proportionate Share of Operating Expenses
(including payments under Section 4G under the Existing Lease) will be credited
as a payment by Tenant under this Lease. If ▇▇▇▇▇▇'s Proportionate Share
changes during a Calculation Year, then ▇▇▇▇▇▇'s Proportionate Share of
Operating Expenses shall be prorated for such year based on the RSF for which
Tenant's Proportionate Share applied and the time period within the Calculation
Year to which it was applicable.
F. Books and Records. Landlord shall maintain books and records in
accordance with sound accounting and management practices, reflecting the
Operating Expenses and Taxes. The Tenant or his representative shall have the
right to examine the Landlord's books and records relative to Operating Expenses
during normal business hours at any time within twenty (20) business days
following the furnishing by the Landlord to the Tenant of any statement
described in subsection 4F above. Unless the Tenant shall take written exception
to any item within forty (40) days after the furnishing of the said statement,
the said statement and all items and matters reflected therein shall be
considered as final and accepted by the Tenant. If Tenant makes such timely
written exception, a certification as to the proper amount of Tenant's
Proportionate Share of Operating Expenses (as
17
defined in Section 4A(iii) of this Lease) shall be made by ▇▇▇▇▇▇▇▇'s
independent certified public accountant which shall be final and conclusive.
▇▇▇▇▇▇ agrees to pay the cost of such certification unless it is determined
Landlord's original determination of Tenant's Proportionate Share of Operating
Expenses for the subject Calculation Year was in error by more than five percent
(5%) of actual Tenant's Proportionate Share of Operating Expenses, in which
case, such cost shall be paid by Landlord. If the dispute shall be determined in
Tenant's favor, Landlord, on demand, shall promptly pay Tenant the amount of
Tenant's overpayment of Tenant's Proportionate Share of Operating Expenses.
G. Payment of Taxes upon Receipt of Bill. Notwithstanding the provisions
-------------------------------------
of this Section 4 to the contrary, if Tenant is not in Default under this Lease,
the Operating Expense Deposit shall not include Tenant's Proportionate Share of
Taxes. In such event, Landlord shall deliver to Tenant a copy of each bill for
Taxes after it is received by Landlord, together with a calculation of Tenant's
Proportionate Share of such Taxes. Tenant shall deliver a check drawn on an
account of Tenant and payable to the appropriate taxing authority in an amount
equal to Tenant's Proportionate Share of such Taxes to Landlord within ten (10)
days of Tenant's receipt of a copy of such bill and the calculation of Tenant's
Proportionate Share as stated aforesaid, but Tenant shall deliver such check to
Landlord not later than thirty (30) days before the due date for payment of
such Taxes. Upon expiration of the Term or if Tenant vacates the Premises prior
to Lease expiration, Landlord may require Tenant to pay an estimate of, or give
Landlord reasonable security for payment of, ▇▇▇▇▇▇'s Proportionate Share of
Taxes attributable to periods of Tenant's prior occupancy for which bills for
Taxes have not yet been received from governmental authorities. ▇▇▇▇▇▇'s right
to pay ▇▇▇▇▇▇'s Proportionate Share of Taxes when bills for Taxes are received
from governmental authorities is personal to the original named Tenant and any
Affiliate (as defined in Section 16) to whom this Lease is assigned but shall
not extend to other sublessees or assignees. ▇▇▇▇▇▇▇▇'s statement described in
Section 4D shall not be required to include Taxes except in instances where a
readjustment is required because Tenant has underpaid or overpaid Taxes pursuant
to this Section 4G.
5. HOLDING OVER. Tenant shall pay to the Landlord for each day Tenant retains
possession of the Premises or any part thereof after termination hereof, by
lapse of time or otherwise, (A) 150% of the amount of the daily rate of Base
Rent, Rent Adjustment and Special Tenant Fee (if applicable), plus (B) Tenant's
Proportionate Share of Operating Expenses then required by the terms hereof for
the last monthly period prior to the date of such termination and also pay all
Direct damages sustained by Landlord by reason of such retention. If Tenant
retains possession of the Premises for more than 60 days after termination of
the Lease, then Landlord shall be entitled additionally to consequential
damages. Acceptance by Landlord of Rent after such termination shall not
constitute or be deemed a renewal of this Lease and in no event shall it
constitute a waiver of or prejudice Landlord's right of reentry or any other
right.
6. USE. Tenant shall occupy and use the Premises only for general office
purposes and other purposes incidental to or reasonably related to ▇▇▇▇▇▇'s
business as it is conducted from time to time, and for no other use or purpose.
If any governmental license or permit shall be required for the
18
proper and lawful conduct of ▇▇▇▇▇▇'s business in or occupancy of the Premises
and if failure to secure such license or permit would in any way affect
adversely Landlord or the Building, then the Tenant, at its expense, shall
procure and thereafter maintain such licenses or permits and submit the same to
Landlord for inspection. Tenant shall comply with the terms and conditions of
each such license and/or permit. Tenant may, if Tenant so elects, install and
operate vending machines for the exclusive use of Tenant's employees and
invitees to dispense hot and cold beverages, ice cream, candy, food and
cigarettes, provided that such machines shall be maintained in a neat and
sanitary condition and shall comply with all applicable laws and ordinances.
Tenant may, if it so elects, install, equip and operate one or more cafeterias
or dining rooms, subject to the provisions of Section 55. In addition, Tenant
may serve alcoholic beverages therein for the exclusive use of Tenant's
employees and invitees, subject to compliance with all applicable codes and
ordinances provided further, Tenant has delivered to Landlord certificates
evidencing insurance (which insurance shall in all respects and at all times
comply with the provisions of Section 25 of this Lease) against any liability of
Landlord arising from serving of alcoholic beverages in the Premises.
7. LANDLORD'S SERVICES AND OBLIGATIONS. So long as Tenant is not in Default
hereunder, Landlord shall furnish the following services:
A. Heating-Air Conditioning. Landlord shall furnish heat and air
conditioning to provide a temperature and humidity condition required, for
comfortable occupancy of the Premises under normal business operations, daily
from 8:00 a.m. to 6:00 p.m. (Saturday to 1:00 p.m.), Sundays and holidays
excepted. Tenant will be charged for all heating and cooling requested and
furnished before or after these hours at rates to be established and published
by Landlord. Building standard air conditioning system is based on an average
electrical load of four ▇▇▇▇▇/square foot and one person/100 square feet of
usable area. The HVAC system will be capable of providing inside space
conditions of 74+/-2 degrees F. dry bulb at 50+/-5% relative humidity when
outside conditions are 91 degrees F. dry bulb and 74 degrees wet bulb. The
heating installation will provide interior conditions of 72+/-2 degrees F.
inside when the outside temperature is -10 degrees F. HVAC zones are on a
variable volume system with stripline diffusers (subject to adjustment pursuant
to voluntary or mandatory laws or regulations of public authorities.) The HVAC
System is also designed to include the following:
The discharge air temperature shall be 55 degrees F. to the mixing box.
Fresh air is 20% per Chicago ventilation code.
Air quantity is 0.07 CFM to 1.2 CFM average.
Air supply shall be filtered with a minimum efficiency of 65% per ASHRE
standard 52-76.
The HVAC controls in the Premises are pneumatic and have the capacity
allowing Tenant control within the Premises to be maintained at the
operating dry bulb temperature of +/- 2 degrees F. Interior zones shall be
manually adjusted by the Building personnel.
Wherever heat generating machines or equipment are used in the Premises which
affect the temperature otherwise maintained by the air conditioning system,
Landlord reserves the right to require Tenant to provide, install, operate and
maintain supplementary air conditioning units in the
19
Premises and the cost of providing, installing, operating and maintaining the
same shall be paid by ▇▇▇▇▇▇.
B. Water. Landlord shall furnish cold water from City of Chicago mains
from regular Building outlets for drinking, lavatory, toilet and vending machine
purposes drawn through fixtures installed by Landlord, or by Tenant with
Landlord's prior written consent, and hot water for public lavatory and vending
machine purposes from the regular supply of the Building. Tenant shall pay
Rental Agent at rates fixed by Landlord for water furnished for any other
purpose as additional Rent hereunder upon being invoiced for the same. The
water pressure and the hot water temperature must be not less than customarily
provided in premises comparable to the Premises in first-class office buildings
in the Chicago central business district. At Landlord's election, Tenant shall
install and maintain, at Tenant's expense, a water meter to register consumption
of water for any other purposes. Tenant shall not waste or permit the waste of
water by Tenant or its employees.
C. Window Washing. Landlord shall furnish window washing of all exterior
windows, weather permitting, at intervals to be determined by the Landlord, but
not less than three times per calendar year. Tenant will not clean or cause to
be cleaned windows in the Premises from the outside in violation of applicable
Laws.
D. Janitor Service. Landlord shall furnish daily janitor services in the
Premises, Saturdays, Sundays and holidays excepted in accordance with the
standards set forth in Exhibit D. For this purpose, Tenant shall permit
Landlord's Employees or janitorial contractor access to the Premises between
5:00 p.m. and 8:00 a.m., and permit such persons to use necessary electricity,
light and water without charge. Tenant shall not provide janitor services
without the prior written consent of Landlord and then only subject to the
supervision of the Landlord and at Tenant's sole responsibility, cost and
expense, by contractors or employees at all times satisfactory to Landlord.
Landlord shall not be required to furnish janitorial services to deal with
conditions generated by receptions, parties, renovations, redecorating,
remodeling or conditions not within the scope of ordinary office use, and shall
be reimbursed by Tenant upon demand in the event such services are provided.
E. Elevator Service. Landlord shall furnish passenger elevator service
in common with Landlord and other tenants, daily. Daily freight elevator
service shall be available in common with Landlord and other tenants of the
Building and any use of the freight elevator service by contractors, agents or
employees of Tenant shall be at Tenant's sole cost, responsibility and expense
and at all times satisfactory to Landlord.
F. Window Coverings. Landlord shall furnish blinds for all exterior
windows of standard type and color for the Building, which ▇▇▇▇▇▇ agrees not to
remove or alter. Tenant may install, at its expense, drapes, window or door
coverings (and, if installed, shall maintain them in an attractive and safe
condition); provided, however, that in the sole judgment of Landlord they are in
harmony with the exterior and interior appearance of the Building, create no
safety or fire hazard and do not interfere with the HVAC system of the Building.
20
G. Monitor Access. Landlord shall have a program to monitor access to
the Building, which may consist of a combination of security equipment and entry
verification procedures, and which may include lobby personnel or a system of
registration for monitoring access to the Building, Initially the monitoring
program will include key cards (to be provided by Landlord) for passenger and
garage elevators, as well as points of entry (to be provided by Tenant) on
Tenant's floors. The program will provide for procedures for verification of day
and time of entry and exit by individuals during hours specified by Landlord.
Tenant's security personnel will cooperate with Landlord in coordinating
Tenant's security procedures with Building procedures.
H. Other Services. Landlord shall furnish Tenant, upon ▇▇▇▇▇▇'s request,
such other services (a) for which the Building is suited, which Landlord is able
to perform and which are customarily furnished by landlords of other first-class
office buildings in the central business district of the City of Chicago and (b)
for which Tenant and other tenants will pay Landlord as Operating Expenses or
for which Tenant will pay Landlord separately.
I. Interruption of Services. Landlord does not warrant that any service
or availability of any Building system will be free from interruptions (i)
caused by labor controversies, accidents, inability to obtain fuel, steam, water
or supplies, governmental regulations, or other causes beyond the reasonable
control of Landlord, or (ii) which Landlord may reasonably deem necessary in
connection with the maintenance, repair or improvement of the Building. No such
interruption of service shall be deemed an eviction or disturbance of Tenant's
use and possession of the Premises or any part thereof, or render Landlord
liable to Tenant for damages, by abatement of rent or otherwise, (except as
hereinafter provided) or relieve Tenant from performance of Tenant's obligations
under this Lease. Tenant hereby waives and releases all claims against Landlord
for damages for interruption or stoppage of service.
(a) If the Landlord ceases to furnish any of the services referred to
in this Section 7 as a result of a condition which affects only the
Building (and does not affect office buildings in general in the central
business district of the City of Chicago), but not a condition described in
Section 17 and if (i) such cessation is within Landlord's reasonable
control, (ii) such cessation does not arise as a result of a negligent act
or omission of Tenant or any other third party, or if such cessation does
arise as a result of an act or omission of any third party, such cessation
is able to be cured by reasonable and prompt action on the part of the
Landlord but has not been so cured, (iii) as a result of such cessation,
the Premises, or any floor within the Premises, is rendered untenantable
(meaning the inability to use any or all of the floor(s) within the
Premises in the normal course of its business) and Tenant in fact so ceases
to use such floor(s), and (iv) such cessation continues for a period of
three (3) business days after notice from Tenant of such cessation of
services, then, in addition to such other remedies as Tenant may have
either at law or in equity, the Rent payable hereunder shall be equitably
abated based upon the percentage of the space in the Premises so rendered
untenantable and not being used by Tenant. The foregoing abatement shall
become effective as of the first business day following the day the
affected floor(s) become(s) untenantable and Tenant ceases to use such
floor(s). If there is a cessation of services described in Section 7A, 7B
or 7E for
21
any reason outside of Landlord's reasonable control (other than as
described in Section 17, which shall control), whether or not affecting
other office buildings in the Chicago central business district, Tenant may
▇▇▇▇▇ rent on the circumstances set forth in this paragraph if such
cessation continues for more than five (5) business days after notice from
Tenant of such cessation of services.
(b) If any period of untenantability due to failure to receive
services identified in Sections 7A, 7B and 7E involving more than fifty
percent (50%) of the area of the Premises continues for longer than one
hundred eighty (180) consecutive days, then unless subject to the
provisions of Section 17 (which shall control), Tenant may elect to
terminate this Lease by written notice to Landlord within the thirty (30)
day period following such one hundred eighty (180) consecutive day period;
provided, however, if such stoppage of services requires work to be
performed, acts to be done, or conditions to be removed which, by their
nature, cannot reasonably be performed, done or removed, as the case may
be, within such one hundred eighty (180) consecutive day period, then if
Landlord shall have commenced curing or correcting the same within such
period and shall have diligently prosecuted such correction or cure, such
one hundred eighty (180) consecutive period shall be extended by such
additional time period not to exceed an additional one hundred twenty (120)
days, for a total of three hundred (300) days in the aggregate.
8. TENANT'S OBLIGATIONS.
A. Repairs. Except for ordinary wear and tear and as otherwise provided
in this Lease, Tenant shall, at all times during the Term hereof, at its sole
expense, keep all Tenant's movable and removable fixtures located in or
appurtenant to the Premises in good order, repair and condition, and Tenant
shall promptly arrange with Landlord to have Landlord (or Landlord's agent) make
repairs of all other damages to the Premises and the replacement or repair of
all damaged or broken glass (including signs thereon), fixtures and
appurtenances (including hardware and heating, cooling, ventilating, electrical,
plumbing and other mechanical facilities in the Premises), with materials equal
in quality and class to the original materials damaged or broken, within any
reasonable period of time specified by Landlord. Landlord may, but shall not be
required to do so, enter the Premises at all reasonable times to make any
repairs, alterations, improvements or additions, including, but not limited to,
ducts and all other facilities for heating and air conditioning service, as
Landlord shall desire or deem necessary for the safety, preservation or
improvement of the Building, or as Landlord may be required to do by any
Government Entity or Law. The cost of all repairs made by Landlord to the
Property which are made necessary as a result of misuse or neglect by Tenant or
Tenant's employees, invitees or agents shall be paid as additional Rent by
Tenant to Landlord within 30 days after Tenant is billed for same. The cost of
all other repairs and replacements (except those caused by ▇▇▇▇▇▇'s misuse or
negligence and those relating to Tenant's movable fixtures) shall be paid for by
the Landlord and deemed an item of Operating Expenses. Tenant shall notify
Landlord, in writing, of any damage to the Premises promptly after learning of
the same.
B. [INTENTIONALLY DELETED].
22
C. Laws and Regulations. Tenant shall, at Tenant's sole expense, comply
and cause its employees, agents, clients, customers, invitees, visitors and
guests to comply with the rules and regulations set forth in Exhibit C attached
hereto and with all other reasonable rules and regulations Landlord may adopt
from time to time for the protection and welfare of the Building, the Property
and its tenants and occupants, and with all Laws (including, but not limited to,
the Americans With Disabilities Act), and with all rules, orders, regulations or
requirements of any fire insurance underwriters for insurance for the Building,
and with the directions of any public officers authorized by law affecting the
Premises and the use and occupancy thereof. Landlord shall not be liable to
Tenant for any violation by any other tenant or such tenant's Employees of (i)
such tenant's lease, or (ii) the rules and regulations of the Building; but
Landlord shall attempt in good faith to apply the rules and regulations without
discrimination against any tenant of the Building. The terms, covenants,
conditions, and provisions of this Lease shall govern in the event of any
conflict or inconsistency between the Lease and the rules and regulations.
D. Advertising. Tenant shall not advertise the business, profession or
activities of Tenant in any manner which violates the letter or spirit of any
code of ethics adopted by any recognized association or organization pertaining
thereto or use the name of the Building for any purpose other than that of the
business address of tenant, or use any picture or likeness of the Building or
"181 WEST MADISON BUILDING" or any other name by which the Building may from
time to time be known, on any letterhead, envelope, circular, notice,
advertisement, container or wrapping material, without the prior written consent
of Landlord.
E. Articles Sold. Tenant shall not exhibit, sell or offer for sale, rent
or exchange in the Premises or on the Property any article, thing or service
except those ordinarily embraced within the use of the Premises specified in
Section 6 without the prior written consent of Landlord.
F. Hazardous Materials.
(i) During the term of the Lease, Tenant shall fully comply with any
Environmental Laws.
(a) "Environmental Law" shall mean any Federal, state or
local law, statute, ordinance, code, rule, regulation, license,
authorization, decision, order, injunction, which pertains to
health, safety, any Hazardous Material, or the environment
(including but not limited to ground or air or water or noise
pollution or contamination, and underground or above-ground
tanks) and shall include, without limitation: Occupational Safety
and Health Act, 29 U.S.C. Sections 651, et seq.; the Toxic
-------
Substances Control Act, 15 U.S.C. Sections 2601, et seq.; the
-------
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq.; the Clean Air Act, 42 U.S.C. Sections 7901, et seq.; the
------- -------
Clean Water Act, 33 U.S.C. Sections 1251, et seq.; the
-------
Comprehensive Environmental Response, Compensation and Liability
Act of 1980 and the 1986 Superfund Amendments and Reauthorization
Act, 42
23
U.S.C. Sections 9601, et seq.; the National Environmental Policy
-------
Act, 42 U.S.C. Sections 4231, et seq.; the Refuse Act, 33 U.S.C.
-------
Sections 407, et seq.; the Safe Drinking Water Act, 42 U.S.C.
-------
Sections 300(f), et seq.; the Emergency Planning and Community
-------
Right-to-Know Act, 42 U.S.C. Sections 11001, et seq.; the
-------
Illinois Environmental Protection Act, 415 ILCS 5/1 et seq.; the
-------
Gasoline Storage Act, 430 ILCS 15/0.01 et seq.; the Municipal
-------
Code of the City of Chicago; and any other local, state or
federal environmental statutes, and all rules, regulations,
orders and decrees now or hereafter promulgated under any of the
foregoing, as any of the foregoing now exist or may be changed or
amended or come into effect in the future, as well as applicable
Department of Transportation regulations.
(b) "Hazardous Material" shall mean any substance, whether
solid, liquid or gaseous; which is listed, defined or regulated
as a "hazardous substance," "hazardous waste" or "solid waste,"
or otherwise classified as hazardous or toxic, in or pursuant to
any Law; or which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation,
explosive or radioactive material, or motor fuel or other
petroleum hydrocarbons; or which causes or poses a threat to
cause contamination or a nuisance on the Premises or any adjacent
property or is a hazard to the environment or to the health or
safety of persons. Tenant shall notify Landlord immediately if
Tenant receives any notice of non-compliance with any
Environmental Laws or rules and regulations promulgated
thereunder, including, but not limited to, those enumerated
above.
Tenant shall not cause or permit its business in the Premises to be
used to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials, except in
compliance with all applicable Laws. Tenant shall notify Landlord
immediately if ▇▇▇▇▇▇ learns of any non-compliance or of any facts (such as
the existence of any release or threat of release of Hazardous Materials
at, on, from or beneath the surface of the Premises) which could rise to a
claim of non-compliance with such Laws. Notwithstanding the foregoing,
Tenant may keep reasonable amounts of cleaning and office equipment fluids
in the Premises properly stored in appropriate containers.
(ii) During the term of the Lease, Tenant shall obtain, shall fully
comply with, and shall maintain in full force and effect all
governmental licenses, permits, registrations and approvals
(federal, state, local, county and foreign) necessary to conduct
its business in the Premises including, but not limited to, those
required by the statutes enumerated above in Paragraph (i).
During the term of the Lease, Tenant shall keep a copy of all
such permits at the Premises and shall make the same available at
all reasonable times for Landlord's inspection.
24
Tenant warrants and represents that if during the term of the Lease
any violations are recorded or any notices are received with respect to
any of such licenses, permits, registrations and approvals or if a
proceeding is commenced or threatened to revoke or limit any of them,
Tenant shall notify Landlord immediately.
(iii) In addition to all other indemnities under the Lease, Tenant
hereby assumes for itself and for its successors and assigns any
and all environmental, health and safety liabilities or
obligations not otherwise caused by Landlord relating to the
Premises and or Tenant's use of Premises, including, but not
limited to, any liabilities or obligations in breach of the
obligations imposed by Paragraphs (i) and (ii) hereof on Tenant
and its successors and assigns. Tenant, for itself and its
successors and assigns, shall indemnify, defend and hold
Landlord, its successors, assigns, owners and affiliates harmless
from and against any claims, demands, liabilities and damages
(including, but not limited to, reasonable attorneys' fees and
court costs) arising out of or in connection with any
environmental contamination or pollution of the Premises, and the
existence on, or removal from, the Premises of any Hazardous
Material not otherwise caused by Landlord. The obligations of
this paragraph shall survive the expiration or termination of
this Lease.
G. Various Prohibited Uses. Tenant shall not install or operate any
refrigerating, heating or air conditioning apparatus or carry on any
manufacturing, production or mechanical business, operation or activity without
the prior written consent of Landlord; use the Premises for housing, lodging or
sleeping purposes; permit preparation or warming of food in the Premises
(warming of coffee and individual lunches of employees and business invitees of
Tenant excepted and except as otherwise expressly provided in Section 6 of this
Lease), or permit food to be brought into the Premises for consumption therein
by persons other than Tenant, its employees and business invitees, without the
prior written consent of Landlord. Landlord may in its sole discretion refuse
such permission or impose any conditions in granting it, and revoke it at will.
Tenant shall not occupy or use the Premises or permit the Premises to be
occupied or used for any purpose, act or thing which is in violation of any Law,
ordinance or governmental regulation, or which may be dangerous to persons or
property. Tenant, at its sole expense, shall comply with all rules, regulations
and requirements of the Illinois Inspection and Rating Bureau. Tenant shall not
do or permit anything to be done upon the Premises, or bring or keep anything
thereon which is in violation of rules, regulations or requirements of the
Chicago Fire Department, Illinois Inspection and Rating Bureau, Fire Insurance
Rating Organization, or any other similar authority having jurisdiction over the
Building. Tenant shall not use the Premises for any immoral purposes. Tenant
shall not at any time do or permit the manufacture, sale, purchase, use or gift
of any spirituous, fermented, intoxicating or alcoholic liquors. Nothing in this
subsection shall be read as limiting the restrictions on use imposed elsewhere
in this Lease.
H. Nuisances. Tenant shall not bring or permit to be in the Building any
bicycle or other vehicle, or dog (except in the company of a blind person) or
other animal; make or permit any noise,
25
vibration or odor to emanate from the Premises; do anything therein tending to
create, or maintain, a public or private nuisance; disturb, solicit or canvass
any occupant of the Building, or do any act tending, in Landlord's judgment, to
injure the reputation, appearance or character of the Building as a first-class
building, or impair any building services or repairs, or the use of other areas
of the Building by Landlord or other tenants or occupants of the Building.
I. Overload Any Floor. Tenant shall not overload any floors.
J. Alterations. Tenant shall not make installations, alterations or
additions ("Alterations") in or to the Premises without submitting plans and
specifications ("Tenant's Plans") to Landlord and securing the prior written
consent of Landlord in each instance. Landlord will not unreasonably withhold
condition or delay consent to any Alteration EXCEPT, HOWEVER, that Landlord may
withhold its consent in its sole and absolute discretion to any Alterations,
which will (a) alter or affect any portion of the Building's mechanical systems,
service systems, structural components, facade, roof, or foundation; (b) detract
from the use or character of the Building; (c) require amendment of any
certificate of occupancy for the Premises or the Building; (d) interfere with
the use or occupancy of Landlord or any other tenant in the Building; or (e)
require the consent of any insurer under any required insurance or any other
policy of insurance covering the Building. ▇▇▇▇▇▇▇▇ agrees to review and either
approve or disapprove (and noting with such disapproval the specific items not
approved) Tenant's Plans within ten (10) business days of Landlord's receipt of
a complete set of Tenant's Plans. In the event Tenant's Plans are disapproved,
Tenant shall revise and resubmit ▇▇▇▇▇▇'s Plans expeditiously and Landlord shall
review the same and notify the Tenant of its approval or disapproval within five
(5) business days thereafter in the same manner as required for the initial
submittal. ▇▇▇▇▇▇▇▇'s approval shall not be unreasonably withheld conditioned
or delayed. ▇▇▇▇▇▇▇▇'s authorized representative ("Landlord's Representative")
for the purpose of ▇▇▇▇▇▇'s deliveries or to communications to Landlord shall be
the Building General Manager, at the management office located in the Building.
Tenant shall not commence any work in the Premises until Tenant's Plans have
been approved. Such Alterations shall be done at the sole cost and expense of
Tenant by contractors employed by Tenant, subject to Landlord's approval as to
the qualifications of such contractor (which shall not be unreasonably withheld
conditioned or delayed) and subject to all conditions Landlord may impose
including, conditions which will assure Landlord that all work will be performed
lien free, that adequate insurance coverage is provided, and that all
contractors (and all subcontractors) employed by Tenant shall agree to employ
only such labor as will not result in jurisdictional disputes or strikes or
cause disharmony with other workers employed at the Building. All Alterations
shall be constructed in a good and workmanlike manner and only new and good
grades of material shall be used, and shall comply with all insurance
requirements, and with all Laws. Tenant shall promptly pay Tenant's contractors
for such Alterations. Tenant shall permit ▇▇▇▇▇▇▇▇'s Representative (and an
architect or engineer designated by Landlord) to observe all construction
operations within the Premises performed by ▇▇▇▇▇▇'s contractor, provided that
no supervision fee shall be charged by Landlord other than reimbursement of
Landlord's direct out-of-pocket costs. Such observation by persons on behalf of
Landlord shall be solely and only for the benefit of Landlord. Tenant shall pay
to the Landlord the cost of any materials purchased from Landlord at Landlord's
actual invoice cost for said items or the cost of any labor of employees of
Landlord
26
performing work or providing service to Tenant, based on Landlord's customary
charges. Tenant shall not be charged for hoisting. No silence or statement by
any person acting on behalf of Landlord shall be deemed or construed as an
assumption by said persons or Landlord of any responsibility for or in relation
to the construction of the Premises or any guarantee that the work completed
within the Premises complies with Laws, complies with ▇▇▇▇▇▇'s Plans, or is
suitable or acceptable to the Tenant for Tenant's intended business purposes.
The cost of all work necessary to build out all of the Premises (including, but
not limited to, all labor, material, permits and working drawings and design
costs) shall, be the responsibility of Tenant, except for any required
contribution of Landlord expressly provided for in this Lease. Tenant shall
furnish to Landlord prior to commencement of Alterations, all building permits
(or other documentation required by the City of Chicago to commence work) and
other permits and certificates required by any Government Entity in connection
with the Alterations and all certificates of required insurance and bonds, and
within thirty (30) days of completion of any Alteration, any building or other
permits not previously furnished, "as built" plans and specifications, if any,
contractor's affidavits and full and final waivers of lien covering all labor
and material expended and used. If Tenant has applied for a building permit but
one has not been issued by the time work must commence solely due to delays in
the City of Chicago Building Department review process, Tenant shall provide
self-certification to Landlord as permitted under applicable City of Chicago
codes and ordinances and furnish Landlord a copy of the permit when received.
Tenant shall hold Indemnitee harmless from all claims, costs, damages, liens and
expenses which may arise out of or be connected in any way with said
installations, alterations or additions.
If the estimated cost of any Alteration exceeds one hundred thousand
dollars ($100,000.00), before commencing any work with respect to such
Alteration, Tenant shall deliver to Landlord the following, at Tenant's sole
expense, each in form satisfactory to Landlord and each issued by an insurer
previously approved in writing by Landlord: insurance policies for each
contractor for coverage and amounts reasonably satisfactory to Landlord which
policies shall name the parties set forth in Section 25C as additional insureds.
Tenant shall cause all work to be undertaken under the supervision of a licensed
architect or licensed professional engineer reasonably satisfactory to Landlord.
K. Consent Not Required For Decoration, etc. The specific consent of
Landlord shall not be required for Non-Structural Work (hereinafter defined) and
Tenant may perform such work, so long as Tenant informs Landlord in reasonable
detail of the nature of the work, complies with ▇▇▇▇▇▇▇▇'s scheduling
requirements and otherwise complies with the provisions of this Section 8K.
"Non-Structural Work" means: painting, wall covering and carpeting not involving
hazardous or toxic materials; reconfigure moveable furniture, relocation of work
stations, install and rework telecommunications systems and install all new
computer, data processing or security equipment for Tenant and other work not
affecting the Building's structure or its mechanical, plumbing,
telecommunications, security and life safety, electrical or other building
systems (except for low wattage electrical work for which ▇▇▇▇▇▇▇▇'s consent is
not required and which does not require a building permit). Non-Structural
Work, however, does not include any work which involves floor coring, access to
common electrical or telecommunications closets, penetrates the floor slab or
leaves the floor of the Premises on which the work is being performed or
requires entry into another tenant's
27
premises. Where plans and specifications are available for Non-Structural Work,
Tenant shall furnish Tenant's Plans to Landlord for its approval as provided
above.
Landlord shall not be responsible for any labor or materials furnished to
Tenant. No lien for any labor, materials, or other services, or things
furnished to Tenant shall attach to or affect Landlord's estate or interest in
the Premises, and/or the Property. ▇▇▇▇▇▇ agrees to discharge, at Tenant's
expense (whether by payment, bonding, or otherwise) every lien filed against the
Premises and/or the Property for work claimed to have been done for or materials
claimed to have been furnished to Tenant, within thirty (30) days after written
notice from Landlord.
L. Records. Tenant shall keep records of the cost of all Alterations
costing more than one hundred thousand dollars ($100,000) in each instance for
at least one year after substantial completion of the Alterations and shall give
copies of such records to Landlord upon request if Landlord requires the same in
connection with any Legal Proceeding or other reasonable purposes.
9. RIGHTS RESERVED TO LANDLORD. Landlord shall have the following rights
exercisable without notice and without liability to Tenant for damage or injury
to property, person or business (all claims for damage being hereby released),
and without effecting an eviction or disturbance or Tenant's use or possession
or giving rise to any claim for setoffs, or abatement of rent:
A. To change the name or street address of the Building, subject to the
provisions of Section 47.
B. To install and maintain signs on the exterior and interior of the
Building or anywhere on the Property, subject to the provisions of Section 47.
C. To designate all sources furnishing sign painting and lettering,
towels, or toilet supplies used or consumed on the Premises.
D. To have, and use, when appropriate and subject to the provisions of
Section 9F, passkeys or key cards to the Premises; provided that Landlord and
Tenant shall use reasonable efforts to protect any such magnetic key card system
or the individual cards against theft or misappropriation, and use reasonable
efforts to maintain the system; and provided further that such system will
permit the Landlord upon request of Tenant to cancel the effectiveness of the
card held by any partner or employee or invitee of Tenant upon such person's
departure from Tenant or for any other reason. Landlord shall have the right to
retain keys and magnetic cards for entry into the Premises and all doors within
the Premises except for doors to such spaces as Tenant may designate as security
areas. Tenant agrees to purchase only from Landlord additional duplicate keys
or magnetic cards as required, to change no locks or magnetic card readers, and
not to affix locks or magnetic card readers on doors without the prior written
consent of the Landlord not to be unreasonably withheld conditioned or delayed,
provided that Landlord shall respond to Tenant's requests for such consent with
reasonable promptness. Upon the expiration of the Term or Tenant's
28
right to possession, Tenant shall return all keys or magnetic cards to Landlord
and shall disclose to Landlord the combination of any safes, cabinets or vaults
left in the Premises;
E. To decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy during the last six months of the Term hereof, if during or
prior to such time Tenant vacates the Premises, or any time after Tenant
abandons the Premises.
F. To enter the Premises at reasonable hours to make inspections, or to
exhibit the Premises to prospective, purchasers, lenders or others, or for other
reasonable purposes. To enter the Premises at reasonable hours to exhibit the
Premises to prospective tenants during the last eighteen months of the Term or
after ▇▇▇▇▇▇ has abandoned the Premises, or at any time with respect to the 36th
Floor. With respect to Landlord's entry, reasonable advance notice (which may
be oral and may be given to Tenant's representatives) shall be required and
Landlord shall be accompanied by a representative of Tenant (unless otherwise
authorized) except in an emergency, except for a governmental inspection or to
provide janitorial or other routine services. Landlord shall use reasonable
efforts to minimize interference caused by its entry.
G. To enter the Premises at any time in case of emergency (and by force,
if necessary in such event) in connection therewith. If Tenant is not
personally present to open and permit entry into the Premises, Landlord or its
employees may forcibly enter the Premises without liability to Tenant or waiver
or modification of Tenant's obligations under this Lease.
H. To have access to all mail chutes according to the rules of the United
States Post Office.
I. To require all persons entering or leaving the Building during such
hours as Landlord may from time to time reasonably determine or during times of
emergency to identify themselves to a watchman by registration or otherwise and
to establish their right to leave or enter, and to exclude or expel any peddler,
solicitor or beggar at any time from the Premises or the Property. Landlord
shall not be liable in damages for any error with respect to admission to or
eviction or exclusion from the Building of any Person.
J. To approve (in a reasonable manner) the weight, size and location of
safes, computers, all other heavy articles in and about the Premises and the
Building and to require all such items and other office furniture and equipment
to be moved in and out of the Property and Premises only at such time and in
such manner as Landlord shall direct and in all events at Tenant's sole risk and
responsibility.
K. At any time or times and without abatement of Rent or liability to
Tenant subject to conditions hereinafter set forth and the provisions of Section
9F, to decorate the Building or any part thereof, excluding the Premises, and to
make, at its own expense, repairs, alterations, additions and improvements,
structural or otherwise, in or to the Premises, the Property or part thereof,
and to perform any acts related to the safety, protection or preservation
thereof, and during such operations
29
to take into and through and store on the Premises or any part of the Property
all material and equipment required, and to erect scaffolding and to close or
temporarily suspend operation of entrances, doors, corridors, elevators or other
facilities, provided that Landlord shall (i) cause as little inconvenience or
annoyance to Tenant as is reasonably necessary in the circumstances, (ii) shall
not do any act which reduces the size of the Premises (except for duration of
the work), (iii) shall maintain reasonable accessibility to the Premises, and
(iv) shall use reasonable diligence in performing work. If any work to be
performed by Landlord (except in an emergency) requires modifications to the
Premises (other than temporary modifications needed to perform work), then
Landlord shall provide Tenant with copies of plans and specifications, if any,
which have been prepared for such work. If such work affects the appearance or
utility of the Premises in a material way, ▇▇▇▇▇▇'s shall have the right to
approve that aspect of the plans and specifications, which approval shall not be
unreasonably withheld. If Tenant desires to retain a consultant to assist in its
review of plans and specifications, it shall advise Landlord and Landlord agrees
to pay Tenant the reasonable fees of such consultant for such review. Tenant
shall permit Landlord to erect, use and maintain pipes, ducts and conduits in
and through the Premises, provided the same are installed adjacent to or
concealed behind walls and ceilings of the Premises. To the extent reasonably
practicable, Landlord shall install such pipes, ducts and conduits by methods
and in locations which will not materially interfere with or impair Tenant's
layout or use of the Premises. Landlord may do any such work during ordinary
business hours and Tenant shall pay Landlord for overtime and for any other
expenses incurred if such work is done during other hours at Tenant's request.
L. To do or permit to be done any work in or about the Premises or the
Property or any adjacent or nearby building, land, street or alley. Without
limiting the foregoing, if excavation, foundation, other substructure work, or
other construction work shall be made or authorized upon land adjacent to the
Property, Tenant shall afford to the Person causing (or authorized to cause)
such excavation, license to enter the Premises to do such work as necessary to
preserve the walls of the Building from injury or damage, and to support the
same by proper foundations, without any claim for damages or indemnity against
Landlord, or diminution or abatement of Rent.
M. To grant to anyone the exclusive right to conduct any business or
render any service on the Property, provided such exclusive right shall not
operate to exclude Tenant from the use expressly permitted by Section 6 of this
Lease; and provided further that Tenant need not obtain its business or service
from such person or limit Tenants right to obtain such business or service from
another person.
N. To close the Building at 8:00 p.m. or at such other reasonable time as
Landlord may determine, subject, however, to Tenant's right to admittance under
such regulations as shall be prescribed from time to time by ▇▇▇▇▇▇▇▇, it being
understood that ▇▇▇▇▇▇'s employees will require access to the Premises seven
days a week, twenty-four hours a day.
O. Except as provided in Section 6, to prohibit the placing of vending or
dispensing machines of any kind in or about the Premises without the prior
written permission of the Landlord.
30
P. All other rights reserved by the Landlord pursuant to the provisions of
this Lease.
10. TELEPHONE, ELECTRIC AND OTHER SERVICES.
A. The electrical system of the Building was designed for Tenant's usage
(not including service described in Section 7A) on each floor to have a 400 amp
fused switch at 120/208 volts. Certain floors may have been modified to increase
that capacity.
B. Tenant shall make arrangements directly with the telephone and electric
companies servicing the Building for such telephone and electric service in the
Premises as may be desired by Tenant. Tenant shall pay the entire cost of all
telephone charges, electricity consumed within the Premises, maintenance of
light fixtures and replacement of lamps, bulbs, tubes, ballasts and starters.
Tenant may, at its election, on ten (10) days' prior notice, provide for its own
lighting maintenance service.
C. If Tenant desires telegraphic, telephonic, burglar alarm, computer
installations or signal service (which service shall be at Tenant's sole
expense), Landlord shall, upon request, direct where and how all connections and
wiring for such service shall be introduced and run. In the absence of such
directions, Tenant shall make no borings, cutting or install any wires or cables
in or about the Premises.
▇. ▇▇▇▇▇▇ covenants and agrees that Landlord shall in no event be liable
or responsible to Tenant for any loss, damage or expense which Tenant may
sustain or incur if either the quality or character of electrical service is
changed or is no longer suitable for Tenant's requirements. Tenant covenants
and agrees that at all times its use of electric current shall never exceed the
capacity of existing feeders and equipment in or otherwise servicing the
Premises when reviewed in conjunction with electrical usage of other tenants in
the Building or the Premises or wiring or installation; and also that it shall
make no alterations or additions to the electric equipment and/or appliances
without the prior written consent of Landlord in each instance.
11. LANDLORD'S TITLE. ▇▇▇▇▇▇▇▇'s title is and always shall be paramount to the
title of Tenant. Nothing herein contained shall empower Tenant to do any act
which can, shall or may encumber the title of Landlord.
12. QUIET ENJOYMENT. Subject to the Tenant's keeping and performing the terms,
covenants, conditions and provisions of this Lease, on its part to be performed,
Tenant shall and may peaceably and quietly have, hold and enjoy the Premises for
the Term of this Lease.
13. LIMIT ON WAIVER OF CERTAIN CLAIMS. Subject to the provisions of Section
25A, to the extent permitted by law, no agreement of Tenant in this Lease shall
be deemed to exempt
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Landlord from liability or damages for injury to persons or damages to property
caused by or resulting from the negligence of Landlord, its agents, servants or
employees, in the operation or maintenance of the Premises or Building.
14. CONDITION OF PREMISES AND LANDLORD'S WORK. To the extent available, the
Landlord will supply Tenant, at Tenant's request, drawings representing
additional premises to be leased by Tenant other than Existing Premises. Common
area exits, stairwells and men and woman restrooms in such additional premises
will have locking devises and door closures. Tenant, at its own cost, may
install combination locks on all restroom entrance doors where Tenant is a full-
floor tenant provided that there is a key override keyed to the Building current
key system. Landlord shall perform Landlord's Work as to such additional
premises to the extent not existing in the additional premises at the time
possession is delivered to Tenant. ▇▇▇▇▇▇'s taking possession of any additional
premises other than the Existing Premises shall be conclusive evidence that the
premises were then in good order, repair and satisfactory condition, except for
latent defects with respect to any of Landlords' Work. Except as may be set
forth in any written agreement between the parties, no promise has been made to
alter, remodel, improve, repair, decorate or clean any premises, and no
representation respecting the condition of the Premises or the Property has been
made to Tenant, except as made herein.
15. TERMINATION. At the termination of this Lease or ▇▇▇▇▇▇'s right to
possession hereunder, by lapse of time or otherwise:
A. Surrender of Keys. Tenant shall surrender all keys of the Premises to
Landlord and make known to Landlord the explanation of all combination locks
remaining on the Premises.
B. Return of Premises. Tenant shall return to Landlord the Premises and
all equipment and fixtures of Landlord broom-swept clean and in as good a
condition and state of repair as when Tenant originally took possession subject,
however, to (a) the provisions of Section 17 and Paragraphs C and D of this
Section 15; and (b) ordinary wear and tear, failing which Landlord may restore
the Premises, equipment and fixtures to such condition and state of repair and
Tenant shall, upon demand, pay to Landlord the reasonable cost thereof.
C. Removal of Additions. All installations, additions, hardware, non-
trade fixtures and improvements temporary or permanent, except movable furniture
and equipment belonging to Tenant, in or upon the Premises, whether placed there
by Tenant or Landlord, shall be Landlord's property and shall remain upon the
Premises, all without compensation, allowance or credit to Tenant; provided,
however, that if Landlord so directs Tenant by notice as hereinafter provided,
Tenant shall promptly remove the items falling within categories described on
Exhibit I hereto, the pedestrian bridge described in Section 37, and any
personal property of Tenant placed in or upon the Premises by Tenant and
designated in the notice and repair any damage to the Premises or Building
caused by such removal. If Tenant fails to do so, Landlord may remove the same
and Tenant shall, upon demand, pay to Landlord the reasonable cost of such
removal and of any necessary restoration of the Premises. In no event shall
Landlord be responsible for the value, preservation or safekeeping of any
32
property so removed. Approximately one year prior to the expiration of the
Lease, Landlord and Tenant shall conduct a walk- through of the Premises and
Landlord shall identify to Tenant which items Tenant is required to remove.
Landlord shall confirm the requirement of removal of such items in a notice to
Tenant. With respect to any deletion of space from the Premises or any
termination due to casualty, eminent domain or Default of Tenant, Landlord shall
furnish such notice no later than thirty days after the contraction or
termination.
D. Floor Covering. Tenant may remove any floor covering entirely paid for
and laid by Tenant, provided Tenant (a) removes all fastenings, paper, glue,
bases and other vestiges thereof and restores the floor surface to its previous
condition, or (b) pays to Landlord, upon demand, the reasonable cost of
restoring the floor surface condition, or Tenant may leave in place any floor
covering.
E. Property Presumed Abandoned. All fixtures, installations, and personal
property belonging to Tenant not removed from the Premises upon termination of
this Lease and not required by Landlord to have been removed as provided in
Paragraph C of this Section 15, shall, at Landlord's election (which may be
exercised as to any or all of such items), be conclusively presumed to have been
abandoned by Tenant and title thereto shall pass to Landlord under this Lease as
by a Bill of Sale.
F. Survival. The obligations of the Tenant contained in this Section 15
shall survive any termination of this Lease.
16. ASSIGNMENT AND SUBLETTING.
A. Except as otherwise expressly provided herein, Tenant shall not,
without the prior written consent of Landlord in each instance or as otherwise
provided in this Section 16: (i) assign, transfer, mortgage, pledge, hypothecate
or encumber, or subject to or permit to exist upon or be subjected to any lien
or charge, this Lease or any interest under it; (ii) allow to exist or occur any
transfer of or lien upon this Lease or the Tenant's interest herein by operation
of law; (iii) sublet the Premises or any part thereof; or (iv) permit the use or
occupancy of the Premises or any part thereof by anyone other than the Tenant
and ▇▇▇▇▇▇'s employees. In no event shall this Lease be assigned or assignable
by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
For the purposes of this Section 16, if The Northern Trust Company is no
longer Tenant, then the transfer of the direct or indirect ownership or control
of more than fifty percent (50%) of any Person, however accomplished, whether
directly or indirectly, in a single transaction or in a series of related or
unrelated transactions, and not including transfers of stock of a company
publicly traded on a national securities exchange or quoted on the NASDAQ stock
market or other quotation system available for public trading of securities,
shall be deemed an assignment of this Lease.
33
Consent by Landlord to any assignment or sublease shall not be deemed to
constitute consent to any further assignment or subleases by Tenant or any
assignees or subtenants.
B. Tenant covenants that, notwithstanding any assignment or transfer,
whether or not in violation of the provisions of this Lease, and notwithstanding
the acceptance of Rent by Landlord from an assignee or transferee or any other
Person, Tenant shall remain fully and primarily and with the assignee or
transferee jointly and severally liable for the payment of all Rent due and to
become due under this Lease and for the performance and observance of all of the
covenants, agreements, terms, provisions and conditions of this Lease on the
part of the Tenant to be performed or observed, except as otherwise provided
herein. After any assignment, subletting, or other transfer permitted under
Subsection 16A or 16B, Tenant's liabilities and obligations under this Lease
shall not be discharged, released or impaired in any respect by an agreement or
stipulation made by Landlord (or the holder of any Superior Encumbrance)
extending the Term or modifying any obligations contained in this Lease, or by
any waiver or failure of Landlord to enforce any of Tenant's obligations under
this Lease.
C. Except as set forth in Section 16D, Landlord may withhold its approval
of Tenant's proposed sublease or assignment for the reason that the proposed
subtenant or assignee is an existing tenant in the Building if, at the time of
the proposed sublease or assignment, Landlord has existing available premises in
the Building that can accommodate the existing tenant's space requirements;
provided, however, Landlord shall have 120 days from the date that the existing
tenant first contacted Landlord or the date that Tenant (or its agent) first
notified Landlord of its proposed sublease or assignment to the existing tenant
(whichever is earlier) within which to negotiate the basic terms of a lease at
the Building with the existing tenant. If Landlord and the existing tenant
cannot agree on the basic terms for any such lease within such 120 day period,
then Landlord may no longer withhold its approval of the sublease or assignment
for the reason that the proposed sublessee or assignee is an existing tenant.
▇. ▇▇▇▇▇▇ may at any time and from time to time assign or transfer this
Lease or any interest under it, and may sublet the Premises or any part thereof
to (i) a Person controlling, controlled by or under common control with The
Northern Trust Company or to any successor to The Northern Trust Company by
merger, consolidation or acquisition (any such entity or successor being
sometimes hereafter referred to as an "Affiliate" of Tenant), without Landlord's
consent; or (ii) any financially responsible Person approved by Landlord, (which
approval shall not be unreasonably withheld, denied conditioned or delayed)
whose stated use of the Premises will not result in a breach of an exclusive use
provision for space in the Building theretofore granted by ▇▇▇▇▇▇▇▇ (subject to
▇▇▇▇▇▇▇▇'s written right to recapture as hereafter set forth). Not less than
thirty (30) days prior to the proposed commencement of such assignment or
sublease to a Person other than an Affiliate of Tenant, Tenant shall give
Landlord written notice of the proposed assignment or sublease which notice
shall contain the name of the proposed assignee or sublessee and proposed
principal terms thereof and shall be accompanied by the last available financial
statement of such proposed assignee or sublessee. Within ten (10) days of
▇▇▇▇▇▇▇▇'s receipt of such written notice and financial statement Landlord by
notice to Tenant shall approve or disapprove of the
34
proposed assignee or sublessee, or if such proposed transfer is (i) a sublease
to other than an Affiliate (A) for more than 50% of the Rentable Area of the
Premises (when taken together with all other space subleased at that date or
proposed to be subleased at such time) as of that date, and (B) for
substantially all of the remainder of the Term, or (ii) an assignment to other
than an Affiliate, Landlord may terminate this Lease as to such proposed
subleased space in the case of a proposed sublease, or all of the Premises in
the case of a proposed assignment. If Landlord exercises such right to
terminate, Tenant shall have ten (10) days from receipt of Landlord's notice to
terminate to rescind its notice of sublease, assignment or transfer, by
notifying Landlord in writing of its rescission, in which case Landlord shall
not proceed with any such termination. If Landlord does not terminate as
aforesaid, Landlord may withhold its consent to such proposed assignee or
sublessee only for reasonable reasons related to the financial responsibility of
the proposed Person but such disapproval may not be given because (a) vacant
space exists in the Building, (b) such proposed assignee or sublessee is a
tenant in the Building or has discussed tenancy in the Building with the
Landlord, or (c) the price or rental rate of the proposed assignment or
sublease. Failure of Landlord to respond within such ten (10) day period shall
constitute Landlord's approval of such proposed assignee or sublessee. Upon the
assignment of all of ▇▇▇▇▇▇'s interest in this Lease to an assignee wherein the
Rent to be paid by the assignee equals, or exceeds the Rent payable under this
Lease, which assignment is approved by Landlord as aforesaid (including an
assignment to an Affiliate, if such an Affiliate is approved by Landlord,
although Tenant is not required to obtain approval of an assignment to an
Affiliate, but if Tenant elects not to, it shall not be relieved of its
obligations under this Lease]), and delivery of a written assumption of this
Lease and the obligations hereunder by such assignee, Tenant shall be relieved
of all obligations under this Lease accruing after such release, except the
obligation to pay to the Landlord excess rent as provided in the next paragraph.
If ▇▇▇▇▇▇'s notice shall entitle Landlord to terminate this Lease as to the
entire Premises and Landlord shall elect to terminate this Lease as to the
entire Premises, the Term of this Lease shall expire and end on the date stated
in ▇▇▇▇▇▇'s notice as fully and completely as if that date had been herein
definitely fixed for the expiration of the Term. If, however, this Lease be
terminated pursuant to the foregoing with respect to less than the entire
Premises, the Rent herein reserved shall be adjusted on the basis of the number
of square feet retained by Tenant in proportion to the number of square feet
contained in the Premises, as described in this Lease, Tenant shall pay for the
cost of physically separating the portion of space so deleted from the Premises,
and this Lease, as so amended, shall continue thereafter in full force and
effect. In such event, at ▇▇▇▇▇▇▇▇'s request, ▇▇▇▇▇▇ shall promptly execute and
deliver to Landlord an appropriate modification of this Lease in a form
satisfactory to Landlord and Tenant.
E. With respect to any sublease, Tenant shall bear all costs of providing
appropriate means of ingress and egress from the sublet space (or of separating
the space to be subleased from the remainder of the Premises).
F. If Tenant shall assign or transfer its interest in this Lease or sublet
the Premises pursuant to this Section 16, then Tenant shall pay to Landlord as
additional rent within 10 days after receipt under any such assignment or in the
case of a sublease on the first day of each month during the term of any such
sublease, one-half (1/2) of the excess of all rent over the sum of (x) all Rent
then
35
payable to Landlord under this Lease for said month (or if only a portion of the
Premises is being sublet, then portion of the Rent then payable to Landlord
under this Lease for said month which is allocable on a square foot basis to the
space sublet) plus y) an amount equal to the quotient of "Tenant's Costs" (as
hereinafter defined) incurred by Tenant in connection with said sublease divided
by the number of months in the term of such sublease. As used in the preceding
sentence, "Tenant's Costs" for such assignment or sublease shall include the
unamortized amount of improvements made at Tenant's expense, alterations to the
Premises in connection with such assignment or sublease made at Tenant's
expense, and leasing commissions, rent concessions, advertising cost, and legal
expenses in connection with such assignment or sublease.
▇. ▇▇▇▇▇▇ agrees that if it requests ▇▇▇▇▇▇▇▇'s consent to an assignment
or a subletting, that it shall reimburse Landlord for its reasonable costs and
expenses in considering whether to grant its consent (including, but not limited
to, reasonable attorneys' fees).
17. UNTENANTABILITY.
A. In the event (a) a substantial part of the Premises is damaged by fire
or other casualty, or (b) a substantial part of the Building (or any
area required to provide access or services to the Premises or
Building) is damaged by fire or other casualty, Landlord shall, within
60 days after the date of said fire or casualty, give Tenant an
estimate of the length of time that will be required to complete the
rebuilding and restoration of the Premises or the Building (including
an estimated construction schedule) so that affected areas of the
Premises or Building are no longer untenantable. For purposes of this
Section 17, a "substantial part of the Premises" shall be deemed
damaged if at least 100,000 square feet of Rentable Area of the
Premises is thereby rendered untenantable, and a "substantial part of
the Building (or any area required to provide access or services to
the Premises of Building)" shall be deemed damaged if at least 300,000
square feet of Rentable Area in the Building (whether within or
outside the Premises) is rendered untenantable. "Untenantable" shall
mean that the normal conduct of a tenant's business in its premises
in the Building, is materially impaired. If such estimated time for
rebuilding and restoration exceeds twelve (12) months from the date of
such fire or other casualty, or if the unexpired portion of the Term
as of the date of such fire or other casualty is eighteen months (18)
or less, then either Landlord or Tenant (but only if more than 100,000
square feet of Rentable Area of the Premises is rendered untenantable)
may terminate this Lease upon written notice to the other given any
time within 30 days after Landlord gives Tenant written notice
containing the estimate. If neither party so elects, this Lease shall
not terminate (except as otherwise provided in Section 17F) and
Landlord shall, at Landlord's expense, use all reasonable efforts to
repair and restore the Premises or Building within the estimated time
for rebuilding and restoration given by Landlord to Tenant in its
notice, subject to (i) delays due to insurance adjustment, or (ii)
matters beyond Landlord's reasonable control, and Rent shall ▇▇▇▇▇ on
a per diem basis during the period of reconstruction and repair until
the Premises are again tenantable.
36
B. In the event that less than a substantial part of the Premises is
damaged by fire or other casualty or less than a substantial part of
the Building (or any area required to provide access or services to
the Premises or Building) is damaged by fire or other casualty, then
Landlord shall, except during the last eighteen (18) months of the
term hereof, proceed with all due diligence to repair and restore the
Premises, subject, however, to (i) reasonable delays for insurance
adjustments, and (ii) delays caused by forces beyond Landlord's
reasonable control; but Landlord shall not be liable to incur
overtime, double time, or other premium charges in order to expedite
the work of repair or restoration. In such event, Rent shall ▇▇▇▇▇ in
proportion to the untenantable area of the Premises during the period
while repairs are in progress. If the Premises or Building are damaged
by fire or other casualty as aforesaid during the eighteen (18) months
year of the Term hereof (unless Tenant has exercised an available
option to extend), either Landlord or Tenant shall have the right to
terminate this Lease as of the date of fire or other casualty by
written notice to the other given any time written thirty (30) days
after the date of such fire or other casualty.
C. In the event Landlord is obligated or elects pursuant hereto to
restore and rebuild the Premises, or any portion thereof, or the
Building as a result of a fire or other cause, Landlord shall only be
obligated to restore or rebuild those portions of the improvements in
the Premises, or the affected portion thereof constituting the core
and shell of the Building and not improvements or betterments to the
Premises, including Alterations.
D. Landlord shall have no liability for any loss, cost, expense, damage,
or compensation whatsoever (including any claim for inconvenience,
loss of business or annoyance) by reason of any restoration of the
Premises or the Building under this Section.
E. In the event Landlord is obligated or elects pursuant hereto to
restore and rebuild, then at Tenant's expense, Tenant shall repair and
restore improvements and betterments to the Premises Alterations which
are not required to be repaired or restored by Landlord following
substantial completion of Landlord's repair and restoration work, if
any (as determined by ▇▇▇▇▇▇▇▇'s architect).
F. If Landlord is unable to or fails to substantially complete its repair
or restoration by the date ("Outside Date") which is the later of (i)
the estimated completion date plus 60 days or (ii) twenty-four (24)
months from the date of such fire or casualty, in each case as
extended by (a) delays due to insurance adjustment or (b) matters
beyond Landlord's reasonable control, then either Landlord (if it has
used all reasonable efforts to perform its repair and restoration as
required above) or Tenant may terminate this Lease by notice to the
other given within thirty (30) days after such Outside Date.
37
G. In the case of termination of this Lease under this Section 17, Rent
shall ▇▇▇▇▇ from the date of the fire or casualty in proportion to the
area of the Premises rendered untenantable.
18. DEFAULTS; CONDITIONS LIMITATIONS; REMEDIES.
A. Each of the following events shall be a "Default" under this Lease:
(i) Tenant fails to make any payment of Rent when due, and such
failure continues for ten (10) days after written notice from
Landlord.
(ii) Tenant fails to keep or perform any other term, covenant,
condition, or provision of this Lease, and such failure
continues for thirty (30) days after written notice from
Landlord specifying such failure unless such failure requires
work to be performed, acts to be done, or conditions to be
removed which cannot be performed, done or removed within such
thirty (30) days, in which case the Default shall not be deemed
to exist so long as Tenant:
(a) advises Landlord by written notice within said ten (10) days
that Tenant intends to take all steps necessary to
diligently remedy such failure and specifies a date by which
all steps will have been completed (which shall not, exceed
thirty (30) days after the date of ▇▇▇▇▇▇▇▇'s notice subject
to matters beyond Tenant's reasonable control);
(b) duly commences curing the same within such period; and
(c) diligently and continuously prosecutes to completion all
steps necessary to remedy the same;
(iii) ▇▇▇▇▇▇, admits, in writing, that ▇▇▇▇▇▇ is unable to pay ▇▇▇▇▇▇'s
debts as such become due;
(iv) ▇▇▇▇▇▇ makes an assignment for the benefit of creditors;
(v) Tenant files a voluntary petition in bankruptcy or a petition is
filed against Tenant and an order for relief is entered, or Tenant
files any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal, state or
other law, or Tenant seeks or consents to, acquiesces in, or
suffers the appointment of any trustee, receiver, or liquidator of
Tenant or of the Premises (or Tenant's interest therein) or of all
or any substantial portion of Tenant's assets;
38
(vi) if, within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future
federal, state or other law, such proceeding is not dismissed
or if, within sixty (60) days after the appointment (without
the consent or acquiescence of Tenant) of any trustee, receiver
or liquidator, of Tenant or of all or any substantial part of
Tenant's properties or of the Premises (or ▇▇▇▇▇▇'s interest
therein), such appointment is not vacated or stayed on appeal
or otherwise, or if, within thirty (30) days after the
expiration of any such stay, such appointment shall not have
been vacated;
(vii) Tenant sublets the Premises (or any part thereof) or mortgages,
pledges, assigns, transfers, or otherwise disposes of or
encumbers this Lease (or any part of Tenant's right, title and
interest hereunder) without complying with all requirements of
this Lease;
(viii) if the Premises shall be taken or occupied by any Person other
than Tenant except as expressly permitted under Section 16
hereof;
(ix) Tenant fails to cure, immediately after receipt of notice form
Landlord, any hazardous condition which Tenant has created in
violation of any Law or this Lease;
(x) if a levy under, execution or attachment is made against Tenant
or ▇▇▇▇▇▇'s property and is not vacated or removed by court
order, bonding or otherwise within thirty (30) days thereafter;
(xi) if the Premises become vacant, deserted or abandoned; and/or
(xii) if there shall be any default by Tenant under any other lease
or sublease of space in the Building which shall not be
remedied within the applicable grace or cure period, if any,
provided therein.
B. If and whenever any Default occurs, at Landlord's option, Landlord may,
but shall not be required to do so:
(i) give written notice to Tenant (the "Lease Termination Notice"),
stating that this Lease and the Term shall expire and terminate
on the date specified in such Lease Termination Notice; or
(ii) give written notice to Tenant (the "Possession Termination
Notice"), stating that ▇▇▇▇▇▇'s right to possession, but not
the Lease, shall expire and terminate on the date specified in
such Possession Termination Notice.
39
Either the Lease Termination Notice or the Possession Termination Notice
may take the form of a statement contained in the notices (if any) required by
subsection 18 A advising the Tenant that unless the Tenant has cured the
violation stated in the notice within the applicable cure period (if any),
Landlord has elected to terminate the Lease or Tenant's right to possession, but
not the Lease, as the case may be, as of the expiration of such cure period.
C. In the event that ▇▇▇▇▇▇▇▇ gives the Lease Termination Notice, this
Lease and the Term (and ▇▇▇▇▇▇'s entire right, title and interest therein) shall
expire and terminate as if the date specified in the Lease Termination Notice
were the expiration date, and ▇▇▇▇▇▇ shall quit and surrender the Premises but
shall remain liable as hereinafter provided. In the event that Landlord gives
the Possession Termination Notice, this Lease shall continue in effect; however,
▇▇▇▇▇▇'s right to possess and occupy the Premises shall expire and terminate on
the date specified in the Possession Termination Notice, and Tenant shall quit
and surrender the Premises on or before such date but shall remain liable as
hereinafter provided.
D. If and whenever any Default occurs, or if this Lease and the Term
terminate under Subsection 18C or otherwise, or if Tenant's right of possession
terminates under Subsection 18C or otherwise, Tenant shall surrender possession
and vacate the Premises immediately, and deliver possession thereof to Landlord,
and hereby irrevocably grants to Landlord full and free license to enter into
and upon the Premises, with or without notice or process of law, and repossess
Landlord of the Premises and to expel or remove Tenant and any others who may be
occupying or within the Premises and to remove any and all property therefrom
using such force for that purpose as may be necessary without being liable to
indictment, prosecution or damages (or being deemed to be guilty of trespass,
eviction, forcible entry or detainer, or conversion of property, or otherwise);
and Tenant shall remain liable as hereinafter provided. If, Landlord so re-
enters, at its option, Landlord may, at Tenant's sole expense payable on demand
as additional Rent:
(i) repair and alter the Premises in such manner as Landlord may deem
reasonably necessary or desirable in connection with efforts to
relet the Premises and change the locks to the Premises without
relieving Tenant of any liability whatsoever under this Lease;
and/or
(ii) let or relet the Premises (or any parts thereof) for the whole
or any part of the remainder of the Term, or for a longer period,
in Landlord's name or as agent of Tenant.
No re-entry by ▇▇▇▇▇▇▇▇, whether under summary proceedings or otherwise, shall
absolve or discharge Tenant from any liability whatsoever under this Lease or be
deemed an election by Landlord to terminate or accept a surrender of this Lease.
Except that Landlord covenants to use reasonable efforts to mitigate damages,
Landlord have no obligation whatsoever to relet the Premises (or any parts
thereof), or to collect any rent or other sum due on any such reletting, or
accept any tenant offered by Tenant or to observe any instructions given by
▇▇▇▇▇▇ concerning such reletting; and except to the extent required by law,
▇▇▇▇▇▇▇▇'s failure to relet, to collect rent or to accept such
40
tenant or instructions shall not relieve Tenant of any liability whatsoever
under this Lease. Tenant shall not be entitled to, or receive any credit for,
any excess of rents collected upon any reletting of the Premises over the Rents
and other sums payable by Tenant under this Lease.
E. If this Lease and the Term terminate under Subsection 18C or otherwise,
or if Tenant's right of possession is terminated under Subsection 18C or
otherwise, or if Landlord re-enters the Premises under Subsection 18D or by any
summary proceeding or other Legal Proceeding, then, in any of such events,
Tenant shall pay Landlord on demand:
(i) all Rent then due under this Lease;
(ii) all reasonable costs and expenses (including reasonable
attorneys' fees and disbursements) which Landlord pays or incurs
in terminating this Lease or Tenant's right of possession, re-
entering, retaking, repossessing, repairing and/or altering the
Premises, and removing all Persons and property therefrom; and
(iii) all reasonable costs and expenses which Landlord incurs in
securing any new tenant(s) of the Premises (including such costs
as brokerage commissions, reasonable attorneys' fees and
disbursements, and expenses of preparing the Premises for
reletting, and if Landlord maintains the Premises, all costs and
expenses of maintaining the Premises).
F. If Tenant's right of possession is terminated as aforesaid, Tenant
shall pay Landlord on demand, also, as damages, any deficiency (a "Deficiency")
between the Rent reserved in this Lease for the period which otherwise would
have constituted the unexpired portion of the Term and the amount, if any, of
rents collected under any reletting effected pursuant to subsection 18D(iii) for
any part of such period (after deducting from such collections all amounts
actually paid by Landlord under Subsection 18 E(iii)). Tenant shall pay any
Deficiency in installments on the days specified in this Lease for payments of
Rent. Landlord shall be entitled to recover from Tenant each Deficiency
installment as the same arises; and no Legal Proceeding to collect, any
Deficiency installment shall prejudice Landlord's right to collect any
subsequent installment by a similar or other Legal Proceeding.
G. If Landlord terminates this Lease as aforesaid, Tenant shall pay
Landlord, on demand, in lieu of any further Deficiency, as and for liquidated
and agreed final damages (it being agreed that it would be impractical or
extremely difficult to fix the actual damages), a sum equal to the amount by
which Rent reserved in this Lease for the period which otherwise would have
constituted the unexpired portion of the term EXCEEDS the then fair and
reasonable rental value of the Premises for the same period, both discounted to
present worth at the rate of four (4%) per cent per annum, LESS the aggregate of
Deficiency installments previously collected by Landlord for the same period.
If, before presentation of proof of such liquidated damages to any court,
commission or tribunal, the Premises (or any part thereof) shall have been relet
for the period which otherwise would have
41
constituted the unexpired portion of the Term, the amount of rent reserved upon
such reletting shall be deemed prima facie evidence of the fair and reasonable
rental value for the part or the whole of the Premises so relet during the term
of such reletting.
▇. ▇▇▇▇▇▇▇▇ may bring Legal Proceedings from time to time, at Landlord's
election, for the recovery of damages, or for a sum equal to any installment or
installments of Rent or any Deficiency or other sum payable by Tenant to
Landlord pursuant to this Section, and nothing in this Lease shall require
Landlord to wait for any such purpose until the date originally scheduled for
termination of the Term.
I. Nothing in this Lease shall limit or prejudice Landlord's right to
prove and obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or dissolution proceeding an amount equal to the
maximum allowed by any applicable law at the time when such damages are to be
proved, whether such amount is greater, equal to, or less than, the amount of
damages otherwise specified in this Section.
J. No receipt and/or retainage of moneys by Landlord from Tenant after the
giving of a Termination Notice, or after a termination of this Lease, shall
reinstate, continue or extend the Term or affect any Termination Notice or other
written notice, previously given to Tenant, or operate as a waiver of Landlord's
right to enforce payment of Rent then or subsequently becoming due, or operate
as a waiver of Landlord's right to recover possession of the Premises. Tenant
agrees that after the giving of a Termination Notice or commencement of summary
proceedings or other Legal Proceeding, or after final order or judgment for
possession of the Premises, Landlord may demand, receive and collect all moneys
without invalidating or rescinding such Termination Notice, Legal Proceeding,
order, suit or judgment; and at Landlord's election, all moneys so collected
shall be deemed payments either on account of the use and occupancy of the
Premises or on account of ▇▇▇▇▇▇'s liability hereunder.
K. In the event Tenant is dispossessed by judgment or warrant of any
court, or in the event of re-entry or repossession by Landlord or in the event
of expiration or any termination of this Lease or ▇▇▇▇▇▇'s right of possession
hereunder, ▇▇▇▇▇▇ (on behalf of Tenant and all Persons claiming by, through, or
under Tenant) hereby expressly waives:
(i) service of any notice of intent to re-enter now or hereafter
provided by law for such purpose;
(ii) any and all rights of redemption now or hereafter provided by
law; and
(iii) any re-entry or repossession or right to restore the Term or
legal continuance of this Lease.
Tenant expressly waives the service of any notice or demand whatsoever, except
those notices required by this Section 18, and agrees that the simple breach of
any covenant or provision of this
42
Lease by Tenant shall, of itself, without the service of any other notice or
demand whatsoever, except those notices specifically required by this Section
18, constitute a Default and a forcible detainer by Tenant of the Premises
within the meaning of the statutes of the State of Illinois.
L. The terms "enter", "re-enter", "entry" or "re-entry", as used in this
Lease, are not restricted to their technical legal meaning. If Landlord
commences any summary proceeding or other Legal Proceeding for non-payment of
Rent, Tenant will not interpose and does hereby waive the right to interpose any
counterclaim of whatever nature or description in any such proceeding.
M. No failure by ▇▇▇▇▇▇▇▇ to insist upon the strict performance of any
covenant agreement, term or condition of this Lease or to exercise any right or
remedy after any Default, and no acceptance of the payment of full or partial
Rent during the continuance of any Default shall constitute a waiver of any such
covenant, agreement, term or condition of this Lease to be performed or complied
with by Tenant, and no Default, shall be waived, altered or modified except by a
written instrument executed by Landlord. No waiver of any default shall affect
or alter this Lease, but each and every term, covenant, condition and provision
of this Lease shall continue in full force and effect with respect to any other
then existing or subsequent Default.
N. [INTENTIONALLY DELETED]
O. (i) Tenant shall pay upon demand all Landlord's costs, charges and
expenses, including the reasonable fees and out-of-pocket expenses of counsel,
agents and others retained by Landlord (including costs of appeal and judgment),
incurred by Landlord in successfully enforcing Tenant's obligations hereunder or
incurred by landlord in any legal proceeding, negotiation or transaction in
which Tenant causes Landlord, without Landlord's fault, to become involved or
concerned.
(ii) Landlord shall pay upon demand all Tenant's costs, charges and
expenses including the reasonable fees and out-of-pocket expenses
of counsel, agents and others retained by ▇▇▇▇▇▇ (including costs
of appeal and judgment) incurred in successfully enforcing
Landlord's obligations hereunder or incurred by ▇▇▇▇▇▇ in any
legal proceeding, negotiation or transaction in which Landlord
causes Tenant without Tenant's fault to become involved or
concerned.
P. [INTENTIONALLY DELETED].
Q. In the event of any threatened breach by Tenant of any term, covenant,
condition or provision of this Lease, Landlord shall be entitled to enjoin such
Default or threatened breach and shall have the right to invoke all rights and
remedies allowed at law or in equity as though this Lease did not provide for
re-entry, summary proceedings, or other remedies.
R. Each right and remedy of Landlord in this Lease shall be cumulative and
in addition to every other right or remedy in this Lease, or now or hereafter
existing at law or in equity; and the
43
exercise (or beginning of exercise) by Landlord of any one or more rights or
remedies shall not preclude the simultaneous or later exercise by Landlord of
any and all other rights or remedies.
19. EMINENT DOMAIN. A. If the Property, or any portion thereof which includes
a substantial part of the Premises, shall be taken or condemned by any competent
authority for any public use or purpose, the term of this Lease shall end upon,
and not before, the date when the possession of the part so taken shall be
required for such use or purpose, and without apportionment of the award. Rent
shall be apportioned as of the date of such termination. If a substantial part
of the Property other than the Premises shall be taken or condemned by any
competent public authority for any public use or purpose, Landlord shall have
the right in Landlord's reasonable opinion to cancel this Lease upon not less
than 180 days' notice prior to the date of cancellation designated in the
notice. No money or other consideration shall be payable by Landlord to Tenant
for said cancellation, and the Tenant shall have no right to share in the
condemnation award or in any judgment for damages caused by said eminent domain
proceeding and any right of Tenant to receive the proceeds of any such award are
hereby assigned to Landlord, except as hereinafter provided.
B. Provided, however, that to the extent (a) Tenant is entitled under the
law to receive a separate award in a separate proceeding, following or apart
from the determination of the award for other interests in Property, in respect
of (i) the unamortized value of any existing improvements made by Tenant and
which Tenant is permitted to remove under this Lease (but only if such
improvements were (A) not paid for in whole or part by Landlord or any
contribution from Landlord, and (B) were proven in such proceeding to have
enhanced the value of the Building at least to the extent of such unamortized
value), or (ii) for moving or for business interruption, and (b) such separate
award does not reduce the award otherwise payable to Landlord or the fee owner
of the Land or Building, then Tenant shall be entitled to such an award which it
claims, proves and receives at its own expense. Tenant's rights under this
paragraph shall be subject to the rights of Landlord and any Superior
Encumbrance to any award for eminent domain.
20. SUBORDINATION AND SUPERIORITY OF THIS LEASE. This Lease shall be prior to
any Superior Encumbrance, subject to the terms and conditions of this Section,
▇▇▇▇▇▇ agrees to subordinate its rights hereunder at all times to any Superior
Encumbrance and to execute evidencing such subordination as may be required by
the mortgagee or ground or underlying lessor, as the case may be, and to attorn
to and to recognize, as Landlord, the purchaser at a foreclosure sale or the
mortgagee or its nominee in the event the mortgagee or such nominee in the event
the mortgagee or such nominee accepts a deed in lieu of foreclosure, or the
ground or underlying lessor in the event of termination of such underlying or
ground lease, in return for and upon delivery to Tenant by such purchaser or
such mortgagee or its nominee or the ground or underlying lessor, as the case
may be, of an agreement providing that in the event of a foreclosure of such
mortgage or the giving of the deed in lieu of foreclosure or a termination of
such ground or underlying lease, this Lease shall not be terminated and Tenant
may remain in possession of the Premises pursuant to the terms of this Lease and
retain all the rights, options and privileges granted to it hereunder as long
Tenant is not in Default hereunder and continues to perform its obligations
hereunder and further providing that the purchaser at a foreclosure sale or
transferee in the case of a deed given in lieu of foreclosure or
44
ground or underlying lessor, as the case may be, will assume all of the
obligations of the Landlord in such case; provided, however, that in no event
shall the mortgagee, said purchaser at a foreclosure sale, said transferee in
the case of a deed given in lieu of foreclosure or ground or underlying lessor,
as the case may be, have any personal liability whatsoever hereunder for its own
acts or omissions or obligations; and further provided that the mortgagee, said
purchaser at a foreclosure sale or said transferee in the case of a deed given
in lieu of foreclosure or ground or underlying lessor, as the case may be, shall
also have no personal liability for the acts or omissions or obligations of
Landlord arising or to be performed prior to any such sale or transfer of the
Land or Building to such party except to the extent such acts or omissions or
obligations of Landlord continue after foreclosure or a foreclosure sale
including, without limitation, any liability for any deposits made by the Tenant
hereunder, unless such deposits have been transferred to such party; and
provided, further, that the mortgagee, said purchaser at a foreclosure sale,
said transferee in the case of a deed given in lieu of foreclosure or ground or
underlying lessor, as the case may be, shall be subject to any offsets or
defenses which Tenant might have against any prior Landlord pursuant to Tenant's
rights as set forth in Sections 7 or 35 hereof. Such agreement may, among other
things, require the Tenant to notify the mortgagee or the ground or underlying
lessor of any default by the Landlord and afford such mortgagee the opportunity
to cure such default prior to any termination of this Lease by ▇▇▇▇▇▇ (as
provided in Section 28) provided that the Premises are reasonably usable by
Tenant for its normal business activities. ▇▇▇▇▇▇ further agrees that, except as
to secondary mortgage financing expressly permitted in such mortgage or ground
or underlying lease, it will not, without the consent of the mortgagee or ground
or underlying lessor, as the case may be, voluntarily subordinate this Lease to
any lien or encumbrance without the consent of said mortgagee or ground or
underlying lessor, as the case may be.
21. SPRINKLERS. If state or city government or any fire insurance underwriters
for fire insurance for the Property, requires or recommends that any changes,
modifications, alterations or additional sprinkler heads or other equipment be
made or supplied by reason of Tenant's business or the location of partitions,
trade fixtures, or other contents of the Premises, or for any other reason, or
if any such changes, modifications, alterations, additional sprinkler heads or
other equipment, become necessary to prevent the imposition of a penalty or
charge against the full allowance for a sprinkler system in the fire insurance
rate as fixed by said underwriters, or by any fire insurance company, Tenant
shall, at Tenant's expense, promptly make and supply such changes,
modifications, alterations, additional sprinkler heads or other equipment.
22. LANDLORD'S MAINTENANCE. Landlord, as an Operating Expense, shall keep and
maintain the Building and its fixtures, appurtenances, systems and facilities
serving the Premises, in good working order, condition and repair and shall make
all repairs, structural and otherwise, interior and exterior, as and when needed
in or about the Building and the Premises, except for those repairs for which
Tenant is responsible pursuant to any other provisions of this Lease. Without
limiting the generality of the foregoing, Landlord shall repair and maintain,
and if necessary, replace (i) Building structure, foundation, roof, gutters,
exterior walls, window coverings, windows, and all other exterior and structural
parts of the Building, (ii) halls, stairways and entryways, elevators and common
45
passageways and all other common areas of the Building, (iii) premises occupied
by other tenants to the extent necessary to prevent any damage to the Premises,
and (iv) all elements of the plumbing system, the sprinkler system, the light
fixtures and electrical distribution system, the heating, ventilating and air
conditioning system and any other of the Building's shared systems located
within the Premises, and any damage caused to any items in the Premises which
would become the property of the Landlord upon termination of this Lease by any
malfunction or misfunction of such systems, except only for any supplementary
portions of such systems owned by Tenant. Nothing contained in this Section 22
shall require Landlord to paint or decorate the Premises. No liability of
Landlord to Tenant shall accrue however under subparagraphs (iii) and (iv) above
unless and until Tenant has given written (except in the case of an emergency)
notice to Landlord of the specific repair required to be made or of the failure
to properly furnish any service and Landlord does not promptly thereafter
undertake and diligently pursue such repair or furnish such service. Landlord
shall have no obligation to maintain, repair or replace the pedestrian bridge
described in Section 37.
23. NOTICE. In every instance where it shall be necessary or desirable for
Tenant to give or serve any notice or demand upon Landlord, such notice or
demand shall be in writing and sent by United States Registered or Certified
Mail (return receipt requested), postage prepaid or by a commercial courier,
prepaid, addressed to Landlord c/o the Rental Agent at the place where rental
under this Lease is then being paid. Any notice or demand to be given or served
by Landlord to Tenant shall be effective if mailed or delivered by Landlord or
Landlord's Rental Agent to The Northern Trust Company ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Vice President Corporate Real Estate with a copy
to: The Northern Trust Company, ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: General Counsel. Notice mailed as aforesaid shall be conclusively
deemed to have been served at the close of the second business day following the
date said notice was mailed; notice delivered by courier as aforesaid shall be
conclusively deemed to have been received at the close of the first business day
following the date said notice was given to the courier.
24. SUCCESSORS AND ASSIGNS. Each provision hereof shall extend to and shall,
as the case may require, bind and inure to the benefit of Landlord and Tenant
and their respective heirs, legal representatives, successors and assigns,
provided that this Lease shall not inure to the benefit of any assignee, heir,
legal representative, transferee or successor of Tenant except any permitted
assignee as provided in Section 16.
The term "Landlord", as used in this Lease, means only the owner, or the
mortgagee in possession (including anyone claiming any title or any interest in
the Land or Building by, through or under said mortgage), for the time being, of
the Property (or the owner of a lease of the Building or of the Real Estate and
the Building) of which the Premises form a part, so that in the event of any
conveyance or sale of said Real Estate and the Building (including a sale or
transfer arising by virtue of a foreclosure of any mortgage of the Land or the
Building or any deed given in lieu of foreclosure thereof) or of said Lease, or
in the event of a lease of the Building, or of the Real Estate and the Building,
the seller or lessor shall be and hereby is entirely free and relieved of all
covenants, obligations and liabilities of Landlord hereunder, and it shall be
deemed and construed as a covenant running with the land without further
agreement between the parties or their successors in interest,
46
or between the parties and the purchaser at any such sale, or the said lessee of
the Building, or of the Real Estate and the Building, provided that the
purchaser or the lessee of the Building, as applicable, has (subject to the
provisions of Section 20) assumed and agreed to carry out any and all covenants,
obligations and liabilities of Landlord hereunder.
25. INSURANCE.
▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ agree to have all property insurance policies which
may be carried by either of them, and ▇▇▇▇▇▇ agrees to have all business
interruption insurance carried by it, endorsed with a clause providing that any
release from liability of or waiver of claim for recovery from the other party
entered into in writing by the insured thereunder prior to any loss or damage
shall not affect the validity of said policy or the right of the insured to
recover thereunder, and providing further that each insurer waives all rights of
subrogation which such insurer may have against the other party. Without
limiting any release or waiver of liability or recovery contained in any other
paragraph of this Lease, but rather in confirmation and furtherance thereof,
Landlord and Tenant each hereby waive and release any and every claim for
recovery from the other, its officers, agents, employees and beneficiaries for
any and all loss of or damage to the Property or to the contents thereof or
damages as a result of business interruption, which loss or damage is covered by
valid and collectible fire and extended coverage insurance policies, to the
extent that such loss or damage is recoverable by the party giving the waiver
under said insurance policies, or would have been recoverable by the party
giving the waiver had it carried the insurance required of it under this Lease.
Inasmuch as this mutual waiver will preclude the assignment of any such claim by
subrogation (or otherwise) to an insurance company (or any other Person),
Landlord and Tenant each agree to give to each insurance company which has
issued, or in the future may issue, to it such property and business
interruption insurance policies, written notice of the terms of this mutual
waiver, and to have said insurance policies properly endorsed, if necessary, to
prevent the invalidation of said insurance coverage by reason of said waiver.
B. At all times during the Term of this Lease, Tenant shall at its sole
cost and expense maintain in full force and effect insurance protecting Tenant
and Landlord and its respective agents and any other Persons reasonably
designated by Landlord from time to time, with terms, coverages and in companies
at all times reasonably satisfactory to Landlord and with such increases in
limits as Landlord may, from time to time, reasonably request. Initially, such
coverage shall be in the following amounts:
(i) Commercial Liability Insurance, including Contractual Liability
insuring the indemnification provisions contained in this
Lease, with limits of not less than Three Million Dollars
($3,000,000.00) combined single limit per occurrence for Bodily
Injury, Death and Property Damage. The liability policy shall
include as an additional insured the Landlord, with a
severability of interest endorsement.
47
(ii) Insurance against (A) "All Risks", "Special Form" or comparable
coverage of physical loss coverage for all betterments and
improvements to the Premises, including alterations, and
including any improvements or betterments made by Tenant
outside the Premises (including the pedestrian bridge described
in Section 37) whether in existence upon execution of this
Lease or made hereafter, the entire replacement cost from time
to time of all movable fixtures, office equipment, furniture,
trade fixtures, merchandise and all other items of Tenant's
property on the Premises; plus valuable papers insurance
covering documents and papers of value in Tenant's vaults with
limits not less than those customarily carried by prudent
tenants in such businesses and (B) loss of use of the Premises.
Insurance carried by Tenant shall be with insurers licensed to do business
in the State of Illinois, have a Best's (or comparable rating entity's)
financial rating of A and a financial size of X or higher.
C. The policy referred to in Section 25B(i) shall name Landlord,
▇▇▇▇▇▇▇▇'s Building manager and their respective agents and employees (and the
holder of a Superior Encumbrance, if required by such holder) as additional
insureds, and the policy in Section 25B (ii)(A) shall insure Landlord as its
interests may appear and the holder of any Superior Encumbrance under a standard
mortgagee clause.
D. Tenant shall, prior to the earlier of (a) the Commencement Date, or (b)
the entry upon the Premises by Tenant or its Employees or contractors, and prior
to the expiration of any policy, furnish Landlord with certificates evidencing
that all required insurance is in force and providing that such insurance may
not be canceled or changed without at least thirty (30) days' prior written
notice to Landlord and Tenant (ten (10) days' in case of non-payment of
premium). All policies shall contain a provision that no act or omission of
Tenant shall affect or limit the obligation of the insurer to pay the amount of
any loss sustained.
▇. ▇▇▇▇▇▇ and Landlord shall cooperate with each other and with the holder
of any Superior Encumbrance in connection with collection of any insurance
monies.
F. All insurance of Tenant shall be primary and not contributory with any
insurance of Landlord. Tenant shall not secure separate insurance concurrent in
form or contributing in the event of loss with any insurance policy required
under this Lease unless Landlord is included as a named insured with loss
payable to Landlord. Tenant shall give Landlord written notice promptly upon
securing any such separate insurance, specifying the insurer and full
particulars of applicable policies.
▇. ▇▇▇▇▇▇ shall, before seeking any recovery from Landlord or Landlord's
insurer, recover all sums payable by ▇▇▇▇▇▇'s insurer. For purposes of Tenant's
waiver of claims in Section 25A of this Lease, any deductible in excess of
$5,000 shall be deemed to be self-insured and, for purpose of
48
any waiver of claims, any such excess deductible or other self-insurance shall
be deemed to have been recoverable under insurance carried by Tenant.
H. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate any insurance policy or be in conflict with any
insurance requirements, or increase the rate of fire insurance premium
applicable to the Building, or necessitate Landlord's carrying of additional
insurance coverage; and Tenant shall not do or permit to be done any act or
thing upon the Premises which will or might subject Landlord to any liability or
responsibility for injury to any Person or to property. Tenant shall reimburse
Landlord, as additional Rent upon demand, for all increases of Landlord's
insurance premiums resulting from violations of Tenant's obligations under this
Section. In any Legal Proceeding involving the cost of insurance, a schedule or
"make-up" of rates issued by the body making insurance rates for the Building or
the Premises shall be presumptive evidence of the items and charges taken into
consideration in fixing the insurance rates then applicable to the Premises or
the Building.
I. At all times during the Term of this Lease, Landlord shall carry
insurance with commercially reasonable deductible amounts and with reputable and
solvent insurance companies authorized to do business in Illinois in the
following amounts: (i) "all-risk" or "special form" replacement cost property
insurance on the Building against fire and other extended coverage perils
(including boiler and machinery and electrical apparatus coverage) in an amount
sufficient to prevent Landlord from being deemed a co-insurer of the risks
insured under the policy, (ii) commercial liability insurance, including
contractual liability, in an amount not less than $3,000,000.00 per occurrence.
26. MISCELLANEOUS.
A. Wherever there is provided in this Lease a time limitation for
performance by the Landlord or Tenant of any construction, repair, maintenance
or service, the time provided for shall be extended for as long as and to the
extent that delay in compliance with such limitation is due to an act of God,
public enemy, strikes, governmental control, fire, flood, quarantine
restriction, freight embargo, shortage of materials or labor, or other factors
beyond the reasonable control of the Landlord or Tenant.
B. If any provision of this Lease or application to any party or
circumstances shall be determined by any court of competent jurisdiction to be
invalid and unenforceable to any extent, the remainder of this Lease and the
application of such provision to such person or circumstances, other than those
as to which it is so determined invalid or unenforceable to any extent, shall
not be affected thereby, and each provision hereof shall be valid and shall be
enforced to the fullest extent permitted by law.
C. The headings of sections are for convenience only and do not define,
limit or construe the contents of such sections or subsections. References made
in this Lease to numbered sections and
49
subsections shall refer to the numbered sections or subsections of this Lease,
unless otherwise indicated.
D. The Lease is to be executed in copies, each of which executed copy
shall constitute an original.
E. Each of the parties agrees, at the request of the other, to execute
such instruments or documents as any party may reasonably request,
acknowledging: the date of completion of construction of Premises; the date of
acceptance of possession of Premises; the date of commencement of Rent; the
commencement of the Term; the commencement and expiration dates of this Lease;
▇▇▇▇▇▇'s Proportionate Share of the Operating Expenses, Taxes, Operating Expense
Deposits for any Lease Year; the number of rentable square feet demised to the
Tenant; Base Rent amount; and the compliance or noncompliance by any party with
any of the terms or provisions of this Lease; and to evidence such other or
further matters as may be so reasonably requested by Tenant or Landlord.
▇. ▇▇▇▇▇▇ represents to Landlord, and Landlord represents to Tenant, that
except for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Midwest L.L.C., the representing
party has not dealt with any real estate broker in connection with this Lease
and, to its knowledge, no broker other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
Midwest L.L.C. initiated or participated in the negotiation of this Lease,
submitted or showed the Premises or any other space in the Building to Tenant or
is entitled to any commission or fee in connection with this Lease. ▇▇▇▇▇▇
hereby agrees to indemnify, defend, and hold Landlord harmless from and against
any and all claims of any other real estate broker for commissions or fees in
connection with this Lease who claim to have dealt with the Tenant or Staubach
Midwest L.L.C. not in accordance with its commission agreement with ▇▇▇▇▇▇▇▇
entered into prior to the date of this Lease. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees to
indemnify, defend and hold Tenant harmless from and against any and all claims
of any other real estate broker for a commission or fee in connection with this
Lease who claims to have dealt with Landlord.
▇. ▇▇ receipt of money by Landlord from Tenant after the termination of
this Lease, the service of any notice, the commencement of any suit or final
judgment for possession shall reinstate, continue or extend the term of this
Lease or affect any such notice, demand, suit or judgment.
H. No waiver of Default of Tenant shall be implied, and no express waiver
shall affect any Default other than the Default specified in such waiver and
then only for the time and to the extent therein stated. No agreement to accept
a surrender of this Lease shall be valid unless in writing signed by Landlord.
No Employee of Landlord shall have any power to accept the keys of the Premises
prior to the expiration of the Term. The delivery of keys to any Employee of
Landlord shall not operate as a termination of this Lease or an acceptance of a
surrender of the Premises. If Tenant, at any time, desires to have Landlord
sublet the Premises for Tenant's account, Landlord is authorized to receive said
keys for such purpose without releasing Tenant from any of the obligations under
this Lease. The failure of Landlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
or any of the rules and regulations (now or
50
hereafter in effect) shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of Rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of such breach.
I. Clauses, plats, exhibits and riders, if any, affixed to this Lease are
part hereof and in the event of variation or discrepancy, the duplicate original
hereof, including such clauses, plats and riders, if any, held by Landlord shall
control.
J. Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant. Submission of this instrument to Landlord, signed by Tenant, shall
constitute an irrevocable offer to lease the Premises on the terms herein stated
to and including November 30, 2000.
K. Wherever the consent of either Landlord or Tenant is required by the
provisions of this Lease, such party shall not unreasonably withhold, condition,
or delay such consent.
L. No modifications, termination or surrender of this Lease or surrender
of the Premises or any part thereof or of any interest therein by Tenant shall
be valid or effective unless agreed to and accepted, in writing, by Landlord,
and no act by any representative or agent of Landlord, other than delivery of
such a written agreement and acceptance by Landlord shall constitute an
acceptance thereof.
M. This Lease shall be construed and enforced in accordance with the laws
of the State of Illinois.
N. As used herein, the terms "Landlord" or "Tenant" and any pronouns used
to refer to Landlord or Tenant shall, as the context requires, include the
singular and the plural, and the masculine, feminine and neuter.
O. This Lease has been jointly negotiated and reviewed by all of the
parties hereto and shall be construed accordingly; any principle or rule of
construction which construes any provision of this Lease against the draftor of
the Lease is hereby declared to be inapplicable to this Lease and all parties to
this Lease.
P. Except as otherwise expressly provided in this Lease, each covenant,
agreement, obligation or other provision of this Lease on Tenant's part to be
performed shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease.
Q. Time shall be of the essence with respect to every provision under this
Lease.
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R. [INTENTIONALLY DELETED].
S. This Lease and the exhibits attached hereto represent the entire
agreement between the parties hereto relating to the subject matter hereof and
all prior agreements, representations and understandings, either oral or
written, are merged herein.
T. This Lease shall not be recorded; provided, however, at the request of
either party, Landlord and Tenant shall execute a short form of this Lease
containing the Premises and Term in the form of Exhibit N (and terminate any
existing short form or memorandum of lease) for the purpose of giving record
notice of this Lease and ▇▇▇▇▇▇'s possession or amend any existing recorded
short form lease to reflect the present premises and term.
27. ESTOPPEL CERTIFICATES. The Tenant agrees that, from time to time upon not
less than ten (10) business days prior written request by ▇▇▇▇▇▇▇▇, the Tenant,
or ▇▇▇▇▇▇'s duly authorized representative having knowledge of the following
facts, will deliver to Landlord a statement in writing certifying: (i) that this
Lease is unmodified and in full force and effect (or if there have been
modifications that the Lease, as modified, is in full force and effect); (ii)
the dates to which Rent and other charges have been paid; (iii) to the knowledge
of Tenant, that the Landlord is not in default under any provision of this
Lease, or, if in default, the nature thereof in detail, and (iv) as to such
other matters as may be reasonably requested by Landlord relating to the status
of the Lease, it being intended that any such statement may be relied upon by
any prospective purchaser or tenant of the Property, any mortgagees or
prospective mortgagees thereof, or any prospective assignee of any mortgage
thereof. Tenant shall execute and deliver the form of Estoppel Certificate
attached hereto as Exhibit E, or such other form required by Landlord meeting
criteria set forth above as is reasonably acceptable to Tenant. In the event
Tenant fails so to do within twenty (20) business days after demand in writing,
Tenant shall be considered in Default under this Lease, or at Landlord's option,
the failure to deliver such instruments within such time shall be conclusive
upon Tenant that this Lease is in full force and effect, without modification
except as may be represented by Landlord, there are no uncured defaults by or
defenses or claims against Landlord and that not more than one (1) month's
rental has been paid in advance and Tenant shall be estopped from asserting any
defaults, defenses or claims known to it at that time. In the event that any
existing or prospective purchaser or holder of a Superior Encumbrance requires
information from Tenant in order to comply with the rules and regulations of the
Employee Retirement Income Security Act ("ERISA"), Tenant shall promptly
represent to such holder such information as such holder may reasonably require
in order to determine its compliance with ERISA requirements and Tenant shall
indemnify such holder against any inaccuracy in such representation.
28. MORTGAGEE PROTECTION. Tenant will pay no Rent under this Lease more than
thirty (30) days in advance of its due date other than Operating Expense
Deposit, unless otherwise agreed by the holder of any Superior Encumbrance.
Tenant shall give the holder of any Superior Encumbrance whose name and
address shall have been given in writing to Tenant a copy of any notice of
default or claim given by Tenant to Landlord,
52
such notice to be given by registered or certified mail or by commercial
courier. Tenant will not exercise any right which it may have to terminate this
Lease, or ▇▇▇▇▇ Rent or set off any amounts against Rent unless Tenant first
gives written notice of such act or omission to the holder of each such Superior
Encumbrance and gives the holder of the Superior Encumbrance at least thirty
(30) days after the giving of such notice to remedy such act or omission, plus
the time to obtain possession if possession is necessary to remedy such act or
omission (during which time such holder shall have the right, but no obligation,
to remedy the alleged act or omission). Tenant agrees, further, not to exercise
any such right if the holder of any such Superior Encumbrance commences to cure
such act or omission within thirty (30) days after such notice and diligently
prosecutes such cure to completion.
29. ▇▇▇▇▇▇▇▇'S COMPLIANCE WITH LAW.
A. Landlord shall be responsible for keeping those portions of the core
and shell of the Building (the term "core and shell" not deemed to include
improvements and betterments to any tenant's premises, including the Premises)
in compliance with Laws, whose condition, if a violation existed, would
materially affect Tenant's use and occupancy of the Premises for office use or
subject Tenant to criminal liability, fines or penalties. The foregoing
obligation on the part of Landlord shall not limit the obligations of Tenant as
set forth in the this Lease, or in any other provision of the Lease requiring
Tenant to repair damage caused by it or its employees, agents or contractors, or
to make alterations required by any Law which affect Tenant or the Premises
solely by reason of its manner of use of the Premises.
B. Landlord shall have responsibility for compliance with Title III of the
provisions of the Americans With Disabilities Act of 1990 ("ADA") and
regulations promulgated thereunder applicable to Building common areas
(including Building entrances, lobbies, hallways not located in tenants' spaces
and corridors, restrooms, public elevators), and Tenant shall have
responsibility for compliance with ADA as to the entrances to and interior of
the Premises. If as a result of Tenant's alterations and additions or
particular use of the Premises (other than general office use), Landlord is
required to alter common areas, Tenant shall pay the cost of such alterations.
C. During the term of the Lease, Landlord shall fully comply with any
Environmental Laws. Landlord shall not cause or permit its business in the
Premises to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials, except in
compliance with all Environmental Laws. Landlord shall notify Tenant if it
receives a notice of Landlord's violation of Environmental Laws if such
violation would affect Tenant's safe occupancy of the Premises. Landlord shall
obtain all necessary permits under Environmental Laws and shall make them
available for inspection by ▇▇▇▇▇▇, at ▇▇▇▇▇▇'s written request. Landlord, for
itself and its successors and assigns, shall indemnify, defend and hold Tenant
harmless from and against any claims, demands, liabilities and damages
(including, but not limited to, attorneys' fees and court costs) arising out of
or in connection with ▇▇▇▇▇▇▇▇'s violation of Environmental Laws. The
obligations of this paragraph shall survive the expiration or termination of
this Lease.
53
▇. ▇▇▇▇▇▇▇▇, at its expense, may contest the validity of any Laws and
postpone compliance therewith pending such contest (so long as Tenant is not
subject to criminal proceeding criminal investigation, criminal liability, fines
or penalties as a result). If ▇▇▇▇▇▇ receives written notice of any violation
of any Laws applicable to the Premises, it shall give prompt notice thereof to
Landlord.
30. INDEMNIFICATION BY TENANT.
▇. ▇▇▇▇▇▇ hereby agrees, to the fullest extent permitted by Law, to
indemnify each and every Indemnitee and hold each and every Indemnitee harmless
from and against (and to pay the full amount of) all loss, liability,
obligation, damage, penalty, tax, cost, claim, demand, judgment, charge or
expense of every kind whatsoever which any Indemnitee may suffer, incur, or pay
out, or which may be asserted against any Indemnitee, in whole or in part, by
reason of, or in connection with:
(i) any Legal Proceeding brought by Tenant against Landlord (or any
officer, partner, or Employee of Indemnitee) in which ▇▇▇▇▇▇
fails to secure a judgment against Indemnitee, final beyond
appeal; and
(ii) any negligent or willful act or omission of Tenant or ▇▇▇▇▇▇'s
Employees or invitees (to the extent not waived pursuant to the
provision of Section 25A).
(iii) use of Tenant's name on the Building (if named for Tenant under
Section 47).
B. Tenant shall defend any and all Legal Proceedings commenced against
Indemnitee by any Person (other than Tenant) concerning any matter which may or
might be covered by any indemnity or obligation under Subsection 31A (ii) (i.e.,
regardless of any alleged fault or cause) using counsel reasonably acceptable to
Landlord (provided that counsel of the insurance company shall be deemed
acceptable), and Landlord shall have the right, but not the obligation, to
participate in such defense with counsel of its choice. Tenant shall deliver to
Landlord copies of documents served in any such Legal Proceeding and, whenever
requested by Landlord, shall advise as to the status of such Legal Proceeding.
If Tenant fails to defend diligently any such Legal Proceeding, or if Landlord
elects to defend by written notice to Tenant at any time, Landlord shall have
the right (but no obligation) to defend the same at Tenant's expense. Tenant
shall not settle any such Legal Proceeding without a release of Landlord without
Landlord's prior written consent.
C. Tenant shall notify Landlord and all applicable insurers immediately of
every Legal Proceeding or claim which may or might be covered by any indemnity
under this Section and/or by any required insurance.
54
31. INDEMNIFICATION BY LANDLORD.
▇. ▇▇▇▇▇▇▇▇ hereby agrees, to the fullest extent permitted by law, to
indemnify Tenant and hold Tenant harmless from and against (and to pay the full
amount of) all loss, liability, obligation, damage, penalty, tax, cost, claim,
demand, judgment, charge or expense of every kind whatsoever which Tenant may
suffer, incur, or pay out, or which may be asserted against Tenant, in whole or
in part, by reason of, or in connection with:
(i) any Legal Proceeding brought by Landlord against ▇▇▇▇▇▇ (or any
officer, partner, or Employee of Tenant) in which Landlord fails
to secure a judgment against ▇▇▇▇▇▇, final beyond appeal; and
(ii) any negligent or willful act or omission of Landlord or
Landlord's Employees or invitees (to the extent not waived
pursuant to the provisions of Section 25A).
B. Landlord shall defend any and all Legal Proceedings commenced against
Tenant by any Person (other than Landlord) concerning any matter which may or
might be covered by any indemnity or obligation under Subsection 30A(ii) (i.e.,
regardless of any alleged fault or cause) using counsel reasonably acceptable to
Tenant (provided that counsel of the insurance company shall be deemed
acceptable), and Tenant shall have the right, but not the obligation, to
participate in such defense with counsel of its choice. Landlord shall deliver
to Tenant copies of documents served in any such Legal Proceeding and, whenever
requested by ▇▇▇▇▇▇, shall advise as to the status of such Legal Proceeding. If
Landlord fails to defend diligently any such Legal Proceeding, or if Tenant
elects to defend by written notice to Landlord at any time, Tenant shall have
the right (but no obligation) to defend the same at Landlord's expense.
Landlord shall not settle any such Legal Proceeding without a release of Tenant
without ▇▇▇▇▇▇'s prior written consent.
C. Landlord shall notify Tenant and all applicable insurers immediately of
every Legal Proceeding or claim which may or might be covered by any indemnity
under this Section or by any required insurance.
32. POSSESSION. Tenant is presently in possession of the Existing Premises.
33. EXONERATION CLAUSE.
A. This Lease is executed by the undersigned, LaSalle Bank National
Association, not personally, but as Trustee in the exercise of the power and
authority conferred upon and vested in it as such Trustee and under the express
direction of the beneficiaries of the said Trust. It is expressly understood
and agreed that all of the warranties, indemnities, representations, covenants,
undertakings and agreements herein made on the part of the Trustee are
undertaken by it solely in its capacity as Trustee and not personally. No
personal liability or personal responsibility is assumed by
55
or shall at any time be asserted or enforceable against the Trustee on account
of any warranty, indemnity, representation, covenant, undertaking or agreement
of the Trustee in this instrument.
B. Tenant agrees to look solely to Landlord's interest in the Property, or
the lease of the Building or of the Property, and the Premises, for the
satisfaction of any right or remedy of Tenant for the collection of a judgment
(or other judicial process) requiring the payment of money by Landlord, in the
event of any liability by Landlord, and no other property or assets of Landlord
or Landlord's Affiliates shall be subject to levy, execution, attachment, or
other enforcement procedure for the satisfaction of ▇▇▇▇▇▇'s remedies under or
with respect to this Lease, the relationship of Landlord and Tenant hereunder,
or ▇▇▇▇▇▇'s use and occupancy of the Premises, or any other liability of
Landlord or Landlord's Affiliates to Tenant.
34. WAIVER OF JURY TRIAL. Tenant and Landlord hereby waive trial by jury in any
Legal Proceeding brought by either against the other with respect to ▇▇▇▇▇▇▇▇'s
recovery of possession under this Lease, but not otherwise.
35. LANDLORD DEFAULT AND PERFORMANCE BY TENANT.
------------------------------------------
A. If Landlord shall at any time default in the performance of any
obligation under this Lease which may be performed solely by the payment of
money, and such default shall continue for ten (10) days after written notice
from Tenant to Landlord, Tenant shall have the right, but shall not be
obligated, to make such payment on behalf of Landlord. In the event that any
services to be performed by Landlord for Tenant under this Lease shall be
totally suspended and Landlord shall not have commenced and diligently pursued
the repair or restoration of such service within ten (10) days after written
notice to Landlord from Tenant (which period may be extended as a result of
delays described in Section 26A for a period equal to any and such delays), (i)
Tenant shall have the right, but shall not be obligated, to perform such
obligation if such obligation affects the Premises and not the Building
generally, and (ii) Tenant shall have such other rights or remedies allowed by
law. In performing such obligation under subsection (i) above, Tenant may make
any payment of money or performance any other act related to the repair or
restoration of such service.
B. If Landlord shall at any time default in the performance of any other
material obligation under this Lease which materially affects Tenant's ability
to conduct business from the Premises and such default continues for a period of
sixty (60) days after written notice from Tenant to Landlord and the holder of
any Superior Encumbrance (provided, however, that such sixty day period shall be
extended if such default cannot be reasonably cured within such sixty day
period) and Landlord shall have promptly, within such sixty day period
undertaken a cure, and diligently pursues such cure to completion and provided
further that an opportunity to cure shall have been given the holder of a
Superior Encumbrance under Section 28 hereof, Tenant may terminate this Lease or
bring an action in law or equity to recover damages and require Landlord to
perform its obligations hereunder.
56
C. All sums reasonably paid by Tenant pursuant to this Section 35,
together with interest at the rate of 2% per annum over the Prime Rate and all
necessary incidental costs and expenses in connection with the payment or
performance of any such act by Tenant shall be payable to Tenant immediately
upon demand and if not so paid within thirty (30) days after demand and are not
then subject of a good faith dispute between Landlord and Tenant, may be
deducted or set off against any amount (including Rent) due Landlord under this
Lease. Further, any Allowance, Put Space Allowance or other allowance required
to be paid by Landlord to Tenant for Expansion Space or First Offer Space not
paid when due which is thereafter not paid within thirty (30) days after demand
to Landlord and notice to the holder of a Superior Encumbrance as required under
this Lease, and which is not the subject of a good faith dispute, may be
deducted or set off by Tenant against any amount including Rent due under this
Lease.
D. Unless otherwise provided specifically to the contrary, this Lease and
▇▇▇▇▇▇'s obligations to pay Rent and perform all of Tenant's other covenants,
agreements, terms, provisions and conditions hereunder shall not be affected,
impaired or excused because Landlord is unable to furnish or is delayed in
furnishing any work or service whatsoever expressly or implicitly to be
furnished, or is unable to make or is delayed in making any repairs, if Landlord
is prevented, or delayed from so doing by reason of any cause beyond Landlord's
reasonable control (including strikes, governmental preemption in connection
with a national emergency, Laws, failure of utilities or public services, or
severe weather).
36. MOST FAVORED TENANT. Tenant is executing this Lease upon Landlord's
-------------------
representation that ▇▇▇▇▇▇ has received the most favorable terms in certain
economic issues under this Lease that Landlord is presently prepared to agree
upon with a "Major Tenant" (a tenant leasing more than 150,000 square fee to
Rentable Area in the Building) for occupancy in the Building. If within the
period ending eighteen months (18) months after execution of this Lease by
Landlord and ▇▇▇▇▇▇, Landlord agrees, in an executed lease with a Major Tenant,
to give another such Major Tenant more favorable terms than the Rent per RSF
(other than Rent for Extension Premises in effect for the period prior to April
1, 2005) under this Lease, Tenant shall be entitled, in accordance with this
Section, to have this Lease amended by Landlord to provide for the more
favorable terms. It is intended that Rent for the Extension Premises for the
period prior to April 1, 2005 not be reduced by operation of this Section. This
Lease shall be amended to reflect the more favorable terms under the following
conditions:
A. Only leases to a Major Tenant for an initial term of ten (10) years or
more ("Qualifying Leases") shall be considered.
B. Amendments under this Section shall be made as of the commencement date
of each Qualifying Lease and shall be prospective only.
C. Landlord shall submit all Qualifying Leases to Tenant on a confidential
basis for review. At Tenant's request to Landlord, a certified public
accountant acceptable to both Landlord
57
and ▇▇▇▇▇▇ (the "Accountant") shall be directed, at equal cost to Landlord and
Tenant, to review all Qualifying Leases to evaluate the following economic
issues ("Comparison Matters");
(i) Base Rent;
(ii) Any other forms of rent, however characterized, including
adjustments to compensate for inflation, any management fees, stepped
adjustments and operating expenses and tax pass-throughs, whether on a
"net" basis or on a "base amount" or "base year" basis;
(iii) Tenant inducements, including but not limited to rent
abatements or concessions, construction allowances and equity
participations; and
(iv) Over-standard tenant services, including parking or storage
space.
D. The accountant shall derive projected net rental cost per RSF for such
Qualifying Lease based on such evaluation of Comparison Matters. The Accountant
shall then derive a projected net rental cost per RSF for Tenant under this
Lease for the term of the Qualifying Lease, using the same assumptions that were
used in evaluating the Qualifying Lease, including escalations in operating
expenses and taxes, value of equity participation, and discounted value of
money, but assuming a rental rate per RSF not less than that which would be
payable after April 1, 2005. The Accountant shall complete such analysis within
fifteen (15) business days after such direction. If such comparison discloses
that Tenant's net rental cost per RSF exceeds the net rental cost per RSF under
the Qualifying Lease, Tenant shall receive a reduction in costs or increase in
benefits adequate to eliminate such excess in a manner satisfactory to Landlord
and Tenant. If the parties do not agree on the different manner within thirty
(30) days after the Accountant determines such excess, the adjustment shall be
made to Base Rent hereunder. Any such adjustment shall only be effective during
the term of the Qualifying Lease. Landlord, in order to evaluate the effect of
a Qualifying Lease under this Paragraph, may submit the relevant terms of a
Qualifying Lease to Tenant prior to its execution. Tenant must then notify
Landlord in writing within ten (10) days after receipt of such terms if Tenant
reasonably believes such Qualifying Lease is at a net rental cost per RSF less
than Tenant's or Tenant will be deemed to have waived consideration of such
Qualifying Lease. If Tenant does notify Landlord of its belief, Landlord may
submit the Qualifying Lease for review by the Accountant as described above
prior to signing such Qualifying Lease. The Accountant's determination shall be
binding and conclusive on Landlord and Tenant whether made before or after a
Qualifying Lease is executed, so long as the terms outlined by Landlord do not
vary from those in the actual Qualifying Lease.
37. PEDESTRIAN BRIDGE. Tenant has constructed an enclosed pedestrian bridge
-----------------
pursuant to the terms of the Existing Lease, from the 7th floor of the Building
to the 5th floor of the building at ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ("50 ▇. ▇▇▇▇▇▇▇").
Tenant shall be responsible for installing all necessary Building systems in the
existing or any future bridge and for heating, cooling, insuring and maintaining
any bridge and for providing all necessary security. The bridge space shall not
be included in Rentable Area for any purpose under the Lease. At the end of the
Lease term by lapse
58
of time otherwise, Tenant shall at its sole expense remove each bridge in its
entirety and repair the floor in the Premises and walls to which it was
connected so that it is fully enclosed in like manner to the other floors.
Tenant shall, at its sole expense, maintain, repair or replace each pedestrian
bridge to keep it in safe operating condition. Provided that (i) Tenant complies
with the provisions of Section 8J of the Lease (except for Landlord's consent to
construction of a bridge, which consent is hereby given provided Tenant complies
with the provisions of this Section 37), (ii) the design of each such bridge is
formulated in consultation with the Building engineer and the Building
architect, (iii) the structural integrity of each such bridge is approved by the
Building engineer (which approval shall not be unreasonably withheld conditional
or delayed), and (iv) the aesthetics of each such bridge are approved by the
Building architect (which approval shall not be unreasonably withheld
conditioned or delayed), who may not specify glass as being aesthetically
required, Tenant shall have the right to construct, at its costs, additional
fully enclosed pedestrian bridges between a floor in the Premises and an
equivalent floor at ▇▇ ▇. ▇▇▇▇▇▇▇, or redesign or relocated existing bridges.
Landlord shall cooperate with Tenant in obtaining the necessary municipal and
governmental permits, licenses and consents that may be required in connection
with construction of said bridges.
38. MONUMENT SIGNAGE. During the Term of this Lease, as long as, Tenant
----------------
leases and occupies at least 25% of Rentable Area in the Building, Tenant may,
at its expense and subject to approvals and the requirements of applicable Laws,
and documents of record, (a) design and construct, a ground level monument sign
(the "Monument Sign") adjacent to the Building located on the Real Estate in a
size, design and location acceptable to both Landlord and Tenant (and approved
by the City of Chicago, if required by the City of Chicago), and (b) use the
Monument Sign solely for Tenant's name and logo to identify ▇▇▇▇▇▇'s occupancy
in the Building. If Tenant ever leases and occupies fewer than the required
percentage of Rentable Area in the Building, Tenant's rights with respect to the
Monument Sign shall thereupon expire and be without further force and effect.
Upon termination of Tenant's rights, Tenant shall remove all Tenant
identification, at Tenant's expense; otherwise, the Monument Sign shall remain
and Landlord may use or permit others to use the Monument Sign. Tenant shall
maintain and repair the Monument Sign in good and safe condition and in
compliance with all Laws. Tenant's insurance under Section 25 shall include the
Monument Sign.
39. LOBBY SIGNAGE. Tenant may, at its expense, install an identifying sign
-------------
("Lobby Sign") on the walls in the ground floor elevator lobbies for both the
Low-Rise and Lower Mid-Rise (as to the Lower Mid-Rise, only after existing
signage is removed, which Landlord covenants will occur, no later than September
1, 2002) elevator banks of a size, design and in a location approved by
Landlord, consistent with other lobby signage, solely for Tenant's name and
logo to identify ▇▇▇▇▇▇'s occupancy in the Building. Upon termination of the
Lease, Tenant shall, remove the Lobby Sign and restore the wall to its previous
condition.
40. RIGHTS PERSONAL TO TENANT. There are references in Section 4G and 47 of
-------------------------
this Lease to rights being personal to Tenant or The Northern Trust Company.
Such references mean that those rights may not be assigned, granted or
transferred by The Northern Trust Company and may not be exercised by any
sublessee or assignee, other than an Affiliate to whom this Lease is assigned.
Wherever in this Lease it is provided that Tenant must Lease and occupy
prescribed square
59
footage or Rentable Area, these requirements may be satisfied by Tenant or any
assignee which is entitled to exercise such right.
41. FIRST EXTENSION OPTION. Subject to the provisions hereinafter set forth,
----------------------
Landlord hereby grants to Tenant an option to extend the Term of this lease on
the same terms, conditions and provisions as contained in this Lease, except as
otherwise provided herein, for one period of five (5) years (the "First
Extension Period") after the expiration of the Term, which First Extension
Period shall commence on January 1, 2021 ("First Extension Period Commencement
Date") and end on December 31, 2025.
▇. ▇▇▇▇ option shall be exercisable by written notice from Tenant to
Landlord of Tenant's election to exercise said option given not later than the
date which is eighteen (18) months prior to the First Extension Period
Commencement Date. If ▇▇▇▇▇▇'s option is not so exercised, then except as
otherwise provided in Paragraph D of this Section 41, said option shall
thereunder expire.
B. Tenant may only exercise said option, and an exercise thereof shall
only be effective, if at the time of Tenant's exercise of said option and on the
First Extension Period Commencement Date this Lease is in full force and effect
and Tenant is not in Default in payment of Rent or any other monetary obligation
under this Lease.
C. Rent per square foot of Rentable Area of the Premises payable during
the First Extension Period with respect to all space included in the Premises as
of the First Extension Period Commencement Date shall be equal to ninety five
percent (95%) of the Market Rental Rate (as hereinafter defined in Section 43).
Landlord shall give Tenant written notice of the Market Rental Rate and the Rent
for the First Extension Period within thirty (30) days following written request
by ▇▇▇▇▇▇ made not earlier than twenty four (24) months prior to the First
Extension Period Commencement Date. If Tenant disagrees with ▇▇▇▇▇▇▇▇'s
determination, then Tenant shall notify Landlord as provided in Section 43C,
and such dispute shall be determined in accordance with the provisions of
Section 43C.
D. If for any reason other than Tenant's failure to timely request Market
Rental Rate or otherwise comply with provisions of this Section on a timely
basis, the arbitrators fail to arrive at a determination of Market Rental Rate
by a date which is 90 days prior to the date on which Tenant must elect to
exercise its option to extend the Term, then the date for Tenant's exercise of
its option and the Term shall be extended day for day by each day after such
90th day until such arbitrators' determination is made (but by not more than 90
days in the aggregate). No such extension shall affect the date on which the
First Extension Period is to end. Until determination of the Market Rental
Rate, Rent shall be payable for the limited extension period at a rate equal to
the greater of the last rate of Rent payable under the Lease and Tenant's
determination of Market Rental Rate. Once Market Rental Rate is determined, if
different from the rate theretofore paid by Tenant, it shall be payable
retroactive to the expiration of the Term at the Market Rental Rate, and the
parties shall promptly refund or pay the excess or difference as necessary. If
the option is exercised, the First Extension Period shall be deemed to have
commenced on the date stated in this Lease.
60
E. If Tenant has validly exercised said option, then once Rent has been
determined, Landlord and Tenant shall enter into a written supplement to this
lease confirming the Rent for the First Extension Period.
42. SECOND EXTENSION OPTION. Subject to the provisions hereinafter set forth,
-----------------------
Landlord hereby grants to Tenant an option to extend the Term of this Lease on
the same terms, conditions and provisions as contained in this Lease, except as
otherwise provided herein, but only if Tenant has previously exercised or
concurrently exercises its option to extend the Term for the First Extension
Period, for one period of five (5) years (the "Second Extension Period") after
the expiration of the First Extension Period, which Second Extension Period
shall commence on January 1, 2026 (the "Second Extension Period Commencement
Date") and end on December 31, 2030.
▇. ▇▇▇▇ option shall be exercisable by written notice from Tenant to
Landlord of Tenant's election to exercise said option given not later than the
date which is eighteen (18) months prior to the Second Extension Period
Commencement Date. If Tenant's option is not so exercised, then, except as
otherwise provided in Paragraph D of this Section 42, said option shall
thereupon expire.
B. Tenant may only exercise said option, and an exercise thereof shall
only be effective, if at the time of ▇▇▇▇▇▇'s exercise of said option and on the
Second Extension Period Commencement Date this Lease is in full force and effect
and Tenant is not in Default in payment of Rent or any other monetary obligation
under this Lease.
▇. ▇▇▇▇ per square foot of Rentable Area of the Premises payable during
the Second Extension Period with respect to all space included in the Premises
as of the Second Extension Period Commencement Date shall be equal to ninety
five percent (95%) of the Market Rental Rate (as hereinafter defined in Section
43). Landlord shall give Tenant written notice of the Market Rental Rate and
the Rent payable during the Second Extension Period within thirty (30) days
following written request by ▇▇▇▇▇▇ made not earlier than twenty one (21) months
prior to the Second Extension Period Commencement Date. If Tenant disagrees
with ▇▇▇▇▇▇▇▇'s determination, then Tenant shall notify Landlord as provided in
Section 43C, and such dispute shall be determined in accordance with the
provisions of Section 43C.
D. If for any reason other than Tenant's failure to timely request Market
Rental Rate or otherwise comply with provisions of this Section on a timely
basis, the arbitrators fail to arrive at a determination of Market Rental Rate
by a date which is 90 days prior to the date on which Tenant must elect to
exercise its option to extend the Term, then the date for Tenant's exercise of
its option and the Term shall be extended day for day by each day after such
90th day until such arbitrators' determination is made (but by not more than 90
days in the aggregate). No such extension shall affect the date on which the
Second Extension Period is to end. Until determination of the Market Rental
Rate, Rent shall be payable for the limited extension period at a rate equal to
the greater of the last rate of Rent payable under the Lease and Tenant's
determination of Market Rental Rate. Once Market Rental Rate is determined, if
different from the rate theretofore paid by Tenant, it shall be payable
retroactive to the expiration of the Term at the Market Rental Rate, and the
parties shall
61
promptly refund or pay the excess or difference as necessary. If the option is
exercised, the Second Extension Period shall be deemed to have commenced on the
date stated in this Lease.
E. If Tenant has validly exercised said option, then within thirty (30)
days after request by either party hereto, Landlord and Tenant shall enter into
a written amendment to this lease confirming the terms, conditions and
provisions applicable to the Second Extension Period as determined in accordance
herewith, with such revisions to the rental provisions of this lease as may be
necessary to conform such provisions to the new rental rate.
F. Tenant shall not have any option to extend the term of this lease
beyond the expiration of the Second Extension Period.
43. MARKET RATE. A. "Market Rental Rate" shall mean annual amount per
-----------
rentable square foot and other rental charges for the portion of the term in
question equivalent to the period for which the Market Rental Rate is being
determined beginning the first (1st) day of the subject period that a willing,
credit-worthy, non-equity tenant leasing space comparable to the space to be
leased would pay and a willing landlord of an office building comparable to the
Building in the Chicago central business district office market (the "Market")
would accept at arm's length. Appropriate consideration will be given to base
net rent, rent escalations, tenant concessions (e.g. free rent, tenant
improvements and other cash allowances), length of term, size and location of
the premises being leased, tenant improvement allowances, brokerage commissions
and other generally applicable terms and conditions prevailing for comparable
space in comparable buildings located in the Market, as evidenced by then
recently completed renewals, or new leases or similar expansion leases (in the
event of an expansion option), within the Market.
B. Base Rent shall consist of a fixed annual rent reduced to a net per
square foot amount which represents rent minus the total rental concessions
provided by the Landlord. When this Lease provides that Rent per square foot of
Rentable Area is equal to a percentage of the Market Rental Rate, such
percentage shall be applied only against the fixed net rental component of
Market Rental Rate (before deductions of allowances and abatements), and not
against other components (such as Tenant's Proportionate Share of Operating
Expenses).
C. If Tenant disagrees with Landlord's determination of Market Rental Rate
(which Tenant must do, if at all, in writing setting forth Tenant's
determination of Market Rental Rate within seven (7) days after notice of
Landlord's determination of Market Rental Rate) and if the parties cannot agree
on the Market Rental Rate within ten (10) days thereafter, then such dispute
shall be determined by arbitration as hereinafter provided. Landlord and Tenant
will each select an arbitrator within ten (10) days who shall be disinterested
and shall be a person that has been actively engaged in the development or
leasing of first-class office buildings in the downtown Chicago area or
otherwise knowledgeable about rental rates for a period not less than five (5)
years immediately preceding his or her appointment. The arbitrators so
appointed shall appoint a third arbitrator within ten (10) days after
appointment of the initial two arbitrators. If a party fails to select an
arbitrator or an arbitrator selected by a party fails to make a determination or
select a third arbitrator as required,
62
the Market Rental Rate determined by the other party shall be deemed the Market
Rental Rate. Landlord and Tenant shall each simultaneously submit to the
arbitrators a determination of Market Rental Rate. (If no submittal is made, the
parties shall be deemed to have submitted their original determinations.) The
arbitrators shall be directed to determine the Market Rental Rate within twenty
(20) days after the appointment of the third arbitrator; provided, however, that
in determining Market Rental Rate, the arbitrators shall select either
Landlord's estimate or Tenant's estimate of Market Rental Rate, and in no event
shall the arbitrators have the right (i) to average the Market Rental Rate
estimates submitted by Landlord or Tenant or (ii) to choose another number. The
decision of the arbitrators shall be in writing and in duplicating, one
counterpart thereof to be delivered to each of the parties who appointed them.
The arbitration shall be conducted in accordance with the rules of the American
Arbitration Association (or its successor) and applicable Illinois law, and a
decision of the majority of the arbitrators shall be binding, final and
conclusive on the parties. The fees of the arbitrators and the expenses incident
to the proceeding and the fees of respective counsel engaged by the parties and
the fees of expert witnesses and other witnesses called for by the parties shall
be paid by the losing party. If no determination is made prior to the date for
commencement of payment of rent for which Market Rental Rate must be determined,
then Landlord's determination shall be used until the arbitration is completed,
except as above provided. If a different Market Rental Rate is later determined,
Landlord shall refund any overpayments to Tenant or Tenant shall pay any excess
owed in each instance promptly.
44. ELEVATOR TRANSFER. On or before December 31, 2001, Landlord will modify the
-----------------
Lower Mid-Rise elevators (accessing floors 17 through 27) in the Building so
that each elevator will stop on the 16th floor as a transfer floor for Tenant,
all at Landlord's expense. If Landlord fails to do so, then Tenant shall have
the following remedies; If transfers at such floor cannot be made by January 1,
2002, as such date may be extended due to Landlord's failure or inability to
complete the work due to causes or delays beyond Landlord's reasonable control,
then Rent shall ▇▇▇▇▇ for the Premises then located on floors 17 through 27. If
the required transfers at such floor cannot be made by January 1, 2003, as such
date may be extended due to Landlord's failure or inability to complete the work
due to causes or delays beyond Landlord's reasonable control, then Rent shall
▇▇▇▇▇ for the entire Premises. Any abatement provided for in this Section shall
continue only so long as all of such transfers cannot be made as required.
Tenant shall not have the right to terminate this Lease as a result of any
default by Landlord with respect to the work provided for in this Section. At
Landlord's request, Tenant shall confirm to Landlord that such transfer floor is
operational when such is the case.
45. CONTRACTION OPTION. Tenant shall have the right, exercisable by written
------------------
notice delivered to Landlord no later than fifteen (15) months prior to an
"Exclusion Date" shown below, to reduce the Premises in size by deleting one
full floor in the Building from the Premises as of the applicable Exclusion Date
("Contraction Option"), on the terms and conditions hereafter set forth. In the
case of each exercise of a Contraction Option, the floor to be deleted from the
Premises ("Excluded Premises") shall be a full floor which is not contiguous to
any other full floor of the Premises or which is at the top or bottom of a
contiguous stack of full floors in the Lower Mid-Rise elevator banks (floors 17-
27, both inclusive). Tenant's notice to Landlord shall identify the Excluded
Premises. The Contraction Option may be exercised up to three times.
63
--------------------------------------------------------------------------------
A. Exclusion Date Waived Expansion Option
-------------- -----------------------
--------------------------------------------------------------------------------
July 1, 2007 Second Expansion Option
--------------------------------------------------------------------------------
July 1, 2011 Third Expansion Option
--------------------------------------------------------------------------------
July 1, 2015 Fourth Expansion Option
--------------------------------------------------------------------------------
B. In the event that Tenant exercises a Contraction Option, the term of
this Lease shall terminate (except as otherwise provided herein) as to the
Excluded Premises as of the applicable Exclusion Date, as if the Lease had
expired by lapse of time, and the remainder of the Premises shall be the
Premises under this Lease ("Remainder Leased Premises").
▇. ▇▇▇▇▇▇ shall vacate and deliver possession of the Excluded Premises to
Landlord on the Exclusion Date in the manner set forth in Lease for surrender of
the Premises. Any retention of possession by Tenant of all or part of the
Excluded Premises after the Exclusion Date shall be deemed a holding over
without consent of Landlord, and shall be subject to the terms and conditions of
this Lease with respect to such retention of possession.
D. Effective as of the Exclusion Date, Rentable Area of the Premises, Base
Rent provided to be paid pursuant this Lease for the Excluded Premises and
Tenant's Proportionate Share, shall be reduced based upon the reduced square
footage of the Rentable Area of the Premises, as reasonably determined by
Landlord.
E. As a condition to the effective exercise of a Contraction Option,
Tenant shall pay Landlord a Contraction Fee (hereinafter defined), one-half of
which shall be paid on exercise of the Contraction Option and one-half no later
than one (1) month before the Exclusion Date. The "Contraction Fee" means an
amount equal to Rent which would be payable for the twelve months following the
Exclusion Date, consisting of Base Rent, Tenant's Proportionate Share of
Operating Expenses (based on the last amounts estimated by Landlord and being
paid by ▇▇▇▇▇▇ and latest available tax bills, in the case of Taxes where not
paid by Tenant on the basis of estimates), Special Tenant Fee (based on amounts
last payable by Tenant for such component of Rent), and any other component of
Rent which is not a component of Rent as of Commencement Date but which payable
under the Lease.
F. Any notice of exercise of a Contraction Option shall be irrevocable by
Tenant once given.
G. Tenant represents and warrants to Landlord that the following will be
true as of the date Tenant exercises its Contraction Option, that there exist no
subleases affecting the Excluded Premises which are not simultaneously being
terminated by Tenant as of the Exclusion Date.
64
▇. ▇▇▇▇▇▇ acknowledges that the Termination Fee constitutes a non-
refundable prepayment of rent, notwithstanding any subsequent leasing of the
Excluded Premises by Landlord.
I. Upon each exercise of a Contraction Option, Tenant thereby waives its
rights under Section 52 to lease as Expansion Space, the Expansion Space, the
Expansion Space Option identified in Section 45A opposite the applicable
Exclusion Date as a waived Expansion Option, and Landlord shall have no further
obligation to Tenant under Section 52 with respect to the identified herein as
the "Waived Expansion Option," Expansion Space.
46. RIGHT OF FIRST OFFER UPON SALE OF THE BUILDING.
----------------------------------------------
A. Offering of the Real Estate for Sale.
(i) In the event that, at any time during the Term of this Lease,
Landlord intends to sell the Property, Landlord shall deliver written notice of
its intention ("Notice of Intent") to Tenant in advance of any such offering,
including a copy of any proposed offering memorandum relative to the Property,
and a then current operating statement and rent roll.
(ii) Further, if prior to delivery of a Notice of Intent, Landlord
receives an unsolicited offer to purchase the Property and is considering
selling the Property to the offeror (or others) as a result of having received
such an offer, Landlord shall so notify Tenant ("Notice of Offer") and, in
advance of accepting such offer and stating the principal terms of the offer.
(iii) Tenant shall have a period of thirty (30) days following delivery
of the Notice of Intent or Notice of Offer to Tenant as the case may be within
which to advise Landlord by written notice ("Notice of Acceptance") that Tenant
is interesting in negotiating with Landlord for the purchase of the Property and
to negotiate and agree upon the basic terms of the purchase with Landlord in a
legally binding agreement ("Term Sheet").
(iv) If Tenant fails to deliver the Notice of Acceptance and execute a
Term Sheet within thirty (30) days following delivery of the Notice of Intent or
Notice of Offer, ▇▇▇▇▇▇'s rights shall terminate, and Landlord may offer the
Property for sale or accept any offer free of Tenant's rights under this Section
46.
B. The provisions set forth in this Section 46 shall not apply to a
proposed sale of the Property to any entity having a direct or indirect
ownership interest in Landlord, to a mortgagee of the Property having a
participating mortgage or similar right to share in profits derived from the
sale or refinancing of the Property (each such party being hereinafter referred
to as a "Participant"), to any entity controlled by, controlling or under common
control with any Participant, or to any sale or transfer between any of any
Participant, or any affiliates thereof." Further, the rights of Tenant and
restrictions set forth in this Section 46 shall also not apply to any initial
sale or transfer of the Property, Building or Real Estate pursuant to a mortgage
foreclosure sale of any mortgage encumbering the Property, Building or Real
Estate or any deed given in lieu of foreclosure thereof,
65
but shall thereafter apply to any transfer by the purchaser who took title at
said mortgage foreclosure sale including the holder of said mortgage or its
nominee who took title by virtue of said mortgage foreclosure sale or deed in
lieu of foreclosure thereof.
C. At Landlord's request, following waiver, expiration or termination of
Tenant's rights under this Section, Tenant shall execute an instrument in
recordable form confirming termination of its rights under this Section 46.
▇. ▇▇▇▇▇▇ acknowledges and agrees that notwithstanding the delivery of the
Notice of Intent or Notice of Offer by Landlord, the delivery of the Notice of
Acceptance by ▇▇▇▇▇▇, or the execution and delivery of a purchase and sale
agreement with respect to the Property, rent due under this Lease with respect
to the Property shall continue to accrue and be payable until such time, if any,
as the closing of the sale of the Property occurs.
▇. ▇▇▇▇▇▇'s rights under this Section 46 shall only apply so long as
Tenant or its Affiliates lease and occupy at least 25% of the Rentable Area of
the Building.
47. NAME OF THE BUILDING. As of the date of this Lease, Landlord does not
--------------------
intend to change the name of the Building from "▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇."
Landlord agrees not to hereafter grant to any Person the right to name the
Building for such Person (i.e., prominently identify the Building with a
particular name of such Person) by (a) installing prominent exterior signage at
the main entrance of the Building containing such other Person's name (other
than eyebrow signage for a ground floor retail tenant) and (b) referring to the
Building in marketing materials as the "XYZ" building" where "XYZ" is the name
of the other Person, without first offering to Tenant, on the same conditions,
the same rights to have the Building named for it. Further, ▇▇▇▇▇▇▇▇ agrees not
to grant to any Person the right to name the Building, if such Person does not
lease and occupy at least 25% of the Rentable Area of the Building. If Landlord
decides to offer such naming rights to Tenant, it shall give Tenant notice
thereof. If Tenant decides to exercise such rights, it shall do so by giving
Landlord notice thereof within fifteen (15) business days after Landlord's
notice of offer given to Tenant; if not exercised within said fifteen (15)
business day period, Tenant's rights under this Section 47 shall expire;
provided, however, if ▇▇▇▇▇▇▇▇ does not actually grant such rights to such
Person within one hundred eighty (180) days after expiration of Tenant's fifteen
(15) business day exercise period (or until consummation of the transaction
including the grant of such naming right, if longer), Tenant's rights shall
automatically be reinstated Tenant's right under this Section 47 to be offered
the rights to have the Building named for it, and any future naming right
granted to Tenant, is personal to The Northern Trust Company and to any
Affiliate to whom this Lease has been assigned and only applies at any time that
Tenant itself (or an Affiliate), occupies not less than 25% of the Rentable Area
of the Building; provided, however, if The Northern Trust Company has subleased
space to an Affiliate, it may designate the Affiliates, it may designate the
Affiliate's name to be used in lieu of The Northern Trust Company (or other new
name, as provided above).
66
If Tenant ever leases and occupies fewer than the required number of square
feet of Rentable Area in the Building, Tenant's rights with respect to naming of
the Building shall thereupon expire and be without further force and effect.
In the case of any change of name due to ▇▇▇▇▇▇'s change of name where
Building identification will be changed as described above, or a termination of
Tenant's rights to have the Building named for it, or ▇▇▇▇▇▇'s election not to
thereafter have the Building named for it, Tenant will pay all actual costs and
expenses of physically changing the identification of the Building and
replacement of all marketing materials using Tenant's name.
If the Building is named for Tenant, then Tenant represents that it has the
right to use the name of the Tenant as the name of the Building. Landlord has
no obligation to use any of the aforesaid names if prevented by injunction or
other court order or decree from using such names.
48. PUT SPACE. Subject to the provisions hereinafter set forth, the space shown
---------
in the schedule below as "Put Space" shall be included in the Premises on a date
shown on the schedule set forth below (the "Put Space Commencement Date")
associated with such Put Space.
--------------------------------------------------------------------------------
Put Space Square Feet of Put Space Commencement Put Space Rent
--------- -------------- ---------------------- --------------
Rentable Area Date Commencement Date
------------- ---- -----------------
--------------------------------------------------------------------------------
25 21,804 9/1/2001 2/1/2002
--------------------------------------------------------------------------------
24 and 26 43,608 9/1/2002 2/1/2003
--------------------------------------------------------------------------------
Landlord may, for any reason, one or more times and on not less than 120 days'
notice to Tenant prior to a Put Space Commencement Date, substitute any of the
following floors for any floor included in the Put Space shown in the schedule
above: 17, 18, 19, and 22.
A. Effective as of each Put Space Commencement Date, the applicable Put
Space shall be included in the Premises, subject to all of the terms, conditions
and provisions of this Lease, except that:
(i) the Base Rent per square foot of Rentable Area of the Put Space
shall be $21.75, which shall commence on the applicable Put Space
Rent Commencement Date, subject to increase during the First
Extension Period and Second Extension Period as provided in this
Lease;
(ii) the Rentable Area of the Premises shall be increased by the
Rentable Area of the Put Space;
67
(iii) the term of the demise covering the Put Space shall commence on
the Put Space Commencement Date and shall expire simultaneously
with the expiration or earlier termination of the Term of this
Lease, including any extension or renewal thereof;
(iv) the Put Space shall be rented in its "as is" condition as of
the Put Space Commencement Date; provided, however, Landlord
agrees to contribute an allowance to Tenant of up to $35.00 per
square foot of Rentable Area of each Put Space (the " Put Space
Allowance") to be used to reimburse Tenant for (1) costs of
improvements (both hard and soft) and (2) for other costs of
Tenant not to exceed $5.00 per square foot of Rentable Area of
the applicable Put Space. The Put Space Allowance shall be paid
in one lump sum payment by Landlord to Tenant within ten (10)
business days following ▇▇▇▇▇▇'s submission to Landlord of a
contract or contracts evidencing that the cost of the work
performed and which has not been reimbursed by Landlord equals
or exceeds the amount of the Put Space Allowance. As the work
in the Put Space progresses, Tenant shall require and collect,
and submit copies to Landlord of, general contractor's
statements, architect certificates (as to substantial
completion of the stages of the Put Space work as payments are
being made therefor) and partial and final lien waivers, as the
case may be, covering all work (including design costs) for
which the Put Space Allowance is being used to pay costs
thereof. Tenant shall be responsible for collecting and
submitting to Landlord the final lien waivers from all
contractors, subcontractors and materialmen involved in the
work.
(v) Tenant's Proportionate Share of Operating Expenses owed on
account of such Put Space for the Calculation Year in which the
Put Space Commencement Date occurs shall be prorated based on
that portion of the Calculation Year which falls on and after
the Put Space Rent Commencement Date.
(vi) After April 1, 2002, provided that the Put Space Rent
Commencement Date has occurred, Tenant shall pay Special Tenant
Fee, for the Put Space being included in the Premises.
B. Landlord shall deliver possession of the Put Space on the applicable
Put Space Commencement Date; provided however, if Landlord should be unable for
any reason to deliver possession of the Put Space on the Put Space Commencement
Date, Landlord shall not be subject to any liability for failure to deliver
possession, except as hereinafter provided. Such failure to deliver possession
shall not affect either the validity of this lease or the obligations of either
Landlord or Tenant hereunder, or be construed to extend the expiration of the
Term of this lease either as to the Put Space or the balance of the Premises;
provided, however, that under such circumstances, (i) Landlord shall use good
faith efforts to deliver 120 days advance notice of the inability to deliver
possession on a timely basis, (ii) if the delay is not within Landlord's
reasonable control, the Put
68
Space Commencement Date shall be delayed until possession is delivered, and the
Put Space Rent Commencement Date shall be delayed by the number of days that the
Put Space Commencement Date was delayed, (iii) if the delay is caused by
Landlord, the Put Space Commencement Date shall be delayed until possession is
delivered, and the Put Space Rent Commencement Date shall be delayed by two
times the number of days that the Put Space Commencement Date was delayed, (iv)
if the delay was caused by the existing tenant, then in addition to the delay
described in clause (ii) above, Tenant shall be entitled to receive from
Landlord any penalty which Landlord may receive from the existing tenant on
account of its retention of possession in the Put Space beyond the date provided
in its lease for surrender of possession. If possession of the Put Space is not
delivered within 24 months after the Put Space Commencement Date, Tenant may, by
notice to Landlord within ten (10) days thereafter (but prior to delivery of
such space) terminate its lease of such Put Space.
C. In the event any Put Space is leased to Tenant as First Offer Space,
Rent for the period prior to the Put Space Commencement Date shall be at the
Market Rental Rate for such space and determined only with reference to the
period prior to the Put Space Commencement Date. After the Put Space
Commencement Date, Rent shall be payable at the rate applicable to Put Space,
and such space shall be deemed to be Put Space.
49. ALLOWANCE FOR EXTENSION PREMISES. Landlord agrees to contribute an
--------------------------------
allowance of up to $15.00 per square foot of Rentable Area of the Extension
Premises (the "Allowance") to reimburse Tenant for costs of improvements (both
hard and soft) previously made in the Premises and for which Landlord has not
previously reimbursed Tenant. The Allowance shall be paid in four installments,
the first three installments being in the amount of $4.00 per square foot of
Rentable Area, payable in the years 2003, 2004, and 2005, respectively, and the
fourth installment in the amount of $3.00 per square foot of Rentable Area of
the Extension Premises payable in 2006. Each installment shall be paid within
ten (10) business days following ▇▇▇▇▇▇'s request for payment, including
▇▇▇▇▇▇'s submission to Landlord of a contract or contracts evidencing that the
cost of the work performed and which has not been reimbursed by Landlord equals
or exceeds the amount of the Allowance. As work progresses, Tenant shall require
and collect, and submit to Landlord copies of, general contractor's statements,
architect certificates (as to substantial completion of the work) and final lien
waivers, covering all work (including design costs) for which the Allowance is
being used to pay costs. Tenant shall be responsible for collecting and
submitting to Landlord the final lien waivers from all contractors,
subcontractors and materialmen involved in the work.
50. TERMINATION OF EXISTING LEASE. Tenant is presently leasing and occupying
-----------------------------
the Existing Premises under the Existing Lease. The Existing Lease shall
terminate on the Commencement Date of this Lease ("Existing Lease Termination
Date"), as if such date were the stated expiration date of the term of the
Existing Lease, including all options to lease additional space or purchase the
Real Estate shall terminate on the Existing Lease Termination Date; provided,
however, Tenant and Landlord shall not be released from liability under the
Existing Lease accruing prior to termination of such Existing Lease.
69
A. ▇▇/▇▇/ Floor. The 23/rd/ Floor was included in the Premises under the
------------
Twelfth Amendment for a term ending March 31, 2005. Pursuant to such Twelfth
Amendment, Landlord was obligated to contribute certain sums toward work
being performed by Tenant on the 23/rd/ Floor. Landlord shall contribute (i) the
amounts required under the Twelfth Amendment (being $166,800.60) plus (ii) such
additional amounts (being $596,300) as are required to equal the total sum of
$763,140, less (iii) any amounts previously paid by Landlord under the Twelfth
Amendment, provided that Tenant complies with the conditions and requirements
set forth in Section 49 above necessary to receive an Allowance. The term of
lease of the 23/rd/ floor is hereby extended to be coterminous with the Term;
Base Rent for the 23/rd/ floor shall be payable at the applicable rate shown in
Exhibit H on and after the Commencement Date. Notwithstanding the date for
commencement of Rent for the 23/rd/ Floor under the Twelfth Amendment, Rent
shall commence on the date shown on Exhibit H.
B. 36/th/ Floor. The 36/th/ floor of the Building was leased to Tenant
------------
pursuant to the Ninth Amendment referred to in the Recitals and extended
pursuant to the Eleventh Amendment temporarily for a term expiring January 31,
2001 and, thereafter, on a month-to-month basis, subject to the parties' rights
hereinafter described. The parties have previously agreed and hereby confirm
that the Lease for the 36/th/ floor will expire February 28, 2001, without any
---
further extension. The 36/th/ Floor is included in the Premises under this Lease
only to and including such expiration date. Commencing February 1, 2001, either
party shall have the right to terminate the Lease, as to the 36/th/ Floor space
only, effective as of the last day of a given month, by written notice given to
the other party no later than the first (1/st/) day of said month. If such
notice is not given by the first (1/st/) day of a month, then the term of lease
of the 36/th/ floor shall be extended at least until the last day of such month
on the terms of this Lease. If such notice is given, the Lease shall terminate,
as to the 36/th/ floor, as of the last day of the relevant month, Tenant shall
surrender the 36/th/ floor in accordance with the terms of the Lease regarding
surrender of space, and neither party shall have any further liability with
respect to the 36/th/ floor, except for liabilities arising prior to such
termination date. Rent for such space shall be payable as set forth on Exhibit
H. As of the expiration of the lease of the 36/th/ floor, Tenant's Proportionate
Share shall be reduced to reflect expiration of the lease of the 36/th/ floor.
▇. ▇▇▇▇▇▇ represents and warrants to Landlord, with respect to ▇▇▇▇▇▇'s
right in and occupancy of the Existing Premises, that the following are true as
of the date hereof and will be true on the Existing Lease Termination Date:
(i) Tenant owns and holds the entire interest of Tenant under the
Existing Lease;
(ii) there exist no subleases affecting any of the Existing Premises;
(iii) Tenant has not assigned or encumbered Tenant's interest under the
Existing Lease or any part hereof; and
D. Unless the Commencement Date is January 1, 2001, then for the
Calculation Year in which the Commencement Date falls, (i) Tenant's
Proportionate Share of Operating Expenses shall
70
be payable without proration as provided in Section 4E, and (ii) Rent Adjustment
under Exhibit J shall be payable under this Lease without proration as provided
in Exhibit J and not as "Rent Adjustment" under the Existing Lease or prorated
under the Existing Lease.
51. RIGHT OF FIRST OFFER TO LEASE. Provided that Tenant has not theretofore
-----------------------------
leased such space, Tenant is not in Default under this Lease and this Lease is
in full force and effect from and after the Commencement Date, Tenant shall have
the option for and during the Term of this Lease, on and subject to the terms
and conditions hereinafter set forth, to lease all or any part of the space
which is located on floors 1 through 27, both inclusive, and floors 35 through
38, both inclusive, in the Building ("First Offer Space").
A. If, at any time and from time to time during the Term of this Lease, as
the same may be extended, any First Offer Space is or will be Available for
Lease (as hereinafter defined) then Landlord shall, before leasing such First
Offer Space, notify Tenant of the location and Rentable Area of First Offer
Space, a date for commencement of the term with respect to such portion of the
First Offer Space if leased by Tenant (the "First Offer Space Commencement
Date"), the term of lease of First Offer Space (if other than the balance of the
Term, as described in Section 51C below) and the Market Rental Rate for such
space as determined by Landlord for a term commencing on the First Offer Space
Commencement Date. Landlord may use the form of notice set forth on Exhibit O
or a similar form provided such form contains all the information set forth in
Exhibit O. The First Offer Space Commencement Date shall be no earlier than 120
days after the date of the First Offer Notice, and not later than fifteen (15)
months after the date of the First Offer Notice Tenant may not lease any
Expansion Space as First Offer Space when it would be also be available as
Expansion Space, unless Landlord otherwise agrees.
B. If Tenant disputes Landlord's determination of the Market Rental Rate
Tenant shall so notify Landlord as provided in Section 43 hereof and such
dispute shall be determined in accordance with the provisions of Section 43C
hereof. Tenant shall have the right to lease all, but not less than all, the
First Offer Space described in the First Offer Notice. Tenant's rights under
this Section 51 to lease First Offer Space shall not apply to any First Offer
Space whose First Offer Space Commencement Date would fall during the last year
of the Term, as extended. Tenant may, within twenty (20) business days after
its receipt of the First Offer Space Notice, elect to exercise its option to
lease such First Offer Space Available for Lease included in the First Offer
Space Notice, as of the First Offer Space Commencement Date and on the terms
set forth in the First Offer Space Notice or other terms agreed to by Tenant and
Landlord, or otherwise set forth in this Section.
C. First Offer Space shall be "Available for Lease" upon:
(i) the expiration of one tenant's Building Lease (as hereinafter
defined) of such portion of the First Offer Space, if such portion of the
First Offer Space is not then subject to a right or option to lease such
space granted in another Building Lease; or
71
(ii) if such portion of the First Offer Space is subject to a right
or option granted in another Building Lease (whether or not theretofore
exercised), but such First Offer Space shall be deemed Available for Lease
only for a term which expires on the date possession would be required to
be delivered to the tenant holding such option or right.
(iii) if such portion of the First Offer Space is subject to a right
or option granted in another Building Lease, which right or option is not
exercised, upon the later to occur of (1) the expiration of such right or
option unexercised and (2) the expiration of the Building Lease; or
(iv) if such portion of the First Offer Space is subject to a right
or option granted in another Building Lease, which option is exercised, the
expiration of the term of such other Building Lease or any later date on
which the term of the demise of such portion of the First Offer Space
created by the exercise of such right or option (including any renewals or
extensions thereof) expires; and
(v) the First Offer Space becoming vacant and there being no
Building Leases for such space or legal rights to possession held by
persons other than Landlord; or
(vi) circumstances described in Section 51E(iv).
D. The term "Building Lease" shall mean a lease of any space in the
Building in effect on the Commencement Date of this Lease is executed by
Landlord and Tenant, any lease in the Building created by exercise of an option
granted in a Building Lease, or any lease of space in the Building entered into
after Tenant failed to exercise its option to lease such space under this
Section.
E. If Tenant has validly exercised its option pursuant to this Section
51, then, effective as of the First Offer Space Commencement Date, provided that
this Lease is then in full force and effect, such First Offer Space which ▇▇▇▇▇▇
has elected to lease shall be included in the Premises, subject to all the
agreements, terms and conditions of this lease, with the following exceptions
and modifications:
(i) the Rentable Area of the Premises shall be increased by the
Rentable Area of First Offer Space which Tenant so leased during the term
of lease of First Offer Space;
(ii) the term of the demise covering such First Offer Space shall
commence on the First Offer Space Commencement Date for such First Offer
Space, and shall expire at the end of the Term, as extended, or such
earlier date as provided in Section 51C above.
(iii) the First Offer Space shall be leased in its "as is" condition
as of the First Offer Space Commencement Date, and Landlord shall have no
obligation to improve such space for Tenant's occupancy, unless the Market
Rental Rate includes as a component
72
thereof tenant improvement, specific base building condition of space or
any construction allowance. In such case, Landlord shall provide any
improvements. In any such case, Landlord shall furnish to Tenant a
construction allowance in lieu of providing any tenant improvement or
specific base building condition, which allowance shall be paid in the
manner set forth in Section 48A(iv) hereof (except for the dollar amount),
or other terms agreed to by Landlord and Tenant.
(a) the Rent for the First Offer Space shall be the rent set
forth in such First Offer Space Notice or as otherwise determined as
set forth in this Section, or if Landlord and Tenant have agreed to
other rent, then such other Rent agreed to by Landlord and ▇▇▇▇▇▇.
(b) If Tenant does not timely exercise its option to lease any
particular First Offer Space covered by a First Offer Space Notice,
then, except as hereinafter set forth in Section 53E(iv), Tenant
shall not have the right to lease that particular First Offer Space
under this Section 51 until and if it again becomes Available for
Lease.
(c) Upon the valid exercise by Tenant of its option to lease any
First Offer Space and determination of applicable Rent, at the request
of either party hereto, Landlord and Tenant shall enter into a written
supplement to this lease incorporating the terms, conditions and
provisions applicable to the First Offer Space so leased as determined
pursuant to this Section 51.
(iv) If Tenant does not timely exercise its option to lease any
particular First Offer Space, Landlord may lease such space to another
prospective tenant; provided, however, that if Landlord offers to lease
First Offer Space to such prospective tenant (other than pursuant to an
option to lease, such as right of first offer or expansion option) at a net
effective rental rate (calculated on a "level pay" method as shown on
Exhibit M) more than 15% below the net effective rental rate (calculated on
a "level pay" method as shown on Exhibit M) evidenced in the First Offer
Space Notice, then such space shall again be subject to the right to lease
granted to Tenant pursuant to Section 51A, requiring delivery of a First
Offer Space Notice. An increase in the length of term beyond the Term or
change in amounts being amortized through rent affecting calculation of the
net effective rental rate shall not constitute a reduction in rent
requiring delivery of a First Offer Space Notice and shall not be subject
to Tenant's rights under this Section 51E (iv).
F. Landlord shall deliver possession of the First Offer Space on the
First Offer Space Commencement Date. If Landlord is unable to deliver possession
of the First Offer Space by the First Offer Space Commencement Date, Landlord
shall not be subject to any liability for failure to deliver possession except
as hereinafter provided. Any such failure to deliver possession shall not affect
either the validity of this Lease or the other obligations of either Landlord or
Tenant hereunder except as hereinafter provided, or be construed to extend the
expiration of the term of this Lease either as
73
to the First Offer Space or the balance of the Premises; provided, however, the
applicable First Offer Space Commencement Date shall be delayed until Landlord
is able to deliver possession. If the delay in delivery of possession is more
than 90 days, and if such delay is not caused by the existing tenant or for
other reasons outside Landlord's control as set forth in Section 35D, then
Tenant shall have all remedies at law and equity (except Tenant shall not have
any right to terminate this Lease). Further, if Landlord is unable for any
reason to deliver possession of the First Offer Space within one year after
First Offer Commencement Date, Tenant by notice to Landlord, may elect to cancel
its obligation to take the First Offer Space in question.
52. EXPANSION SPACE. Subject to the provisions hereinafter set forth, Landlord
---------------
hereby grants to Tenant four separate options to lease, on the terms and
conditions hereinafter set forth, space ("Expansion Space") of a size and
location and on the dates as provided below.
A. The size and locations of Expansion Space and dates for commencement of
the lease of such Expansion Space ("Expansion Space Commencement Date") are
described in the chart below, which are identified serially as "First Expansion
Option", "Second Expansion Option", "Third Expansion Option" and "Fourth
Expansion Option", each of which may also be identified as an "Expansion
Option".
EXPANSION OPTIONS
-----------------
--------------------------------------------------------------------------------
Rentable Expansion Space
Expansion Space Area Commencement Date
--------------- ---- -----------------
--------------------------------------------------------------------------------
First 21/st/ Floor 11,876 November 1, 2005
Expansion Option
--------------------------------------------------------------------------------
Second 17/th/ Floor 21,227 February 1, 2008
Expansion Option
--------------------------------------------------------------------------------
Third 18/th/ Floor 20,848 November 1, 2012
Expansion Option
--------------------------------------------------------------------------------
Fourth 17/th/, 19/th/ Rentable Area for August 1, 2015
Expansion Option or 22/nd/ floor, such floor shown on
as selected by Exhibit B
Landlord
--------------------------------------------------------------------------------
(i) Expansion Space available under the First Expansion Option shall
be located on the 21st floor, unless the existing tenant on the 21st floor
exercises any option in its lease which would preclude the delivery of
possession to Tenant on the required date, in which case Landlord shall
select space on another floor in the Lower Mid-Rise, or if not available,
for the balance of the Term by the required Expansion Space Commencement
Date then in the Upper
74
Mid-Rise, of approximately the same Rentable Area (plus or minus 15%) to
substitute for the space on the 21st floor.
(ii) Expansion Space available under the Second Expansion Option
shall be located on the 17/th/ floor, unless the existing tenant on the
17/th/ floor exercises any option in its lease which would preclude the
delivery of possession to Tenant on the required date, in which case
Landlord shall select another floor (or if acceptable to Tenant, up to two
areas on two other floors) in the Lower Mid-Rise aggregating approximately
the same square footage as the 17/th/ floor, plus or minus 15%), or if not
available for the balance of the Term by the required Expansion Space
Commencement Date, then in the Upper Mid-Rise, of approximately the same
aggregate Rentable Area as the 17/th/ floor (plus or minus 15%) to
substitute for the space on the 17/th/ floor.
(iii) Landlord is not required to make any Expansion Space contiguous
to any other portion of the Premises.
(iv) Landlord shall notify Tenant no later than thirteen (13) months
in advance, of its selection of Expansion Space, if not set forth in this
Lease. If a floor in the Lower Mid-Rise has not been selected because it
would not be available by the required Expansion Space Commencement Date
("Unavailable Floor") (but would otherwise be available for the balance of
the Term), Landlord shall also notify Tenant of the date it would be
available. If Tenant is willing to delay the Expansion Space Commencement
Date until the date such space is available then Tenant shall notify
Landlord within thirty (30) days of its election to delay the Expansion
Space Commencement Date to the date the Expansion Space would be available
(but no such delay shall delay the time for exercise of the option under
Section 52B) and the Unavailable Floor shall become the Expansion Space.
B. Tenant's option to lease Expansion Space shall be exercisable by
written notice from Tenant to Landlord given not less than twelve (12) months
prior to the Expansion Space Commencement Date for such space. If Tenant's
option is not so exercised, said option shall thereupon terminate and Tenant
shall not thereafter have any right to lease any Expansion Space pursuant to
that Expansion Option.
C. Tenant may not elect to lease less than all Expansion Space in an
Expansion Option.
▇. ▇▇▇▇▇▇ may only exercise said option, and an exercise thereof shall
only be effective if, at the time of ▇▇▇▇▇▇'s exercise of said option and on the
Expansion Space Commencement Date, this Lease is in full force and effect and
Tenant is not in Default under this Lease.
E. Landlord shall give Tenant written notice of the rental rate for the
Expansion Space (determined as hereinafter provided) within thirty (30) days
after ▇▇▇▇▇▇'s request made no earlier than eighteen (18) months prior to the
applicable Expansion Space Commencement Date, but in no event later than sixteen
(16) months prior to the applicable Expansion Space Commencement Date.
75
If Tenant disagrees with ▇▇▇▇▇▇▇▇'s determination, then Tenant shall so notify
Landlord as provided in Section 43C , and such dispute shall be determined in
accordance with the provisions of Section 43C. If for any reason other than
Tenant's failure to timely request Market Rental Rate or otherwise comply with
provisions of this Section on a timely basis, the arbitrators fail to arrive at
a determination of Market Rental Rate by a date which is 60 days prior to the
date on which Tenant must elect to exercise its option to Lease Expansion Space
then the date for Tenant's exercise of its option shall be extended day for day
by each day after such 60th day until such arbitrators' determination is made
(but not extended more than 60 days in the aggregate). The Expansion Space
Commencement Date shall not be extended.
F. If Tenant has validly exercised its option to lease Expansion Space,
then effective as of the Expansion Space Commencement Date, the Expansion Space
which Tenant will Lease shall be included in the Premises, subject to all of the
terms, conditions and provisions of this lease, except that:
(i) Rent per square foot of Rentable Area shall be at the rate of
95% of the Market Rental Rate and shall commence five (5) months after the
applicable Expansion Space Commencement Date;
(ii) the Rentable Area of the Premises shall be increased by the
Rentable Area of the Expansion Space; and
(iii) the term of the demise covering the Expansion Space shall
commence on the Expansion Space Commencement Date and shall expire
simultaneously with the expiration or earlier termination of the Term of
this Lease, as extended;
(iv) the Expansion Space shall be leased in its "as is" condition as
of the Expansion Space Commencement Date, and Landlord shall have no
obligation to improve such space for Tenant's occupancy, unless the Market
Rental Rate includes as a component thereof tenant improvements, specific
base building condition or any construction allowance, in which case
Landlord shall furnish a construction allowance in lieu of providing any
tenant improvement or specific base building condition, which allowance to
Tenant shall be paid in the manner set forth in Section 48A(iv) (except
for the dollar amount) hereof.
(v) As a material consideration for this Lease, Landlord shall
deliver possession of the Expansion Space on the Expansion Space
Commencement Date. In the event Landlord should be unable for any reason to
deliver possession of Expansion Space on the applicable Expansion Space
Commencement Date, Landlord shall not be subject to any liability for
failure to deliver possession, except as hereinafter provided. Such failure
to deliver possession shall not affect either the validity of this Lease or
the obligations of either Landlord or Tenant hereunder, or be construed to
extend the expiration of the term of this Lease either as to the Expansion
Space or the balance of the Premises; provided, however, that (a) the
applicable Expansion Space Commencement Date shall be delayed until
Landlord is able to
76
deliver possession, (b) if the delay is more than 90 days, Tenant shall
have all remedies at law and equity (except Tenant shall not have any right
to terminate this Lease), (c) if the delay was caused by the existing
tenant, then Tenant shall be entitled to receive from Landlord any penalty
which Landlord receives from the existing tenant on account of its
retention of possession in the Expansion Space beyond the date provided in
its lease for surrender of possession, and (d) if the delay is more than 24
months, Tenant may, at its election, by notice to Landlord within ten (10)
days thereafter (but no later than delivery of such space), elect to
terminate its lease of the Expansion Space.
(vi) In the event any portion of Expansion Space consisting of
floors 17, 18, 19, 21 or 22 is leased to Tenant other than pursuant to this
Section or Section 48, such portion of Expansion Space shall thereupon be
deleted from the specific Expansion Space and the total amount of Expansion
Space (approximately 75,000) which Landlord is obligated to make available
and which Tenant may lease under this Section.
53. PARKING. During the Term, Tenant shall be entitled to have up to 13 cars
-------
parked (by valet [with Tenant's consent] or self-parking, at Landlord's option)
in the garage in the lower level of the Building in the location shown on
Exhibit Q, during the hours of 6:00 a.m. to 7:00 p.m. on weekdays and 7:00 a.m.
to 2:00 p.m. on Saturdays, so long as Tenant pays the parking charges in effect
from time to time (at monthly rates, if monthly rates are then being charged),
for the entire Term, subject to the terms and conditions, including parking
rules and regulations, applicable from time to time to parking in the garage.
Tenant shall pay parking charges for all parking provided for hereunder, whether
or not Tenant does, in fact, utilize such parking, except if Landlord or the
garage operator fails to provide such parking. If at any time Tenant elects not
to have 13 cars parked in the garage at any time, unless Tenant is paying for
such parking while not used, Tenant shall thereafter lose its rights to parking
of those number of cars for which spaces were not continuously paid, except as
hereinafter provided. Tenant shall be entitled to regain its right to park a car
if (a) it notifies Landlord 60 days in advance that it no longer requires use of
the right to park such car after such 60 day period but may require it in the
future and (b) notifies Landlord at least 60 days in advance of the date it
again requires such parking right. If at any time (i) a lease of space in the
Building terminates, and the tenant was entitled to park a certain number of
cars in the Building's parking garage pursuant to the terms of lease of that
space, and (ii) Tenant leases the same space in the building and that lease
commences within one month of the termination of the other tenant's lease, then
Landlord shall offer to Tenant, in a written notice, the additional right to
park that number of cars in the parking garage. If Tenant elects to use any or
all of such parking rights, it shall notify Landlord within seven (7) business
days after service of Landlord's notice, in which case Tenant shall have the
right to park such additional cars in the parking garage on the terms set forth
in this Section. Tenant not have the right to park any additional cars for which
Tenant does not notify Landlord as set forth above. Tenant and Landlord may
request the other party to confirm from time to time the number of cars which
Tenant may park in the parking garage. Payments for parking shall be the
responsibility of Tenant; Tenant (and not Landlord) shall be responsible for
collecting payments from any employees whom it permits to park in the building.
Particular spaces will not be reserved for Tenant, unless Landlord otherwise
agrees. Tenant shall not park automobiles overnight in the garage. Landlord
shall not be liable to
77
Tenant in damages or otherwise under any circumstances for failure to provide
parking if at any time Landlord or the garage operator is legally restricted
from operating a parking garage or providing parking in the lower level of the
Building or otherwise unable to do so for reasons beyond its reasonable control,
and in no event shall Tenant have any right to terminate this lease due to
Landlord's failure to make parking available as required under this Section.
54. BACK UP GENERATOR. Tenant has advised Landlord it may wish to install a
-----------------
back up generator in the Building to service the Premises. Landlord needs more
information about the generator, such as the type of generator, use, size, and
location, in order to assess whether any space can be made available in the
Building to Tenant for lease and the associated rent Landlord would require.
55. KITCHEN FACILITIES. Tenant agrees that any cafeteria or dining room
------------------
("Kitchen Facilities") shall be operated subject to the following restrictions
and conditions:
A. Tenant shall, at its sole cost and expense, provide the necessary
exhaust fans and systems, ductwork (but Landlord shall provide, at Tenant's
cost, base building vertical duct and roof fans) and venting to ensure that all
smoke, odors, vapors and steam are exhausted from the Kitchen Facilities. Such
systems shall be installed so as to prevent the discharge of smoke, odors,
vapors and steam into the common areas of the Building or into spaces leased to
other tenants.
B. No exhaust vents, flues, pipes or other outlets shall be installed
through the walls, floor or ceiling of the Premises or through any portion of
the Building (including but, not limited to the exterior walls or the roof of
the Building) without the written consent of Landlord as to the location,
construction and appearance thereof. Landlord may require that Tenant's exhaust
system be connected to pipes, stacks, flues, vents or other facilities located
outside the Premises and intended for use by Tenant and other food preparation
facilities in the Building. In such event, Tenant shall provide the necessary
pipes, vents, ductwork and other facilities to connect Tenant's exhaust system
thereto.
▇. ▇▇▇▇▇▇'s exhaust or venting systems shall include fire prevention and
extinguishment facilities or systems as may be reasonably required from time to
time in view of Tenant's methods and volume of cooking and other food and
beverage preparation. This shall be in addition to any sprinkler or other fire
protection facilities installed in the Premises.
D. Tenant shall regularly and adequately clean or provide for the cleaning
of all exhaust and venting systems serving the Premises. This cleaning shall
include decreasing of all hoods, fans, vents, pipes, flues, grease traps and
other areas of such systems subject to grease buildup. Tenant shall provide to
Landlord, upon demand, reasonable proof that Tenant is doing such cleaning and
decreasing or causing it to be done. In the event that Tenant shall refuse or
fail to clean and degrease such systems or to arrange for the cleaning and
decreasing of such systems, then Landlord may, after seven (7) days notice to
Tenant, arrange for the cleaning and decreasing thereof, and Tenant shall pay
78
the entire cost thereof plus a charge equal to ten percent (10%) of such cost as
an over-head and supervision fee.
E. Tenant shall, at its sole cost and expense, engage professional
exterminators to service the Kitchen Facilities, including but not limited to
all food preparation and, food storage areas, at such frequency and to the
extent necessary to keep the Kitchen Facilities and the Premises free of
insects, rodents, vermin and other pests and to prevent insects, rodents, vermin
and other pests from the Kitchen Facilities and the Premises infesting spaces
leased to other tenants or the common areas of the Building and the Land. Tenant
shall provide to Landlord, upon demand, reasonable proof that Tenant is causing
such exterminating to be regularly performed. In the event that Tenant shall
refuse or fail to have such exterminating regularly performed, then Landlord
may, after seven (7) days notice to ▇▇▇▇▇▇, arrange for such work to be done,
and Tenant shall pay the entire cost thereof plus a charge equal to ten percent
(10%) of such cost as an overhead and supervision fee.
F. Tenant shall receive the delivery of all goods and merchandise to the
Kitchen Facilities and the removal of all merchandise, supplies, equipment,
garbage and waste from the Kitchen Facilities only by way of the loading dock,
freight elevators and service corridors.
G. Tenant shall, at its sole cost and expense, comply with local fire
safety and building code requirements and with Landlord's requirements relating
to sanitation, extermination and waste disposal.
H. Tenant shall, at its sole cost and expense, remove all kitchen waste
from the Premises and have all such waste taken away from the Building on a
nightly basis.
IN WITNESS WHEREOF, this instrument has been duly executed by the parties
hereto, as of the date first above written.
LANDLORD: TENANT:
-------- ------
LASALLE BANK NATIONAL ASSOCIATION, not THE NORTHERN TRUST COMPANY,
individually but solely and only as an Illinois banking corporation
Trustee aforesaid
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------
Its: Vice President Its: Vice President
-------------------------------- -------------------------
79
EXHIBIT A
---------
Plan of Premises
----------------
The Premises consist of that areas shown on the floor plans affixed
(excluding from the foregoing any, if any: elevator shafts; flues; stacks;
pipes; shafts; vertical and horizontal ducts; pillars; demising walls;
electrical boxes; firehose cabinets; telephone closets; janitorial closets;
mechanical closets; and stairways) together with the right to use in common with
all other occupants of the Building, their invitees and the Landlord, the common
areas of the Building consisting of corridors, elevators and lobby for ingress
and egress to the Premises, washrooms and similar common facilities for their
intended purposes), all subject to the terms and provisions of the Lease.
--------------------------------------------------------------------------------
Floor(s) or Space Rentable Area
--------------------------------------------------------------------------------
4 16,491
--------------------------------------------------------------------------------
5 17,202
--------------------------------------------------------------------------------
6 21,227
--------------------------------------------------------------------------------
7 21,227
--------------------------------------------------------------------------------
8 21,227
--------------------------------------------------------------------------------
9 21,227
--------------------------------------------------------------------------------
10 21,227
--------------------------------------------------------------------------------
11 21,227
--------------------------------------------------------------------------------
12 21,227
--------------------------------------------------------------------------------
14 21,227
--------------------------------------------------------------------------------
Suite 1500 12,982
--------------------------------------------------------------------------------
Suite 1550 8,245
--------------------------------------------------------------------------------
Suite 1600 15,952
--------------------------------------------------------------------------------
20 21,804
--------------------------------------------------------------------------------
23 21,804
--------------------------------------------------------------------------------
36 20,866
--------------------------------------------------------------------------------
Total 305,162
--------------------------------------------------------------------------------
Total without 36 284,296
--------------------------------------------------------------------------------
A-1
EXHIBIT B
---------
Rentable Area
-------------
38 20,866 square feet
-----------------------------------------------------
37 20,866 square feet
-----------------------------------------------------
36 20,866 square feet
-----------------------------------------------------
35 20,866 square feet
-----------------------------------------------------
34 22,480 square feet
-----------------------------------------------------
33 22,480 square feet
-----------------------------------------------------
32 22,480 square feet
-----------------------------------------------------
31 22,480 square feet
-----------------------------------------------------
30 22,480 square feet
-----------------------------------------------------
29 21,453 square feet
-----------------------------------------------------
28 21,844 square feet
-----------------------------------------------------
27 21,844 square feet
-----------------------------------------------------
26 21,720 square feet
-----------------------------------------------------
25 21,804 square feet
-----------------------------------------------------
24 21,804 square feet
-----------------------------------------------------
23 21,804 square feet
-----------------------------------------------------
22 21,804 square feet
-----------------------------------------------------
21 21,804 square feet
-----------------------------------------------------
20 21,804 square feet
-----------------------------------------------------
19 21,645 square feet
-----------------------------------------------------
18 20,848 square feet
-----------------------------------------------------
17 21,227 square feet
-----------------------------------------------------
16 20,852 square feet
-----------------------------------------------------
15 21,227 square feet
-----------------------------------------------------
B-2
14 21,227 square feet
-----------------------------------------------------
12 21,227 square feet
-----------------------------------------------------
11 21,227 square feet
-----------------------------------------------------
10 21,227 square feet
-----------------------------------------------------
9 21,227 square feet
-----------------------------------------------------
8 21,227 square feet
-----------------------------------------------------
7 21,227 square feet
-----------------------------------------------------
6 21,227 square feet
-----------------------------------------------------
5 17,202 square feet
-----------------------------------------------------
4 16,491 square feet
-----------------------------------------------------
B-3
EXHIBIT C
---------
Rules and Regulations
---------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CHICAGO, ILLINOIS
1. Removal Permit. Tenant shall list all furniture, equipment and similar
--------------
articles Tenant desires to remove from the Premises or the Building and deliver
a copy to Landlord and procure a removal permit from the Rental Agent
authorizing Building employees to permit such articles to be removed.
2. Doors To Be Locked. Before leaving the Premises unattended, Tenant
------------------
shall close and securely lock all doors and transoms and shut off all utilities
in the Premises. Any damage resulting from failure to do so shall be paid by
▇▇▇▇▇▇.
3. Signs. Except as provided in the Lease, Tenant shall not paint,
-----
display, inscribe or affix any sign, trademark, picture, advertising, notice,
lettering or direction on any part of the outside or inside of the Building, or
on the Premises, except on the public hallway doors of the Premises, and then
only such name or names or matter and of such color, size, style, character and
material as shall be first approved by Landlord in writing. Landlord reserves
the right to remove any other matter, without notice to Tenant and at the cost
and expense of Tenant.
4. Sound Devices. Tenant shall not place any radio or television antenna
-------------
on the roof or on or in any part of the inside or outside of the Building other
than the inside of the Premises, or operate or permit to be operated any musical
or sound producing instrument or device inside or outside the Premises which may
be heard outside the Premises, or operate any electrical device from which may
emanate electrical waves which may interfere with or impair radio or television
broadcasting or reception from or in the Building or elsewhere.
5. Cleanliness And Obstruction of Public Areas. Tenant shall not place
-------------------------------------------
anything or allow anything to be placed near the glass of any door, partition,
or window which may be unsightly from outside the Premises; or take or permit to
be taken in or out of other entrances of the Building, or take or permit on
other elevators, any item normally taken in or out through the trucking
concourse or service doors or in or on freight elevators; or, whether
temporarily, accidentally, or otherwise, allow anything to remain in, place or
store anything in, or obstruct in any way, any passageway, exit, stairway,
elevator, shipping platform, or truck concourse. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and move all supplies, furniture and equipment as soon as
received directly to the Premises and move all such items and waste, other than
waste customarily removed by employees of the Building, being taken from the
Premises, directly to the shipping platform at or about the time arranged for
removal therefrom.
C-1
6. Additional Locks. Tenant shall not attach or permit to be attached
----------------
additional locks or similar devices to any door, transom or window; or change
existing locks or the mechanism thereof; or make or permit to be made any keys
for any door other than those provided by Landlord. (If more than two keys for
one lock are desired, Landlord will provide them upon payment therefor by
Tenant.)
7. Defacing Premises. Except as provided in the Lease, Tenant shall not
-----------------
do any painting or decorating in the Premises; or mark, paint, cut or drill
into, drive nails or screws into, or in any way deface any part of the Premises
or the Building, outside or inside, without the prior written consent of
Landlord. (If Tenant desires signal, communication, alarm or other utility or
service connections installed or changed, the same shall be made by and at the
expense of Tenant, with the approval and under direction of Landlord.)
8. Special Freight Elevator Service for Tenant. Upon written application
-------------------------------------------
by Tenant, and approval thereof by Landlord, Landlord shall furnish freight
elevator service for Tenant at times other than those times provided for in the
Lease at rates for such usage from time to time maintained in effect by
Landlord.
9. Emergency Procedures. Tenant shall appoint a floor warden from
--------------------
Tenant's organization who shall be responsible for educating Tenant's employees
in the proper fire evacuation procedures and the scheduling and conducting of at
least one (1) fire drill per year for Tenant's employees who normally occupy the
Tenant's Premises in the Building. The Tenant shall notify the Office of the
Building of the date and time of ▇▇▇▇▇▇'s scheduled fire evacuation drill.
C-2
EXHIBIT D
---------
Cleaning Specifications - ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
I. GENERAL TENANT FLOORS
A. Daily Service
-------------
1. Empty and damp wipe ashtrays and trash cans and dispose of at
locations on loading dock.
2. Dust all horizontal surfaces, desks, chairs, files, telephones,
picture frames, etc.
3. Damp wash and wipe dry all plastic or formica desk tops and glass
furniture tops.
4. Clean and sanitize drinking fountains, follow with stainless
steel cleaners.
5. Spot clean all windows and partition glass, including lobby
doors, door frames, around light switches, private entrance
glass, pictures, wall decorations and handrails.
6. Dust mop and spot clean all tiled areas.
7. Vacuum all carpeted areas and remove gum, tar, etc., adhering to
the floor.
8. Clean restrooms (sinks, toilets, urinals, etc.) with germicides.
Clean and polish all mirrors, chrome plumbing fixtures, etc. All
partitions and tiled walls to be spot cleaned.
9. Damp clean all directory signage and tenant name signs.
10. Report immediately any graffiti marks which cannot be removed.
11. Damp dust all telephones, as needed.
12. Wash waste receptacles, as needed.
13. Dust and wash wooden doors, as needed.
D-1
B. Services as Required at an Additional Cost to Tenant
----------------------------------------------------
1. Spot clean carpeted areas.
2. Wash window ▇▇▇▇▇.
3. Shampoo carpets.
4. Dust walls and spot wash.
5. Dust ceilings and vinyl base.
II. GENERAL BUILDING
A. Elevators
---------
1. Clean light lenses and replace burned out bulbs.
2. Spot clean walls.
3. Use paste wax or appropriate treatment on finished metal.
4. Clean edges, corners and tracks.
5. Vacuum carpet and remove gum, tar, etc. adhering to floors.
6. Shampoo carpet, as necessary.
7. As necessary, dust ceiling.
8. Damp clean elevator doors and call buttons.
B. Lobby
-----
1. Machine scrub lobby floor using only Ivory Liquid soap with water
2. Clean all class entrance ways and side panels.
3. Empty all ash urns.
4. Spot clean marble walls, mailboxes, security desk, etc.
D-2
5. Dust all horizontal ledges.
6. Damp clean elevator doors and call buttons.
C. Day Crew - Services
-------------------
1. Police and replenish supplies in all women's restrooms, to include
sanitary supplies.
2. Vacuum all passenger elevators twice each day - once before lunch
and once after.
3. Clean all ash urns twice each day.
4. Clean all glass entrance doors in main lobby.
5. Dust mop and/or damp mop all marble floors in main lobby once each
day, as well as granite plaza area.
6. One utility man to clean service area, hallway and dock area.
7. Supply toilet tissue, soap and towels in mens' and ladies'
restrooms.
8. There will be a constant surveillance of public areas to insure
cleanliness.
D. Weekly Services
---------------
Stairways
---------
1. Sweep from top to bottom using oil base sweeping compound.
2. Dust handrails and ledges.
3. Dust lights between floors.
4. Dust walls and spot wash.
Tile Floors
-----------
1. Damp mop all tile floors.
2. Machine buff all tile floors.
Marble Floors
-------------
1. Spray buff all public areas or as needed.
D-3
E. Monthly Services
----------------
Marble Floors, Etc.
-------------------
1. Repair all traffic lanes and other "high wear" areas of
marble floors.
2. Vacuum all louvers, ventilating grills and dust light
fixtures in restrooms.
3. Wash and polish walls, partitions and enamel surfaces from
trim to floor in restrooms.
4. Thoroughly dust ceilings.
F. Quarterly Services
------------------
Ceramic Tile Floors, Etc.
-------------------------
1. Strip and re-coat all tile floors.
2. Dust and wash lights.
3. Dust shelving in empty closets and dry mop/vacuum floors.
4. Dust all vertical surfaces such as: walls, partitions, door
bucks and other surfaces above shoulder height.
5. Damp dust all ceiling AC diffusers, wall grills, registers
and other ventilating louvers.
G. Annual Services
---------------
General
-------
Wash down all restroom walls and partitions.
Windows
-------
Clean all exterior windows minimum of three times per year.
D-4
EXHIBIT E
---------
Tenant Lease Estoppel Certificate
---------------------------------
LANDLORD:
TENANT:
TENANT TRADE NAME:
PREMISES:
AREA: __________________ Sq. Ft.
LEASE DATE:
The undersigned Tenant, as the tenant under the above-referenced lease (as
amended, modified, supplemented, extended, renewed or assigned, as set forth in
Paragraph 1 below, the "Lease"), hereby ratifies the Lease and certifies to
Lender, as mortgagee of the building in which the Leased Premises are located
(the "Building"), as follows:
1. The Lease is a valid lease and in full force and effect, and represents the
entire agreement between Landlord and Tenant. The Lease has (check one):
( ___ ) Not been amended, modified, supplemented, extended, renewed or
assigned.
( ___ ) Not been amended, modified, supplemented, extended, renewed or
assigned, except by the following agreements:
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
2. The Lease provides for an initial term of ________________ years, _________
months. The term of the Lease commenced (or is anticipated to commence) on
_______________, 19___, and will end on _________, ______. Tenant is in
full and complete possession of the Premises demised under the Lease and
has commenced full occupancy and use of the Premises, such possession
having been delivered by Landlord and having been accepted by Tenant.
E-1
3. The Lease (check one):
( ___ ) Does not contain an option to extend or renew the term thereof, or
for any additional term or terms.
( ___ ) Contains one or more options for _________ additional term(s) of
___________ year(s) and _____________ month(s) (each) at a rate to
be determined as follows:
See Sections __ of the Lease
__________________________________________________________
__________________________________________________________
__________________________________________________________
4. The description above of the Premises and Area is accurate.
5. The Lease provides for monthly Base Rent installments of $____________.
Tenant has commenced payment of monthly installments of Rent in the amount
of $________________.
6. No advance rental or other payment has been made in connection with the
Lease, except rental for the current month, there is no "free rent" or
other concession under the remaining term of the Lease and the Rent has
been paid to and including ______________________, 19___.
7. A security deposit in the amount of $ ________________ is being held by
Landlord, which amount is not subject to any set-off or reduction or to any
increase for interest or other credit due to Tenant.
8. To the knowledge of Tenant, all obligations and conditions under the Lease
(including construction obligations) to be performed or satisfied to date
by Landlord have been performed or satisfied.
9. Landlord (to ▇▇▇▇▇▇'s knowledge) is not in default, nor is Tenant in
Default of any of the terms and conditions of the Lease and no event to
Tenant's knowledge has occurred which, with the giving of notice or mere
passage of time, or both, would constitute an event of default thereunder.
▇▇▇▇▇▇ has no claims, demands or causes of action against Landlord arising
out of the Lease or ▇▇▇▇▇▇'s occupancy of the Leased Premises.
E-2
10. Tenant has received no rent concessions or other inducements to execute the
Lease which have not been fulfilled, except as follows:
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
11. The Lease contains no options for Tenant to terminate the Lease (except on
Landlord's default) or to expand or contract the Leased Premises, or any
rights of first refusal, except as follows:
12. Tenant has not exercised (or given Landlord any notice of its intent to
exercise) any option or right of first refusal set forth in Paragraph 11
above, except as follows:
__________________________________________________________
__________________________________________________________
__________________________________________________________
__________________________________________________________
13. Landlord has not rebated, reduced or waived any amounts due from Tenant
under the Lease, either orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of
Tenant.
14. There are no actions, voluntary or involuntary (to Tenant's knowledge),
pending against the Tenant under the bankruptcy laws of the United States
or any state thereof.
15. Tenant has not used or disposed of and will not use or dispose of,
hazardous materials at the Leased Premises in violation of any
environmental law, rule, regulation or ordinance at any time applicable to
the Building or the Premises.
16. Tenant has dealt with no brokers other than ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Management Corporation and _____________________________________________ in
connection with the Lease.
17. The address for notices to Tenant, as stated in the Lease, is correct.
18. Tenant is presently using _______________ parking spaces in the Building.
19. The person executing this estoppel certificate on behalf of Tenant is duly
authorized to do so.
20. Tenant understands and acknowledges that ▇▇▇▇▇▇ is relying upon the
representations herein made.
E-3
IN WITNESS WHEREOF, the undersigned has executed this Tenant Lease Estoppel
Certificate as of the ____ day of ____________, 200_.
TENANT:
------
________________________________,
a_______________________________
By:_____________________________
Typed Name:_____________________
Title:__________________________
Date:___________________________
ATTEST:
________________________________
Typed Name:_____________________
Title:__________________________
E-4
EXHIBIT F
---------
Legal Description
-----------------
PARCEL 1:
---------
SUB-LOTS 9, 10, 11 AND 12 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 95 IN
SCHOOL SECTION ADDITION TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14
EAST OF THE THIRD PRINCIPAL MERIDIAN, TOGETHER WITH THOSE PARTS OF THE ALLEYS
(VACATED IN PART BY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHICAGO ON
MARCH 27, 1905), LYING NORTH OF AND ADJOINING SAID SUB-LOT 9 AND EAST OF AND
ADJOINING SAID SUB-LOTS 9, 10, 11 AND 12 AND WHICH PARTS LIE SOUTH AND WEST OF
THE RESPECTIVE CENTERLINES, AND SAID CENTERLINES EXTENDED, ALSO THE NORTH HALF
OF THAT PART OF THE 18 FOOT ALLEY, LYING SOUTH OF AND ADJOINING SAID SUB-LOT 12,
AND SOUTH OF THAT PART OF THE ALLEY EAST OF AND ADJOINING SAID SUB-LOT 12, WHICH
LIES WEST OF THE CENTERLINE EXTENDED SOUTH, IN COOK COUNTY, ILLINOIS.
PARCEL 2:
---------
SUB-LOT 6 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 95 IN SCHOOL SECTION
ADDITION TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, TOGETHER WITH THE NORTH HALF OF THAT PART OF THE 10 FOOT
ALLEY WHICH LIES SOUTH OF AND ADJOINING SAID SUB-LOT 6, IN COOK COUNTY,
ILLINOIS.
PARCEL 3:
---------
SUB-LOTS 2, 3, 4 AND 5 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 95 IN SCHOOL
SECTION ADDITION TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, TOGETHER WITH THOSE PARTS OF THE ALLEYS, LYING
SOUTH OF AND ADJOINING SAID SUB-LOTS 3, 4 AND 5 AND WEST OF AND ADJOINING SAID
SUB-LOT 2, AND WHICH PARTS LIE NORTH AND EAST OF THE RESPECTIVE CENTERLINES AND
SAID CENTERLINES EXTENDED, ALSO THE NORTH HALF OF THAT PART OF THE 18 FOOT ALLEY
LYING SOUTH OF AND ADJOINING SAID SUB-LOT 2, AND SOUTH OF THAT PART OF THE ALLEY
WEST OF AND ADJOINING SAID SUB-LOT 2, WHICH LIES EAST OF THE CENTERLINE EXTENDED
SOUTH, IN COOK COUNTY, ILLINOIS.
F-1
PARCEL 4:
---------
SUB-LOT 1 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 95 IN SCHOOL SECTION
ADDITION TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, TOGETHER WITH THE NORTH HALF OF THAT PART OF THE 18 FOOT
ALLEY WHICH LIES SOUTH OF AND ADJOINING SAID SUB-LOT 1, IN COOK COUNTY,
ILLINOIS.
PARCEL 5:
---------
SUB-LOTS 7 AND 8 IN THE SUBDIVISION OF LOTS 1 AND 2 IN BLOCK 95 IN SCHOOL
SECTION ADDITION TO CHICAGO IN SECTION 16, TOWNSHIP 39 NORTH, RANGE 14 EAST OF
THE THIRD PRINCIPAL MERIDIAN, TOGETHER WITH THE NORTH HALF OF THAT PART OF THE
10 FOOT ALLEY WHICH LIES SOUTH OF AND ADJOINING SAID SUB-LOTS 7 AND 8, IN COOK
COUNTY, ILLINOIS.
TOGETHER WITH ALL RIGHT, TITLE AND INTEREST, IF ANY, IN THE STREETS ABUTTING THE
PROPERTY COMMONLY KNOWN AS WEST MADISON STREET AND SOUTH ▇▇▇▇▇ STREET.
STREET ADDRESS: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
PIN: 17-16-203-004-0000; 17-16-203-002-0000; 17-16-203-003-0000;
17-16-203-005-0000; 17-16-203-001-0000
F-2
EXHIBIT G
---------
["Intentionally Deleted"]
G-1
EXHIBIT H
---------
Base Rent
---------
---------------------------------------------------------------------------------------------------------
Definition Suite/ Rentable Base Rent Period Base Period
of Space Floor Area per RSF Rent per
(Square RSF
Feet)
---------------------------------------------------------------------------------------------------------
Extension 400 16,491 $10.38 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 500 17,202 $21.00 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 600 21,227 $21.00 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 700 21,227 $21.00 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 800 21,227 $21.00 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 900 21,227 $21.00 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1000 21,227 $25.50 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1100 21,227 $25.50 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1200 21,227 $25.50 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1400 21,227 $25.50 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1500 12,982 $25.50 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 1550 8,245 $10.50 11/1/00 - 3/14/01 21.75 4/1/05 - 12/31/2020
$18.25 3/15/01 - 3/14/02
$18.80 3/15/02 - 3/14/03
$19.36 3/15/03 - 3/14/04
$19.94 3/15/04 - 3/14/05
Extension 1600 15,952 $29.89 11/1/00 - 3/31/05 21.75 4/1/05 - 12/31/2020
Extension 2000 21,804 $21.00 11/1/00 - 4/30/01 21.75 4/1/05 - 12/31/2020
$21.63 5/1/01 - 4/30/02
$22.28 5/1/02 - 4/30/03
$22.95 5/1/03 - 4/30/04
$23.64 5/1/04 - 3/31/05
23rd Floor 2300 21,804 $21.75 1/1/01 - 12/31/2020
36th Floor 3600 20,866 $10.00 2/28/00
---------------------------------------------------------------------------------------------------------
H-1
EXHIBIT I
---------
Items to be Removed
-------------------
The following are items which Landlord may require Tenant to remove from the
Premises:
- Stairways
- Dumbwaiters or elevators
- Pneumatic systems
- Special fire suppression systems (except for existing [as of date of
this Lease] telecom room on the 6th floor)
- Raised flooring system
- Hard finish flooring surfaces which modify slab
- Equipment or fixtures permanently attached to the Premises or building
system (except existing [as of date of this Lease] card-reader system
and existing [as of date of this Lease] supplemental HVAC on 6th and
7th Floor training areas)
- Any brick or block partitions constructed using mortar or other
cementitious bonding materials.
- Vaults.
- Pedestrian bridge
- Items containing Hazardous Materials
I-1
EXHIBIT J
----------
Payment of Rent Adjustment
--------------------------
A. Definitions. For the purposes of this Exhibit, the following terms,
words or phrases shall have the following meanings and definitions.
(i) "Consumer Price Index" ("CPI") means the revised Consumer Price
Index for Urban Wage Earners and Clerical Workers, Chicago, All Items,
issued by the Bureau of Labor Statistics, United States Department of Labor
(1982-84=100). If the Bureau of Labor Statistics substantially revises the
manner in which the CPI is determined, an adjustment shall be made in the
revised index which would produce results equivalent, as nearly as
possible, to those which would be obtained if the CPI had not been so
revised. If the 1982-84 average shall no longer be used as an index of
100, such change shall constitute a substantial revision. If the CPI
becomes unavailable to the public because publication is discontinued, or
otherwise, Landlord and Tenant shall agree to substitute therefor a
comparable index based upon changes in the cost of living or purchasing
power of the consumer dollar published by any other governmental agency or,
if no such index is available, then a comparable index published by a major
bank, other financial institution, university or recognized financial
publication. As used herein, the CPI "for" any calendar month means the
CPI announced for such calendar month regardless of when the CPI for such
calendar month is announced or published.
(ii) "Rent Adjustment Deposits" means one-twelfth (1/12th) of the
amounts of the Rent Adjustments, if any, for the then current Lease Year as
Landlord shall reasonably estimate from time to time and communicate in
writing to Tenant (until such amount is determinable, and an appropriate
adjustment shall then be made).
(iii) "Rent Adjustment Termination Date" means March 31, 2005.
(iv) "Adjusted Annual Base Rent" means Base Rent as adjusted by the
Rent Adjustment made pursuant to this Exhibit J.
(v) "Incremental Rent Adjustment" means the portion of the Rent
Adjustment for the Subject Lease Year which is in excess of the Rent
Adjustment that was added to Base Rent the preceding Lease Year.
(vi) "Subject Lease Year" means the Lease Year for which Rent
Adjustment is being calculated.
B. Tenant shall pay for each Lease Year, to and including the Rent
Adjustment Termination Date, the following amounts ("Rent Adjustment"):
J-1
(i) an amount equal to $.90 per RSF plus thirty percent (30%) of the
product of (a) the Base Rent for the Extension Premises (except the 4/th/
floor and Suite 1600, Suite 1550 and the 20/th/ floor) plus $.90 per RSF,
multiplied by (b) the percentage change (positive or negative) of the CPI
for January of the Subject Lease Year over the CPI for the first full month
of 1990 (being 126.50); provided, however, that for any Lease Year the
Incremental Rent Adjustment shall not exceed three percent (3%) of the Base
Rent for the Extension Premises (except the 4/th/ floor and Suite 1600,
Suite 1550 and 20/th/ floor) for the immediately preceding Lease Year; and
(ii) with respect to Suite 1600, an amount equal to the product of
$29.89 per RSF, multiplied by 35% of the percentage increase (if any) of
the CPI for January of the Subject Lease Year over the CPI for the month of
January, 1996 (being 149.70) (collectively "Rent Adjustment").
Any abatement in Base Rent or Rent Adjustment provided by this Lease
shall be applied to reduce the amount due and owing by Tenant after the
amount of the Rent Adjustment for the Subject Year has been determined
without regard to any past or present abatements. Neither the calculation
of the amount of any Rent Adjustment nor the calculation of any limit on
the amount of the Rent Adjustment provided in this paragraph shall include
consideration of abatements in any component of the calculation;
No Rent Adjustment is payable for the 4/th/ floor, Suite 1550, the
20/th/ floor or 23/rd/ floor or 36th floor.
A sample calculation of Rent Adjustment (other than for Suite 1600) is
shown on Exhibit J-1.
C. Rent Adjustment Deposit - So long as Tenant is obligated to pay Rent
Adjustment, ▇▇▇▇▇▇ agrees to pay to the Rental Agent on the first day of each
and every month during the Term of this Lease the Rent Adjustment Deposit. The
Rent Adjustment Deposits shall be deposited against the Rent Adjustment due or
to become due for the Lease Year during which such deposits are required to be
made. All Rent Adjustment Deposits may be commingled and need not be segregated
by the Landlord or the Landlord's Rental Agent, and may be held and utilized by
the Landlord without payment to the Tenant of interest or any sums for the use
of any of said deposits. During the last Lease Year or during any partial Lease
Year during which this Lease terminates or Rent Adjustment obligation ends,
Landlord may include in Rent Adjustment Deposits its reasonable estimates of the
Rent Adjustment which may not finally be determined until after the expiration
or termination of this Lease.
D. Landlord's Statement - Payment of Rent Adjustment. Not later than one
hundred twenty (120) days after the expiration of each Lease Year, the Landlord
shall cause to be furnished to the Tenant a statement showing the following:
J-2
(i) CPI for the Calculation Year.
(ii) CPI for January 1990 and January 1996, as applicable.
(iii) The amount of Rent Adjustment due Landlord for the Calculation
Year, less credit for Rent Adjustment Deposits both paid by the
Tenant in and allocable to the said Calculation Year.
(iv) The Rent Adjustment Deposit due monthly as aforesaid during the
Lease Year next following the Calculation Year for which the statement is
given (subject to revision as aforesaid), including the amount or revised
amount for the months prior to the rendition of the statement.
Within fifteen (15) business days after the receipt of such statement, the
Tenant shall pay to the Rental Agent the amount of Rent Adjustment to the
Landlord for the Calculation Year, as reflected in said statement and the amount
of the Rent Adjustment Deposit due for the months between the expiration of the
Calculation Year described in the statement to and including the month in which
the statement is furnished. If such statement shall reflect an amount due from
the Landlord to the Tenant, the Landlord shall refund such amount to Tenant
within fifteen (15) business days after ▇▇▇▇▇▇'s receipt of such statement.
E. Allocation - Survival. If the Term ends or Rent Adjustment Termination
Date occurs on any day other than the last day of December, any Rent Adjustment
due Landlord or Tenant shall be prorated, and the Tenant shall pay such amount
within fifteen (15) business days after being billed or Landlord shall pay such
amount to Tenant within fifteen (15) business days after determining such
calculation, as the case may be. The Tenant's obligation and covenants to pay
the Rent Adjustment and the Rent Adjustment Deposits each and all independent of
every other covenant set forth in this Lease shall survive the expiration or
termination of this Lease.
Rent Adjustment shall not be prorated for the Lease Year in which the
Commencement Date falls, it being intended that such rent be paid as if the
obligation to pay Rent Adjustment for such Lease Year under this Lease commenced
January 1 of such year.
J-3
Exhibit J-1
Sample Calculation of Rent Adjustments
Year 1
(of the Existing Year 2 Year 3 Year 4
--------------- ------ ------ ------
Lease)
-----
A Annual Base Rent (amount used for example purposes only) $ 4,000,000.00 $ 4,000,000.00 $ 4,000,000.00 $ 4,000,000.00
B Rent Adjustment (exhibit J Para B) $ 200,000.00 $ 180,000.00 $ 180,000.00 $ 180,000.00
-----------------------------------------------------------
C Annual Base Rent + Rent Adjustment (Row A + Row B) $ 4,200,000.00 $ 4,180,000.00 $ 4,180,000.00 $ 4,180,000.00
D Base Year CPI 126.5 126.5 126.5 126.5
E Current Year CPI (assumed) 135 150 160
--------------------------------------------
F Change in CPI (Row E-Row D)/Row D 0.067 0.186 0.265
G Rent Adjustment (Base Year to Subject Year
30% x C x F) $ 84,018.00 $ 233,244.00 $ 332,310.00
Annual Rent Adjustment Calc.
H Incremental Rent Adjustments Subject Year G - Prior Year J $ 84,018.00 $ 149,226.00 $ 120,371.46
I Annual Cap Amount (3% of Prior Year Adj. Annual Base Rent) (3% x
Prior Year K) $ 126,000.00 $ 127,920.54 $ 131,758.16
Cap Application If H greater than I Cap Applies Cap Not Appl Cap Appls Cap Not Appls
--------------------------------------------
J Subject Lease Year Rent Adjustment If cap not Appl: G $ 84,018.00 $ 211,938.54 $ 332,310.00
If cap Applies: I plus Previous Year J
-----------------------------------------------------------
K Adjusted Annual Base Rent A+B+J $ 4,200,000.00 $ 4,264,018.00 $ 4,391,938.54 $ 4,512,310.00
===========================================================
J-1-1
EXHIBIT K
---------
Example of Calculation of Special Tenant Fee
--------------------------------------------
4% of Prior Tax and
Year Tax Expense
Annual & Expense Component Annual
Tax and Percentage Tax and Amount (Lesser of Special Tenant
Expense Increase Expense Cap (Prior Year Col D or Fee
Lease Amount per RSF (Note 1) (Col. C) Col A x 4%) Col C x 4%) Amount per RSF
Year (Col. A) (Col. B) (Prior Year X 1.03) Fiscal Year (Col D) Col. E (Col. F)
------------------------------------------------------------------------------------------------------------------------------------
2000 base year $16.43
2001 $16.84 2.50% $16.92
2002 $17.35 3.00% $17.43 4/1/2002-3/31/2003 $0.67 $0.67 $0.67
2003 $17.90 3.20% $17.95 4/1/2003-3/31/2004 $0.69 $0.69 $1.36
2004 $18.98 6.00% $18.49 4/1/2004-3/31/2005 $0.72 $0.72 $2.08
2005 $18.25 -3.82% $19.05 4/1/2005-3/31/2006 $0.76 $0.74 $2.82
2006 $18.84 3.25% $19.62 4/1/2006-3/31/2007 $0.73 $0.73 $3.55
2007 $19.50 3.50% $20.21 4/1/2007-3/31/2008 $0.75 $0.75 $4.30
4/1/2008-3/31/2009 $0.78 $0.78 $5.08
Note 1: The annual % increases illustrated is not intended to be
indicative of the future year Tax and Expense Amount %
increase, but have been derived for purposes of this example
only
Note 2: The year 2000 Tax and Expense amount of $16.43 represents an
estimate only
Note 3: The Amount shown are per RSF. These amounts must be multiplied
by the RSF of the Premises.
RSF = Rentable Square Feet
K-1
EXHIBIT L
---------
Stacking Plan
-------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan
------------------------------
Floor Net Rentable
----- ------------
49 13,163
48 13,163
47 17,397
46 17,397
45 17,397
44 17,397
43 17,397
42 20,466
41 20,466
40 20,505
39 20,866
38 20,866
37 20,866
36 20,866
35 20,866
34 22,480
33 22,480
32 22,480
31 22,480
30 22,480
29 21,453
28 21,844
27 21,844
26 21,804
25 21,804
24 21,804
23 21,804
22 21,804
21 21,804
20 21,804
19 21,645
18 20,848
17 21,227
L-1
16 20,852
15 21,227
14 21,227
12 21,227
11 21,227
10 21,227
09 21,227
08 21,227
07 21,227
06 21,227
05 17,202
04 16,491
------
Total Rentable Area 918,555 Square Feet
L-2
EXHIBIT M
---------
Level Pay
---------
The Level Pay Equivalent (LPE) is derived by discounting all elements of a
transaction's contracted and actual costs and cash flow back to the initial
investment date, at a pre-determined interest factor (resulting in a Net Present
Value, or NPV). The NPV is then amortized over the contract lease term,
utilizing the same interest factor. The initial month of the lease (in which the
Landlord's cash costs are theoretically incurred, unless stated otherwise) is
referred to as Month Zero (as costs are typically incurred prior to receiving
revenue), and each Lease Year of revenue is depicted in twelfths to properly
account for timing of monthly receipts. Correspondingly, the interest rate is
calculated on a monthly basis. Rental abatements (if any) are shown as a
negative cash flow in the year they occur.
An example of an LPE calculation for a hypothetical lease is on the
following spreadsheet titled Sample LPE Calculation. This sample is intended for
example purposes only, and should not be construed to represent any actual or
factual information.
M-1
Exhibit M
Sample LPE Calculation
-----------------------------
------------------------------------------------------------------------------
Sum of
Sum of Commission Misc
Base Rent, Construction Expenses Net
% Escn, and Lease (Legal, Total at
----------------------------------------------------
Fixed Escn, Assumption Architectural Beginning NPV LPE of Lease Assumptions for Sample Calculation
Month and CPI Expense Etc.) of Month 10% NPV10% ----------------------------------------------------
------------------------------------------------------------------------------
0 $0.00 ($20.00) ($1.00) ($21.00) Lease Term (Yrs) 5 Years
1 $2.08 $ 0.00 $0.00 $ 2.08 Net Base Rent $25.00 PSF
2 $2.08 $ 0.00 $0.00 $ 2.08 Annual Esculation 3.00% Per Year
3 $2.08 $ 0.00 $0.00 $ 2.08 Tenant Improvements $14.75 PSF
4 $2.08 $ 0.00 $0.00 $ 2.08 Legal Expense $0.50 PSF
5 $2.08 $ 0.00 $0.00 $ 2.08 Architectural Exp. $0.50 PSF
6 $2.08 $ 0.00 $0.00 $ 2.08 Commission $5.25 PSF
------------
7 $2.08 $ 0.00 $0.00 $ 2.08 Total Landlord Cost $21.00 PSF
----------------------------------------------------
8 $2.08 $ 0.00 $0.00 $ 2.08 Landlord Cash Flow Analysis
----------------------------------------------------
9 $2.08 $ 0.00 $0.00 $ 2.08 Total Landlord Cost ($ 21.00) PSF
10 $2.08 $ 0.00 $0.00 $ 2.08 Net Escl. Rent Year 1 $ 25.00 PSF
11 $2.08 $ 0.00 $0.00 $ 2.08 Net Escl. Rent Year 2 $ 25.75 PSF
12 $2.08 $ 0.00 $0.00 $ 2.08 $ 2.70 $ 2.85 Net Escl. Rent Year 3 $ 26.52 PSF
13 $2.15 $ 0.00 $0.00 $ 2.15 Net Escl. Rent Year 4 $ 27.32 PSF
14 $2.15 $ 0.00 $0.00 $ 2.15 Net Escl. Rent Year 5 $ 28.14 PSF
----------
15 $2.15 $ 0.00 $0.00 $ 2.15 Total Net Eff. Rent $111.73 PSF
----------------------------------------------------
16 $2.15 $ 0.00 $0.00 $ 2.15 Economic Analysis Summary
----------------------------------------------------
17 $2.15 $ 0.00 $0.00 $ 2.15 Return After NPV @10% LPE@ 10%
--------------------------------
18 $2.15 $ 0.00 $0.00 $ 2.15 Lease Year One $ 2.70 $ 2.85
19 $2.15 $ 0.00 $0.00 $ 2.15 Lease Year Two $24.79 $13.73
20 $2.15 $ 0.00 $0.00 $ 2.15 Lease Year Three $45.39 $17.58
21 $2.15 $ 0.00 $0.00 $ 2.15 Lease Year Four $64.60 $19.66
22 $2.16 $ 0.00 $0.00 $ 2.15 Lease Year Five $82.51 $21.04
23 $2.15 $ 0.00 $0.00 $ 2.15 ----------------------------------------------------
24 $2.15 $ 0.00 $0.00 $ 2.15 $24.79 $13.73
25 $2.21 $ 0.00 $0.00 $ 2.21
26 $2.21 $ 0.00 $0.00 $ 2.21
27 $2.21 $ 0.00 $0.00 $ 2.21
28 $2.21 $ 0.00 $0.00 $ 2.21
29 $2.21 $ 0.00 $0.00 $ 2.21
30 $2.21 $ 0.00 $0.00 $ 2.21
31 $2.21 $ 0.00 $0.00 $ 2.21
32 $2.21 $ 0.00 $0.00 $ 2.21
33 $2.21 $ 0.00 $0.00 $ 2.21
34 $2.21 $ 0.00 $0.00 $ 2.21
35 $2.21 $ 0.00 $0.00 $ 2.21
36 $2.21 $ 0.00 $0.00 $ 2.21 $45.39 $17.58
37 $2.28 $ 0.00 $0.00 $ 2.28
38 $2.28 $ 0.00 $0.00 $ 2.28
39 $2.28 $ 0.00 $0.00 $ 2.28
40 $2.28 $ 0.00 $0.00 $ 2.28
41 $2.28 $ 0.00 $0.00 $ 2.28
42 $2.28 $ 0.00 $0.00 $ 2.28
43 $2.28 $ 0.00 $0.00 $ 2.28
44 $2.28 $ 0.00 $0.00 $ 2.28
45 $2.28 $ 0.00 $0.00 $ 2.28
46 $2.28 $ 0.00 $0.00 $ 2.28
47 $2.28 $ 0.00 $0.00 $ 2.28
48 $2.28 $ 0.00 $0.00 $ 2.28 $64.60 $19.66
49 $2.34 $ 0.00 $0.00 $ 2.34
50 $2.34 $ 0.00 $0.00 $ 2.34
51 $2.34 $ 0.00 $0.00 $ 2.34
52 $2.34 $ 0.00 $0.00 $ 2.34
53 $2.34 $ 0.00 $0.00 $ 2.34
54 $2.34 $ 0.00 $0.00 $ 2.34
55 $2.34 $ 0.00 $0.00 $ 2.34
56 $2.34 $ 0 $0.00 $ 2.34
57 $2.34 $ 0.00 $0.00 $ 2.34
58 $2.34 $ 0.00 $0.00 $ 2.34
59 $2.34 $ 0.00 $0.00 $ 2.34
60 $2.34 $ 0.00 $0.00 $ 2.34 $82.51 $21.04
-----------------------------------------------
TOTALS $132.73 ($20.00) ($1.00) $11,173 NPV @ 10% LPE @ 10%
EXHIBIT N
---------
Short Form of Lease
-------------------
SHORT FORM OF LEASE
-------------------
This Short Form of Lease ("Short Form Lease") made as of the ________day of
__________________, 200__, by and between ____________, a _______ corporation
("Tenant"), and ____________________________________________________, a
_____________________________ company ("Landlord").
WITNESSETH:
1. Premises. Landlord hereby leases to Tenant, and Tenant leases from
--------
Landlord that certain premises (the "Premises") identified on Exhibit A hereto
in the building located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on a parcel of real property
("Real Property") lying, being and situate in Cook County, City of Chicago,
State of Illinois, which Real Property is particularly described on Exhibit B
attached hereto and made a part hereof, on the terms of the lease of the
Premises between Landlord and Tenant dated ________________.
THIS DOCUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ Address of Property:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
203 North LaSalle Street Chicago, IL
-----------------------
_______________________
Suite 1800 PIN:
Chicago, IL 60601-1293
N-1
2. Term and Renewal Options. The term of the Lease is for ________________
------------------------
( ) years, commencing. Tenant shall have two successive five-year options to
extend the term, on the terms and conditions set forth in the Lease.
3. Right to Lease Additional Space. Tenant shall have the rights to lease
-------------------------------
additional space in the Building as are set forth in the Lease.
4. Right of First Offer to Purchase the Building. Tenant shall have the
---------------------------------------------
right to purchase the Real Property on the terms set forth in the Lease.
5. Incorporation of Lease. This Short Form Lease is for informational
----------------------
purposes only and nothing contained herein shall be deemed to in any way modify
or otherwise affect any of the terms and conditions of the Lease, the terms of
which are incorporated herein by reference. This instrument is merely a
shortened form of the Lease and is subject to all of the terms, provisions and
conditions of the Lease. In the event of any inconsistency between the terms of
the Lease and this instrument, the terms of the Lease shall prevail.
6. Binding Effect. The rights and obligations set forth herein shall be
--------------
binding upon and inure to the benefit of the parties hereto and their respective
heirs, personal representatives, successors and assigns.
N-2
IN WITNESS WHEREOF, the parties have executed this Short Form of Lease
as of the day and year first above written.
LANDLORD:
____________________________________
a(n)________________________________
By:_________________________________
Print Name:_________________________
Print Title:________________________
TENANT:
________________ a______ corporation
____________________________________
By:_________________________________
Print Name:_________________________
Print Title:________________________
STATE OF____________)
) SS:
COUNTY OF___________)
I HEREBY CERTIFY that on this day before me, a Notary Public duly
authorized in the State and County named above to take acknowledgments,
personally appeared, ___________________, to me known to be the person described
as the _________________ of _________________, a ________, who signed the
foregoing instrument in such capacity, and acknowledged the execution thereof to
be his free act and deed as such person in such capacity for the uses and
purposes therein mentioned, and that the said instrument is the act and deed of
said _________________.
WITNESS my hand and official seal in the State and County last aforesaid
this ____ day of ______________, 2000.
_________________________________
Notary Public
State of_________________________
My Commission expires: __________
N-3
STATE OF __________ )
) SS:
COUNTY OF__________ )
I HEREBY CERTIFY that on this day before me, an officer duly authorized in the
state and county named above to take acknowledgments, personally appeared
______________ as Assistant Secretary of , a corporation, to me known to be the
person who signed the foregoing instrument as such officer and he acknowledged
that the execution thereof was his free act and deed as such officer for the use
and purposes therein expressed and that the instrument is the act and deed of
said corporation.
WITNESS my hand and official seal this _______ day of _____________, 2000 in the
county and state first above written.
___________________________________
Notary Public
State of___________________________
My Commission expires:_____________
N-4
EXHIBIT O
---------
Form of First Offer Notice
--------------------------
[LANDLORD LETTERHEAD]
[Date]
CERTIFIED MAIL, RETURN RECEIPT REQUESTED
----------------------------------------
[The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Corporate Real Estate]
Re: Lease dated ____________, 2000, by and between LaSalle Bank National
Association, as successor trustee to American National Bank and Trust Company of
Chicago, not individually, but solely and only as Trustee under Trust Agreement
dated April 5, 1990, and known as Trust Number 1105513-07, as Landlord, and The
Northern Trust Company, an Illinois banking corporation, as Tenant.
Pursuant to Section 51 of the Lease, Landlord hereby notifies you that the First
Offer Space described below is Available for Lease at the rent and on the
commencement date set forth below.
Location:
Floor Plan: ____ attached ____ not attached
Rentable Area:
First Offer Space Commencement Date (possession date):
Date for commencement of rent, if other
than First Offer Space Commencement Date:
Market Rental Rate:
Term of lease of First Offer Space to expire _________, because a right or
option to lease such space granted in another Building Lease described in
Section 51C (ii) or (iii).
O-1
Capitalized terms used in this letter have the meaning set forth in the
Lease.
Please respond within twenty (20) business days after receipt of this notice if
you elect to lease the First Offer Space.
Very truly yours,
[Landlord, or its agent]
______ Tenant hereby elects to lease the First Offer Space described above on
the terms of this First Offer Space Notice.
______ Tenant waives its right to lease First Offer Space described above on
the terms of this First Offer Space Notice, subject to reinstatement as provided
in Section 51(D)(iv).
[Name of Tenant]
By: _________________________
Name:____________________
Title:___________________
Date: _________________________
cc: The Northern Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
O-2
EXHIBIT P
---------
Landlord's Work
---------------
1) Work of Landlord specifically set forth in Section 14.
2) HVAC design specifications set forth in Section 7A.
3) Landlord's obligations with respect to ADA set forth in Section 29B.
4) Electrical design standards set forth in Section 10A.
P-1
EXHIBIT Q
---------
Parking Space Location
----------------------
(Map of Northern Trust Parking Spaces)
Q-1