EXHIBIT 2.2
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FORM OF
BUILDING LEASE
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LANDLORD: Towne Square Realty, L.L.C.,
-------- an Illinois Limited Liability Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TENANT: PrivateBank and Trust Company
------ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LEASED PREMISES: The First Floor of the building located on the property
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commonly known as ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
DATE: July _____, 1999
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BUILDING LEASE
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This BUILDING LEASE ("Lease") is entered into this ___ day of July, 1999,
by and between TOWNE SQUARE REALTY, L.L.C., an Illinois Limited Liability
Company (the "Landlord"), and PRIVATEBANK AND TRUST COMPANY, an Illinois state
banking corporation (the "Tenant") who hereby mutually covenant and agree as
follows:
ARTICLE 1. AGREEMENT TO LEASE.
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1.1 Grant. Landlord, for and in consideration of the Rents to be paid by
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Tenant herein and the covenants and agreements herein to be performed by Tenant,
hereby leases to Tenant, and Tenant hereby lets from Landlord, the following
described real estate and the improvements (including the existing structure)
located thereon from time to time (the "Leased Premises"):
The first floor (excluding any common area lobbies) as depicted on Exhibit
"A" attached hereto of the building located on the property commonly known
as ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of St. ▇▇▇▇▇▇▇, ▇▇▇▇ County,
Illinois (the "Property") and the use of the sidewalks, if any, and other
common facilities located on the Property in common with Landlord and other
tenants of the building. The use of the common area lobbies, building
entrance and stairways between the first floor and basement of the Property
shall be in common with the use by other building tenants and Landlord.
1.2 Quiet Enjoyment. Subject to the foregoing, Landlord covenants and
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agrees that so long as Tenant shall timely pay all Rents due to Landlord from
Tenant hereunder and keep, observe and perform all covenants, promises and
agreements on Tenant's part to be kept, observed and performed hereunder, Tenant
shall and may peacefully and quietly have, hold and occupy the Premises free of
any interference from Landlord; subject, however, to each of the terms,
provisions and conditions of this Lease.
Tenant acknowledges that the City of St. ▇▇▇▇▇▇▇ (the "City") contemplates
demolition of the building directly to the east of the Leased Premises and
further plans to construct a parking structure on the property to the east.
Tenant acknowledges that the City has the right to proceed with the demolition
work and that the City's performance of such work shall not constitute in any
way a breach of Landlord's obligations under this Lease. Landlord and Tenant
agree to work cooperatively with the City to permit the demolition and
construction work to be completed at no additional cost or expense to Tenant.
Landlord shall not be liable to Tenant in any way for the City's performance or
failure to perform the demolition or construction work.
ARTICLE 2. TERM.
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2.1 Term. The term of this Lease shall commence on August 1, 1999. That
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date shall hereinafter sometimes be referred to as "Commencement Date." In the
event this Lease is executed after August 1, 1999, the Commencement Date shall
be retroactive to August 1, 1999.
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This Lease shall have a Term of ten years and three months and shall end on
October 31, 2009 (unless sooner terminated as provided elsewhere in this Lease
or unless Tenant exercises its option to extend this Lease in accordance with
the terms of paragraph 2.2 herein). The date on which this Lease shall end
shall be sometimes referred to herein as the "Termination Date."
2.2 Options to Extend. On the condition that Tenant has faithfully
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performed all of its obligations under this Lease and cured any defaults within
the time periods provided herein, Tenant shall have the option to extend this
Lease for two consecutive additional five year periods beyond the Termination
Date. In order for Tenant to exercise the first option to extend, Tenant must
first give Landlord six (6) months' advanced written notice prior to the end of
the initial ten year Lease Term. In order to exercise the second five year
option, Tenant must give Landlord six (6) months advance written notice prior to
the end of the first extended Lease Term. In the event that Tenant fails to
give the requisite notice of its intent to exercise an option within the time
period provided herein, then Tenant's options to extend this Lease shall lapse
and become null and void. In the event that Tenant breaches and fails to cure
within the time periods provided herein any of its obligations under this Lease,
then Tenant's options to extend shall likewise lapse and become null and void.
In the event that Tenant's options lapse, Tenant shall, at Landlord's request,
execute any and all documents necessary to evidence the lapse of said options.
In the event that an option is exercised by Tenant, then all provisions of this
Lease shall remain in full force and effect through the Option Period, and Base
Rent during each successive 12-month lease period shall be increased at a rate
of 2.5% more than the prior 12 months' Base Rent.
ARTICLE 3. RENT
3.1 Rent. Each lease year throughout the Term, Tenant shall pay to
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Landlord, in lawful money of the United States of America, without any prior
demand by Landlord and without any deduction or set-off (except as otherwise
specifically permitted herein), as rent hereunder a combination of Base Rent and
Additional Rent (as those terms are hereinafter defined and described). All
such payments of Rent shall be made at the time, in the manner and in the
amounts hereinafter specified in this Article 3 by check payable to Landlord
mailed or delivered to Landlord at the address herein specified or to such other
person or at such other address as Landlord may hereafter designate by written
notice to Tenant.
All Rent shall be made to Landlord at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other individual or location as Landlord directs in
writing. Monthly Rent payments shall be paid in advance and shall be due on the
first day of each consecutive month. Each installment of Rent which is not paid
when due or within a ten (10) day grace period beyond any due date shall bear
interest at a rate of twelve percent (12%) per annum from the date when the same
is payable under the terms of this Lease until the same shall be paid.
3.2 Base Rent. During the first 15 months of this Agreement, Tenant
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shall pay to Landlord monthly Base Rent of $8,900.00. The monthly Base Rent for
each succeeding lease year (12 months) shall be increased to an amount equal to
the prior year's monthly Base Rent multiplied by 102.5%.
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3.3 Additional Rent. During each month of this Lease, Tenant shall pay
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to Landlord as Additional Rent, in advance, and simultaneously with each monthly
installment of Base Rent Tenant's pro rata share of the following attributable
to the Leased Premises:
A. Real Estate/Special Service Area Taxes. One-twelfth of
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Landlord's reasonable estimate of the annual general real estate or Special
Service Area taxes with respect to the Property which accrue for each year of
the Lease during the Lease Term (even though such taxes may not be payable
during the Lease Term). To the extent that Landlord's estimate is greater or
less than the actual real estate tax ▇▇▇▇, then the parties shall settle the
difference within 15 days of the issuance of the final tax ▇▇▇▇.
B. Special Assessments. One-twelfth of all special assessments for
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the Property which accrue for each year of the Lease or are imposed during the
Lease Term with respect to the Property.
C. Insurance. One-twelfth of the property and casualty insurance
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premiums paid by Landlord and attributable to the Property and all buildings and
improvements thereon. Such insurance shall be underwritten on a replacement cost
basis by companies having a Best's rating of A or better.
D. Common Area Maintenance/Utilities. One-twelfth of all common
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area maintenance expenses for the Property and the non-separately metered or
zoned utilities provided by Landlord to the Leased Premises. Common area
maintenance expenses shall include Landlord's expenses for repairs and
maintenance performed pursuant to Section 7.5.
For purposes of this Lease, Landlord and Tenant agree that 66.67% of all
general real estate taxes, special service area taxes, and special assessments,
Property in which the Leased Premises (i.e. ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ 60174) are located are attributable to the Leased Premises and 50.0% of
all insurance and common area maintenance expenses and non-separately metered or
zoned utilities are attributable to the Leased Premises.
In addition, all sums reasonably expended by Landlord (including reasonable
attorney's fees) in satisfying an obligation of Tenant under this Lease or in
enforcing the Terms of this Lease, together with all late fees due hereunder,
shall constitute Additional Rent.
ARTICLE 4. PURPOSE.
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4.1 Purpose. The Leased Premises shall be used and occupied by Tenant
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solely for the purpose of a bank or other similar financial institution or
general office use and for no other use without Landlord's consent, which shall
not be unreasonably withheld, delayed or conditioned. Tenant shall not use or
occupy the Leased Premises or permit the Leased Premises to be used or occupied
contrary to any statute, rule, order, ordinance, building code (including the
ADA), covenants, government regulations or in any manner which would violate the
Certificate of Occupancy relating to the Leased Premises. Tenant shall pay when
due all taxes (including
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sales and use taxes) arising out of Tenant's business operations. Furthermore,
Tenant shall not permit the Leased Premises to be used in such a way so as to
cause structural injury to the Leased Premises or the improvements located
thereon, to increase the rate of insurance thereon, or so as to cause a public
or private nuisance. Upon completion of Tenant's improvements Tenant shall open
for business on a continuous basis.
Tenant further agrees that it shall not use the Leased Premises or any
portion of the Property on which the Leased Premises is located for the burial,
dumping, storage, handling, transportation, treatment, use or disposal of any
contaminates, pollutants, oil or other petroleum products, toxic substances,
hazardous substances or hazardous wastes. The terms "hazardous substances" or
"hazardous wastes" shall be defined as those substances or materials regulated
under or described as hazardous in any applicable State or Federal environmental
laws or regulations.
4.2 Landlord agrees that it shall not lease the basement space in the
Property to any bank, savings bank, credit union or similar financial
institution, insurance broker or agent, securities or investment broker, or
person or entity who or which specializes primarily in investment management or
financial planning. Landlord may lease such basement space to a person or
entity who or which processes insurance claims or an accounting firm whose
primary business is providing accounting services.
ARTICLE 5. UTILITIES/LANDLORD'S SERVICES/TRASH REMOVAL/MONITORING.
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5.1 Utility Availability. Landlord represents and warrants that
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currently there is available for connection to the Leased Premises by Tenant
lines, pipes or conduits supplying electric power, natural gas, telephone,
cable, if available, potable water, and sanitary sewer utility services. Tenant
shall be responsible for any "tap on" or connection fees and deposits for the
use of said utilities at the Leased Premises. If additional or special utility
services are required for the conduct of the business contemplated by this Lease
to be operated and conducted by Tenant within and from the Leased Premises, the
cost thereof shall be borne by Tenant and shall be paid by Tenant to Landlord
prior to Tenant's occupancy of the Premises.
5.2 Utility Services. Tenant shall and hereby agrees to make all
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appropriate applications and arrangements for electric, telephone and cable, if
available, utility services required to serve the Leased Premises directly with
those utility companies providing such utilities and to pay all fees, changes
and deposits and for all meters required by such utility companies as a
condition to their providing such utility services to the Premises.
5.3 Payment for Utility Services. Tenant shall be solely liable and
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responsible for, and shall pay directly to such utility companies, all
separately metered or zoned bills for utility services including, without
limitation, electricity, telephone and cable, or any other utility provided by
them to and consumed and used on, at, in and from the Leased Premises, on or
before the date due, in accordance with the payment instructions contained in
such bills. After notice to Tenant and opportunity to cure as provided herein,
Landlord shall have the right to pay
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any past due bills and shall be entitled to assess any charges therefor to
Tenant as Additional Rent hereunder.
5.4 Interruption of Utility Services. Landlord shall have no liability or
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responsibility for any loss or damage occasioned by any interruption or failure
in the supply of any utility services to the Leased Premises or occasioned by
any required termination of such utility services necessary to effect repairs or
improvements or occasioned by any other cessation of such utility services for
any cause or reason other than any interruptions or failures wholly or partially
caused by the intentional or negligent acts or omissions of Landlord or its
employees, agents, contractors, licensees, guests or invitees. No such
interruption, termination or cessation of utility services shall relieve Tenant
of any of its duties and obligations pursuant to this Lease, including, without
limitation, its obligation to pay all Rents as and when the same shall be due.
If such service interruption is due to Landlord's failure to pay for any utility
or service furnished by Landlord hereunder, then after notice to Landlord and 5
days' opportunity to cure, Tenant may pay the amount necessary to restore such
service including, but not limited to, interest and penalties thereon. If Tenant
does so, Tenant may set-off the amounts so paid against the next installments of
Rent and Additional Rent due to Landlord hereunder.
5.5 Landlord's Services. During the term of this Lease, Landlord shall
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provide the following services to the extent not separately metered or zoned to
the Leased Premises.
A. Air cooling and heating as necessary to provide a temperature of
70F +/-2F (or such other temperature required by law or government regulation)
throughout the Leased Premises Monday through Friday from 8:00 a.m. to 6:00 p.m.
and Saturdays from 8:00 a.m. to 1:00 p.m., federal holidays excepted, and
B. Hot and cold water for use in lavatories and cold potable water
in other areas where water service is provided.
Landlord shall pay for such services and related sanitary sewer services and
shall charge Tenant its allocable (50%) share thereof as part of its common area
maintenance charges; provided however, that, until Landlord enters into its
initial lease of all or any portion of the basement space in the Property,
Tenant shall pay for all of such services allocable to the Leased Premises.
Tenant shall not pay for any portion of such services allocable to Landlord's
Work or any other user.
5.6 Trash Removal. Tenant shall remove trash and rubbish generated by
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Tenant in the ordinary course of the operation of Tenant's business in the
Leased Premises and shall store trash in containers provided or approved by
Landlord and stored in locations designated by Landlord. The cost of trash
removal shall be included in common area maintenance expenses, and Tenant shall
pay its allocable (50%) share thereof; provided however, that, until Landlord
enters into its initial lease of all or any portion of the basement space in the
Property, Tenant shall pay for all of such services allocable to the Leased
Premises. Tenant shall not pay for any portion of such services allocable to
Landlord's Work or any other use.
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5.7 Fire Monitoring. Landlord shall provide, or cause others to provide,
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monitoring of an automated fire detection system which is integrated into the
fire sprinkler system that is part of the Leased Premises, and Tenant's 50%
share of the reasonable cost therefor shall be paid by Tenant. Tenant
acknowledges that Landlord shall not, by virtue of having elected to provide
such service, be deemed to have accepted any responsibility or liability in the
event of any malfunction of the fire monitoring system or service or in the
event of any negligence of any party in the operation and monitoring of the fire
monitoring service, and Landlord shall not, by virtue of having elected to
provide such service, be liable for any damage, loss, injury, cost or expense
that may be sustained by Tenant as the result of any fire that may hereafter
occur in the Leased Premises or any alleged or actual failure of the fire
monitoring system to minimize any damage resulting therefrom.
ARTICLE 6. SIGNS AND SIGNAGE.
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6.1 Building Signage. Landlord agrees that Tenant shall, at its expense,
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be permitted to identify and advertise Tenant's business by the placement upon
the facade of the Building, such signs, symbols, words, names, logos, trademarks
or other identifying features, graphics or advertising materials (collectively,
"Signs") as are generally or customarily associated with Tenant, its business
and/or its products and services; provided, however, that any and all of such
Signs, and the number, size, color, arrangement, placement and location of the
same upon said Building shall be subject at all times to the prior written
consent and approval of Landlord which shall not be unreasonably withheld,
delayed or conditioned. Initially, matters of Building Signs for Tenant's
business shall be addressed in and included as part of Tenant's Plans and
Specifications and Landlord's consent to and approval of Tenant's Plans and
Specifications, to the extent that they shall address matters of Building Signs,
shall constitute Landlord's consent to and approval of those Building Signs
reflected therein. All such signage must also comply with applicable
governmental laws and ordinances. Tenant shall have the right to use up to two-
thirds of the space permitted for signage by the Village of St. ▇▇▇▇▇▇▇ and
shall have first choice of the face of the building on which such signage shall
be located, it being the intention of the parties that Tenant's signage be
"prominently" displayed.
6.2 Maintenance of Signage. Tenant shall and hereby agrees to keep and
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maintain any and all Signs erected, placed or installed by it upon the building
or within the Leased Premises as may be approved by Landlord, including, without
limitation, all mechanical and all electrical components thereof, in a neat,
clean and orderly fashion and in good condition and repair. All damaged Signs
and all burned out bulbs, tubes and lighting of any kind shall be promptly
repaired and replaced by Tenant, at its expense.
6.3 Removal of Signage. At the end of the Lease Term or earlier
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termination of this Lease, if requested by Landlord, Tenant shall, at its
expense remove all of its signs from the building and, upon removal thereof, at
its expense, repair any damage to the Leased Premises and said building
(including the facade thereof) caused by such removal.
6.4 Signage of Other Tenants. Subject to Section 6.1, Landlord shall have
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the right to designate portions of the building exterior for signs of other
building Tenants.
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ARTICLE 7. CONDITION, BUILD OUT AND UPKEEP OF LEASED PREMISES.
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7.1 Condition of Leased Premises. With the exception of Landlord's
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obligation to complete Landlord's Work as set forth in Section 7.2 and the
representations and warranties set forth below, Tenant certifies that it has
inspected the Leased Premises and accepts the Leased Premises in its existing
"AS-IS" condition. No other repair work, alterations or remodeling of the Leased
Premises is required to be done by Landlord as a condition of this Lease.
Landlord represents and warrants to Tenant that on the Commencement
Date and throughout the Term:
(a) The Property and all improvements thereon (except
interior improvements to the Leased Premises to be performed by
Tenant pursuant to Section 7.3) are or, upon completion of Landlord's
Work pursuant to Section 7.2, will be in compliance in all material
respects with all applicable federal, state, and local laws,
statutes, ordinances, rules and regulations including, but not
limited to, building codes, health, safety and environmental laws,
and the Americans With Disabilities Act as it pertains to space used
by the public (collectively "Applicable Laws"). After the date
hereof, Landlord shall not be responsible for compliance of the
Leased Premises with the preceding sentence or for any non-compliance
caused by Tenant or its agents or employees.
(b) The plumbing, electrical, heating, ventilating, air
conditioning and mechanical systems which connect to the Leased
Premises are or, upon completion of Landlord's work pursuant to
Section 7.2, will be in good working order and repair and adequate to
service the Leased Premises for the use contemplated herein subject
to completion of Tenant's Work (defined below).
(c) At all times during the term of this Lease, the roof,
foundation and structural members of the building on the Property
shall be in good working order and repair.
7.2 Landlord's Work. Landlord shall perform the following work
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("Landlord's Work") at its expense in a good and workmanlike manner, lien free,
using new, first-quality materials and experienced labor and in accordance with
applicable laws and plans and specifications therefor, copies of which have been
provided to Tenant. The interior work to be done by Landlord shall be
substantially completed on or before the Commencement Date. The exterior work to
be done by Landlord shall be substantially completed on or before October 31,
1999. Landlord shall perform Landlord's Work regardless of whether Landlord
obtains the facade grant described below.
1. Replace or repair the roof.
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2. Replace or repair all existing windows and doorways on the west
side of the building.
3. Replace or repair the HVAC mechanical units, excluding duct work,
and upgrade the fire monitoring system.
4. Replace or upgrade landscaping.
5. Paint exterior trim.
In the event Landlord does not substantially complete Landlord's Work on or
before the dates specified above, then after written notice to Landlord and 15
days' opportunity to cure, Tenant may complete Landlord's Work and deduct the
cost thereof plus a 15% administrative fee from the Rent and Additional Rent due
to Landlord hereunder until Tenant is fully reimbursed therefor.
Landlord has applied for and received preliminary approval for a facade
grant in the amount of $47,500.00 from the City of St. ▇▇▇▇▇▇▇ to help improve
portions of the exterior of the building on the Property. Landlord agrees to
use its best efforts to obtain the facade grant, and Tenant shall cooperate with
Landlord in attempting to obtain the grant at no cost to Tenant. The proceeds
of the grant shall be applied toward Landlord's work described in clause 7.2.2
hereof.
7.3 Tenant's Work.
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A. Tenant's Plans and Specifications. Not later than August 1,
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1999, Tenant shall submit to Landlord for its review and approval and, if
necessary, resubmit the same from time to time within fifteen (15) days after
receipt of written notice of disapproval thereof from Landlord, until the same
are approved by Landlord, detailed drawings and plans and specifications of and
for all interior and exterior improvements to be constructed and installed by
Tenant in the Leased Premises as Tenant's Work (as hereinafter defined),
including, without limitation, layout, lighting plan, interior finish and
material samples, typical display technique, if applicable, interior and
exterior signage plans and specifications, store front, and any work or
equipment to be done or installed by Tenant affecting any structural, mechanical
or electrical part of the Leased Premises, the building in which the Leased
Premises is located, and also showing all Trade Fixtures (as hereinafter
defined) to be installed therein by Tenant (the "Plans and Specifications").
Tenant's Plans and Specifications shall be prepared by a licensed architect or
other professional approved by Landlord. Tenant shall not commence the
construction and installation of any of Tenant's Work or Trade Fixtures unless
and until Landlord shall give its written consent and approval to Tenant's Plans
and Specifications, which consent shall not be unreasonably withheld, delayed or
conditioned. Landlord shall have fifteen (15) days after receipt of Tenant's
original or resubmitted Plans and Specifications to review and approve or
disapprove same. Any disapproval by Landlord shall set forth with specificity
the items or aspects of Tenant's Plans and Specifications which Landlord does
not approve. Upon receipt of Landlord's approval of Tenant's Plans and
Specifications, Tenant shall promptly thereafter, at its
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sole cost and expense, seek and obtain all necessary building permits and
governmental approvals required to enable Tenant to construct Tenant's work.
B. Commencement of Tenant's Work. Within a reasonable period of
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time following Tenant's receipt of written notice from Landlord approving
Tenant's Plans and Specifications, Tenant shall, at its expense, commence the
construction and installation to the interior of the Leased Premises of those
improvements including those more particularly listed and described on the
schedule of work to be accomplished by Tenant attached hereto as Exhibit B (the
"Tenant's Work"). Tenant shall use its commercially reasonable efforts to cause
all of Tenant's Work to be substantially completed and a certificate of
occupancy issued therefor and for the Leased Premises on or before December 31,
1999, subject to force majeure. Tenant warrants and represents to Landlord that
all such Tenant's Work will be performed in a good and workmanlike manner and in
conformance with all applicable laws, ordinances, requirements, orders,
directions, rules and regulations of all governmental authorities, and in
accordance with Tenant's Plans and Specifications. The contractor selected by
Tenant to perform Tenant's Work shall be approved by Landlord in writing prior
to commencement of construction, which approval shall not be unreasonably
withheld, delayed or conditioned. The construction contract to be executed by
Tenant and its contractor for Tenant's Work shall expressly provide that the
contractor shall be insured in amounts reasonably satisfactory to Landlord and
Tenant and shall name Landlord and Tenant as additional insureds. Tenant shall
provide evidence of such contractor's insurance to Landlord prior to commencing
Tenant's Work.
C. Trade Fixtures. Immediately following the completion of Tenant's
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Work in Section 7.3B above, Tenant shall cause to be installed within the Leased
Premises all trade fixtures reasonably required for the operation, as conducted
by Tenant, of the business contemplated by this Lease to be operated on, in, and
from the Leased Premises, including those trade fixtures, if any, contemplated,
shown and described on Tenant's Plans and Specifications (the "Trade Fixtures").
All Trade Fixtures so installed in the Leased Premises by Tenant shall be new
and of first-class quality and workmanship.
D. Landlord Not Bound. Landlord's approval of Tenant's Plans and
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Specifications shall not be construed as approval of the structural adequacy or
integrity of the work detailed therein or of the conformity of the same to
applicable building codes and other legal requirements; it being agreed that
Tenant shall indemnify and save and hold Landlord harmless from and against any
and all claims and liabilities arising therefrom. Any work which does not
substantially conform with the Plans and Specifications, if so required by
Landlord or by law, shall be removed or reconstructed by Tenant, at Tenant's
sole cost and expense.
E. Compliance With Laws. Prior to Tenant's opening for business,
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Landlord and Tenant shall perform an inspection of the Property and the Leased
Premises in order to determine that the same is in good order and repair and
that both Landlord's Work and Tenant's Work have been completed in substantial
compliance with the terms of this Lease and, as to Tenant's Work, the Plans and
Specifications. At the walk-through, Landlord and Tenant shall create a written
"Punch List" of items to be completed. The party responsible for a given Punch
List item agrees that the given Punch List item shall be completed as soon as is
reasonably
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practical following the walk-through but not later than 30 days after the date
of the walk-through, subject to force majeure. If a party fails to complete any
item in the time period set forth herein, then after notice and opportunity to
cure as provided herein, the other party shall be entitled to cause said items
to be completed and assess the cost thereof to the other party. With the
exception of the items set forth on the Punch List, Tenant agrees to accept the
Leased Premises as being in good order and repair.
F. Force Majeure. If Landlord or Tenant fails to timely perform any
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of the terms, covenants and conditions of this Lease on its part to be performed
and such failure is due in whole or in part to any strike, lockout, labor
trouble, civil disorder, inability to procure materials, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war, fuel
shortages, accidents, casualties, acts of God, acts caused directly or
indirectly by the other party (or the other party's agents, employees,
contractors, licensees or invitees) or any other cause beyond the reasonable
control of Landlord or Tenant, as the case may be, then such party shall not be
deemed in default under this Lease as a result of such failure, and any time for
performance provided herein shall be extended by the period of delay resulting
from such cause.
7.4 Landlord's and Tenant's Work. The parties acknowledge that Landlord
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is in discussion with the city of St. ▇▇▇▇▇▇▇ regarding modifications to the
northerly facade of the building in order to permit the construction of a new
main entrance to the Leased Premises and windows on the northerly facade. On
the condition that Landlord obtains City approval, Landlord agrees to construct
said new main entrance and windows in accordance with the standards for
Landlord's Work set forth above, and the cost thereof shall be shared by the
parties with the Tenant paying two-thirds of the cost and Landlord paying one-
third of the cost. The parties agree that Tenant's share of the cost shall not
exceed $75,000.00. Payment for the proportionate share of the costs shall be
due immediately upon completion of the work. Landlord shall furnish Tenant with
a separate ▇▇▇▇ and breakdown for expenses for this work.
7.5 Maintenance and Repairs by Landlord. During the term of this Lease,
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Landlord shall maintain, repair and replace, if necessary, the roof, the
exterior walls, the structural elements, and the exterior (exclusive of glass)
of the Leased Premises, all heating, air conditioning, ventilating, electrical,
mechanical, sprinkler and plumbing systems, equipment, machinery or fixtures
together with all pipes, conduits, ducts and drains servicing the Leased
Premises and other portions of the Property, and the remainder of the building
in which the Leased Premises are located including, without limitation, the
common areas of the building and the Property including, without limitation, the
sidewalks and landscaping, and keep the foregoing in a clean, sightly and
sanitary condition, free of snow, ice, debris, refuse, obstructions and hazards.
Landlord shall not, however, be responsible for maintaining or repairing any
window or window frames, doors, tracks and frames; pedestrian doors and frames;
exterior grills and ports for heating, ventilating and air conditioning units or
exhausts for inlets exclusively serving the Leased Premises. Notwithstanding
the foregoing, Landlord shall have no obligation to perform any maintenance or
repairs wholly or partially caused by the negligence or fault of Tenant or any
of its agents, visitors or licensees, or by Tenant's breach of any provision of
this Lease. Capitalized improvements to the Property shall not be deemed to be
common area maintenance.
11
Tenant agrees, on a timely basis, to provide Landlord with written notice
of the need for any repairs or maintenance of the type described above.
7.6 Maintenance and Repairs by Tenant. Tenant, at its expense, shall
---------------------------------
maintain and repair the interior of the Leased Premises, and all heating, air
conditioning, ventilating, electrical, mechanical, sprinkler and plumbing
systems, equipment, machinery or fixtures exclusively servicing the Leased
Premises, together with all pipes, conduits, ducts and drains therefor.
Furthermore Tenant, at its expense, shall replace any broken glass in the
interior or exterior of the Leased Premises, and shall maintain and repair all
entryway doors to the Leased Premises. Landlord shall assign to Tenant all
assignable manufacturers' warranties with respect to equipment and fixtures
installed in the Leased Premises.
Tenant further agrees to keep the Leased Premises in good, tenantable,
sanitary, sightly and clean condition and to keep all lobbies and entryways
which are part of the Leased Premises clean and free from debris, refuse,
obstructions or hazardous conditions. Tenant agrees to notify Landlord in the
event an excessive amount of snow accumulates on the roof of the Leased
Premises.
Tenant shall be responsible for all maintenance or repairs wholly or
partially (to the extent of Tenant's part) caused by the negligence or fault of
Tenant or any of its agents, visitors or licensees, or by Tenant's breach of any
provision of this Agreement.
If Tenant does not make the repairs or perform the maintenance required
hereunder in a prompt and adequate manner, then after notice to Tenant and
opportunity cure as provided herein, Landlord may make such repairs or perform
such maintenance and pay the costs thereof, and such costs shall be so much
Additional Rent which shall become immediately due and payable by Tenant to
Landlord.
7.7 Future Drive-Up Teller Facility. Landlord is currently in discussion
-------------------------------
with the City of St. ▇▇▇▇▇▇▇ in order to purchase or lease additional land to
the east of the Leased Premises to accommodate drive up teller lanes. If the
City makes said land available for purchase or lease as a drive up, then
Landlord shall submit a proposal to Tenant containing additional lease terms
(including additional rent and construction costs responsibilities) in relation
thereto. Tenant shall then decide whether or not to proceed with the
installation of the drive-up facility and to add such property to this Lease and
the Leased Premises described herein. Nothing contained herein shall obligate
Landlord to provide or make available a drive-up facility at any time during
this Lease and the failure to provide same shall not constitute a breach of
Landlord's obligations under this Lease.
7.8 Surrender of the Leased Premises. Upon the termination of this Lease
--------------------------------
whether by forfeiture, lapse of time, or otherwise, or upon the termination of
Tenant's rights to possession of the Leased Premises, Tenant will at once
surrender and deliver up to Landlord possession of the Leased Premises together
with all improvements thereon in good condition and repair, ordinary wear and
tear excepted. Said improvements shall include all plumbing, lighting,
electrical, heating, cooling and ventilating fixtures and equipment and other
articles of personal property
12
used in the operation of the Leased Premises (as distinguished from the Trade
Fixtures which are used in the operation of Tenant's business). All additions,
hardware, non-trade fixtures and improvements to the Leased Premises shall
become Landlord's property and shall remain upon the Leased Premises, without
compensation to Tenant, unless Landlord requests their removal in writing at the
time of approval of installation (if applicable). Upon termination of this
Lease, the Tenant agrees to deliver to Landlord all of the keys to the Leased
Premises.
The Tenant may remove Tenant's Trade Fixtures from the Leased Premises
provided, however, that Tenant shall repair any injury to or damage to the
Leased Premises caused by the removal of its Trade Fixtures. In the event that
Tenant fails to remove its Trade Fixtures, Landlord may, at its option, remove
the same and deliver the same to any other place of business of Tenant or
warehouse the same, and Tenant shall be responsible for paying the cost of said
removal, including the cost of repairing any damage to the Leased Premises
resulting from such removal, delivery and warehousing, to Landlord on demand.
7.9 Holding Over. Any holding over by Tenant of the Leased Premises after
------------
the expiration of this Lease shall operate and be construed to be a tenancy from
month to month only at the same monthly rate of rent and other charges payable
hereunder for the Lease Term. If the parties are not then engaged in bona fide
negotiations to renew or to extend the Lease, and if Tenant continues to hold
over after a written demand by Landlord for possession at the expiration of the
Lease Term or after termination by either party of a month-to-month tenancy
created pursuant to this paragraph, then Tenant shall pay Monthly Rent at a rate
equal to double the rate of Monthly Rent for the month immediately prior to the
hold over period. Nothing contained in this section shall be construed to give
Tenant a right to hold over at any time, and Landlord may exercise any and all
remedies at law or in equity to recover possession of the Leased Premises.
7.10 Mechanic's Liens. Tenant will not permit any mechanic's lien or liens
----------------
(other than those caused by the acts of Landlord) to be placed upon the Leased
Premises or the Real Property or any building or improvement thereon during the
term hereof, and in case of filing of any such lien, Tenant shall promptly pay
for or cause a title company to bond over same. Tenant shall have the right to
contest any such lien provided that Tenant pursues such contest diligently, such
contest does not result in the forfeiture of the Property, and Tenant posts
adequate security with a title company or Landlord therefor. If Tenant fails
promptly to pay for or bond over any such lien, Landlord, at its option, after
notice to Tenant and opportunity to cure as provided herein, may pay for said
lien, and any amounts so paid, including expenses and interest, shall become so
much Additional Rent hereunder due from Tenant to Landlord and shall be paid to
Landlord immediately.
7.11 Alterations. Tenant shall not make any material changes or structural
-----------
alterations to the Leased Premises, without first obtaining the Landlord's
written consent, which consent shall not be unreasonably withheld, delayed or
conditioned. Upon the completion of any such changes or alterations, Tenant
shall provide Landlord with such documents as Landlord may require (including,
without limitation, Sworn Contractor's Statements and supporting lien waivers)
evidencing payment in full for such work. Any such changes or alterations must
be made in accordance with applicable building codes or other governmental
regulations.
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ARTICLE 8. INSURANCE.
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As Additional Rent, Tenant shall procure and maintain, during the term of
this Lease, policies of insurance at Tenant's own cost and expense insuring the
following:
1. Landlord and Tenant from all claims, demands or actions for
injury to or death of any person in an amount of not less than
$3,000,000.00, for injury to or death of more than one person in any one
occurrence in an amount of not less than $3,000,000.00, and for damage to
property in an amount of not less then $1,000,000.00 made by, or on behalf
of, any person or persons, firm or corporation arising from, related to, or
connected with Tenant's use or occupancy of the Leased Premises.
2. Landlord and Tenant from all worker's compensation claims;
3. All contents, and all of Tenant's personal property and Trade
Fixtures, machinery, equipment and furniture and furnishings contained in
the Leased Premises to the extent of at least ninety percent (90%) of their
replacement cost under the standard fire and extended coverage insurance,
including without limitation to, vandalism and malicious mischief and
sprinkler leakage endorsements.
The aforesaid insurance shall be issued by companies and in form,
substance, and amount (where not stated above) reasonably satisfactory to
Landlord and any mortgagee of Landlord, and shall contain standard mortgage
clauses satisfactory to Landlord's mortgagee. Each such policy shall name
Landlord and its individual members as additional insureds. The aforesaid
insurance shall not be subject to cancellation except after at least thirty (30)
days prior written notice to Landlord and any mortgagee of Landlord. Duplicate
original policies (or certificates thereof satisfactory to Landlord) together
with satisfactory evidence of payment of the premiums thereon shall be deposited
with Landlord at the Commencement Date and renewals thereof not less than thirty
(30) days prior to the end of the term of such coverage. If Tenant fails to pay
the premiums on any of said insurance policies, then after ten (10) days' notice
to Tenant and opportunity to cure, Landlord may at its option pay said premiums,
and any payments made by Landlord shall constitute Additional Rent which shall
become immediately due and payable.
ARTICLE 9. INDEMNITY FOR ACCIDENTS.
-----------------------
Tenant covenants and agrees that it will protect and save and keep the
Landlord forever harmless and indemnified against any penalty or damages or
charges imposed for any violation of any laws or ordinances, or any civil claim
with respect to the Leased Premises which occurs during the Lease Term or any
holdover period, whether occasioned by the neglect of Tenant or those holding
under Tenant, but not for any actions or inactions of the Landlord or its
agents, servants, employees, contractors, licensees, guests, invitees or other
tenants. Pursuant to said obligation, Tenant will at all times protect,
indemnify and save and keep harmless the Landlord against and from any and all
loss, costs, damage or expense, including reasonable attorney's fees, arising
out of and from any accident or other occurrence on or about the Leased Premises
causing
14
injury to any person or property whomsoever or whatsoever and will protect,
indemnify, and save and keep harmless the Landlord against and from any and all
claims and against and from any and all loss, costs, damage or expense arising
out of any failure of Tenant in any respect to comply with and perform all of
the requirements and provisions hereof.
Likewise, Landlord covenants and agrees that it will protect and save
Tenant forever harmless and indemnified against any penalty or damages or
charges imposed as a result of any violation of any laws or ordinances or any
civil claim with respect to the Property (other than those with respect to the
Leased Premises), whether occasioned by Landlord's or its agents', servants',
employees', contractors', guests', or invitees' (excluding other tenants')
negligent or unlawful conduct or intentional acts or omissions other than such
guests' or invitees' criminal acts.
ARTICLE 10. FIRE AND CASUALTY.
-----------------
In the event that the Leased Premises shall be rendered substantially
untenantable or unsuitable for Tenant's purposes during the term of this Lease
by fire or other casualty, Landlord at its option may terminate this Lease
effective as of the date of such casualty or Landlord may elect to repair the
Leased Premises. If Landlord elects to repair this Lease will remain in effect
provided that such repairs are promptly commenced, diligently pursued and
completed in a timely manner but not more than 180 days after the date of the
fire or other casualty. If more than 40% of the Leased Premises is rendered
substantially untenantable or unsuitable by fire or casualty and Landlord does
not complete the repair and restoration thereof within said 180 days, then
Tenant may terminate this Lease effective as of the date of such fire or
casualty. If this Lease is terminated by reason of fire or casualty as herein
specified, monthly Base Rent and Additional Rent shall be apportioned and paid
to the day of such fire or other casualty. During any time period that the
Leased Premises is untenantable, rent will ▇▇▇▇▇ if the cause of the casualty is
not the result of Tenant's negligent acts or omissions.
Whenever (a) any loss, cost, damage or expense resulting from fire,
exploding or any other casualty or occurrence is incurred by either of the
parties to this Lease in connection with the Leased Premises, and (b) such party
is then covered in whole or in part by insurance with respect to such loss,
cost, damage or expense, then the party so insured hereby releases the other
party from any liability it may have on account of such loss, cost, damage or
expense to the extent of any amount recovered by reason of such insurance and
waives any right of subrogation which might otherwise exist in or accrue to any
person on account thereof, provided that such release of liability and waiver of
the right of subrogation shall not be operative in any case where the effect
thereof is to invalidate such insurance overage or increase the cost thereof.
ARTICLE 11. MISCELLANEOUS PROVISIONS.
------------------------
11.1 Subordination. This Lease is subordinate and shall be subordinate to
-------------
any and all mortgages which may now or hereafter affect the Leased Premises.
15
11.2 Assignment and Subletting. Tenant shall not, without Landlord's prior
-------------------------
written consent (which consent shall not be unreasonably withheld, delayed or
conditioned), assign, convey or mortgage this Lease or any interest in the
Leased Premises or sublet any and all or part of the Leased Premises.
Notwithstanding anything herein to the contrary, Tenant shall be permitted to
assign this Lease in whole, but not in part, to any parent, subsidiary or other
entity affiliated with Tenant or to any survivor of any merger or consolidation
with or reorganization of Tenant.
11.3 Abandonment and Reletting. If Tenant shall abandon or vacate the
-------------------------
Leased Premises, or if Tenant's right to occupy the Leased Premises shall be
terminated by Landlord by reason of Tenant's breach of any of the covenants
herein, the same may be relet by Landlord (acting reasonably) for such rent and
upon such terms as Landlord may deem fit, and if a sufficient sum shall not thus
be realized monthly, after paying expenses of such reletting and collecting to
satisfy the rent hereby reserved, Tenant agrees to satisfy and pay all
deficiencies monthly during the remaining term of this Lease.
11.4 Rights Reserved to Landlord. During the term of this Lease the
---------------------------
Landlord shall possess, the following rights:
1. Upon reasonable notice to Tenant, to inspect the Leased Premises
and to make repairs, additions or alterations to the Leased Premises
required by the terms of this Lease;
2. In the event of an emergency, to enter the Leased Premises
without notice to Tenant and to take any reasonable steps necessary in
order to eliminate said emergency.
3. During the last six months of the Lease Term (if not renewed or
extended by Tenant), to place and maintain a "For Rent" sign on the Leased
Premises; and
4. To show the Leased Premises to prospective purchasers, mortgagees
or other persons having a legitimate interest in viewing the same and to
place and maintain a "For Sale" sign on the Property.
5. To install an elevator in the west lobby area, at Landlord's
expense if Landlord elects to do so.
11.5 Default. In the event that Tenant defaults on any of the covenants or
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provisions contained in this Lease, Landlord shall give Tenant written notice of
such default and 10 days' opportunity to cure in the case of a monetary default
or 30 days opportunity to cure in the case of a non-monetary default, provided
that if such default cannot reasonably be cured within a 30 day period and if
Tenant has commenced and is diligently proceeding to cure such default, Tenant
shall be given a reasonable period of time to cure such default. If any such
default remains uncured after the aforesaid time period, then Landlord at its
election may terminate this Lease or terminate Tenant's right to possession
only, without terminating the Lease. Upon termination of
16
this Lease or Tenant's right of possession, Landlord may re-enter the Leased
Premises without process of law and remove all persons, fixtures, and property
therefrom, and Landlord shall not be liable for any damages resulting therefrom.
Upon the termination of the Lease, or upon termination of Tenant's right of
possession without termination of the Lease, the Tenant shall surrender
possession and vacate the Leased Premises immediately, and deliver possession
thereof to the Landlord, and hereby grants to Landlord the full and free right
to enter upon the Leased Premises and to repossess the Leased Premises as
Landlord's former estate and to expel or remove the Tenant and any others who
may be occupying or within the Leased Premises without relinquishing the
Landlord's rights to rent or any other right given to Landlord hereunder or by
operation of law.
In the event that Tenant breaches any of the provisions or covenants of
this Lease, Landlord shall be entitled to recover as damages, all rent and other
sums due and payable by Tenant as well as the cost of performing any covenants
to be performed by Tenant. Furthermore, Landlord shall be entitled to recover
any court costs or attorney's fees incurred as a result of Tenant's breach.
The rights and remedies of Landlord under this Lease are cumulative. The
exercise or use of any one or more thereof shall not bar the Landlord from
exercise or use of any other right or remedy provided herein or otherwise
provided by law, nor shall the exercise nor the use of any right or remedy by
Landlord waive any other right or remedy.
11.6 Successors. All covenants and agreements contained herein shall be
----------
binding upon and inure to, the respective rights of Landlord or Tenant or their
successors, heirs, executors, administrators or assigns.
11.7 Severability. Wherever possible, each provision of this Lease will be
------------
interpreted in a manner so as to be effective and valid under applicable law,
but if any provision of this Lease shall be prohibited by or be held invalid
under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provisions
or the remaining provisions of this Lease.
11.8 Estoppel Certificates. Tenant shall from time to time, upon not less
---------------------
then ten (10) business days prior written request from Landlord, execute,
acknowledge and deliver to Landlord in a form reasonably satisfactory to
Landlord or Landlord's mortgagee a written statement certifying, if true, that
Tenant has accepted the Leased Premises, that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), that the
Landlord is not in default hereunder, the date to which the rental or other
charges have been paid in advance, if any, or such other accurate certification
as may be reasonably required by Landlord or Landlord's mortgagee. It is
intended that any such statement delivered pursuant to this section may be
relied upon by any prospective purchaser or mortgagee of the Leased Premises,
and its respective successors and assigns.
17
11.9 Amendments. None of the covenants, terms or conditions of this
----------
Lease, to be kept and performed by either party shall in any manner be altered,
waived, modified, changed or abandoned except by a written instrument, duly
signed, acknowledged and delivered by both parties.
11.10 Notices. All notices or demands upon Landlord or Tenant desired or
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required to be given hereunder shall be in writing and shall be deemed to have
been duly and sufficiently given if delivered personally or by reputable courier
or mailed by United States registered or certified mail in an envelope properly
stamped and addressed as follows:
As to Landlord: Towne Square Realty, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: _____________________
with copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
As to Tenant: PrivateBank and Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as either party designates by proper notice to the
other party. The effective date of such notice, if mailed, shall be three days
after delivery of the same to the United States Postal Service.
11.11 Time is of the Essence. Time is of the essence of this Lease, and
----------------------
all provisions relating thereto shall be strictly constructed.
11.12 Captions. The captions of this Lease are for convenience only and
--------
are not to be construed as part of the Lease and shall not be construed as
defining or limiting in any way the scope or intent of the provisions hereof.
18
11.13 Law Applicable. This Lease is executed in ▇▇▇▇ County, Illinois, and
--------------
shall be construed and enforced in accordance with the laws of the State of
Illinois.
11.14 Real Estate Brokers. Tenant warrants that it has had no dealings
-------------------
with any broker or agent in connection with this Lease.
LANDLORD: TENANT:
TOWNE SQUARE REALTY, L.L.C. PRIVATEBANK AND TRUST
COMPANY
By: _____________________________ By: _____________________________
Its: ____________________________ Its: ____________________________
19
EXHIBIT "A"
DIAGRAM OF LEASED PREMISES
EXHIBIT "B"
TENANT'S IMPROVEMENTS
Complete interior finish of Leased Premises in compliance with all
applicable codes, laws and ordinances. Said work shall be done in a form
suitable to obtain an occupancy permit prior to Tenant opening for business.