Exhibit 10.27
OMNIBUS OFFICE SERVICES
AGREEMENT
THIS OMNIBUS OFFICE SERVICES
AGREEMENT (this “
Agreement ”) is made and entered into as of the
3 rd
day of August, 2006, by and among
the parties whose names are listed on the signature page hereof
under the heading “Signatories” (each a “
Signatory ” and collectively the “
Signatories ”) and Pritzker Realty Group, L.P., an
Illinois limited partnership (“PRG”), as Administrator
(as defined herein).
R
E C I
T A L S :
A. The Signatories are all tenants
or occupants of the building commonly known as Hyatt Center,
located at 71 South Wacker Drive, Chicago, Illinois.
B. Certain of the Signatories have
entered into service contracts (each a “ Service
Contract ”). The Signatory party to each Service Contract
is referred to herein, in such capacity, as the “
Contracting Party, ” and the vendor under each such
Service Contract is referred to herein as the “
Vendor. ” The existing Service Contracts are more
particularly described on the Addenda (as defined
herein).
C. The services to be provided under
each Service Contract will be provided to and utilized by one or
more Signatories. Each Signatory receiving services under a Service
Contract is referred to herein, in such capacity, as a “
Service User .”
D. The Signatories desire to
establish a system for the administration of the Service Contracts,
including, among other things, the methodology by which the fees
with respect to each Service Contract will be allocated among the
applicable Service Users.
E. The Signatories desire to retain
PRG to provide various Administrative Services (as defined herein)
with respect to the Service Contracts (PRG in its capacity as the
provider of the Administrative Services being referred to herein as
“ Administrator ”), and Administrator desires to
provide such Administrative Services to the Signatories, on the
terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE
, in consideration of the mutual
promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Engagement of
Administrator . The Signatories collectively hereby engage
Administrator to provide the administrative services and office
management services to the Signatories as specified herein.
Administrator hereby accepts such engagement and shall devote such
time as is necessary for the performance and discharge of its
duties and responsibilities hereunder.
2. Term .
(a) The term of this Agreement shall
commence on the earliest date Administrative Services or Office
Management Services were provided by Administrator under any
Service Contract and shall continue until terminated by the mutual
agreement of the Signatories and Administrator. Upon termination of
this Agreement, Administrator shall be entitled to reimbursements
for costs and obligations incurred and any Advances (as defined
herein) made prior to the date of termination.
(b) Any Signatory may terminate its
participation in this Agreement upon not less than five
(5) days’ prior notice to Administrator provided such
Service User (i) is not receiving any services under any
Service Contract, (ii) is not the Contracting Party under any
Service Contract and (iii) is not receiving any Office
Management Services.
(c) Administrator may resign as
Administrator upon not less than ninety (90) days’ prior
notice to the Signatories. Upon the resignation of Administrator,
the Signatories will endeavor to engage a replacement Administrator
prior to the effective date of the existing Administrator’s
resignation. If a replacement Administrator has not been engaged
prior to the effective date of the existing Administrator’s
resignation, each Contracting Party shall be responsible for
administering its respective Service Contract until a replacement
Administrator has been engaged.
3. Service Contracts Subject to
this Agreement .
(a) No Service Contract shall be
subject to this Agreement until the Contracting Party, the
applicable Service Users and Administrator have executed and
delivered an addendum relating to such Service Contract setting
forth, among other things, the Fee Allocation Method (as defined
herein) for such Service Contract (each an “ Addendum
”). A form of Addendum is attached hereto as Exhibit A
. Upon execution and delivery by the Contracting Party, the Service
Users set forth thereon, and Administrator, such Addendum, shall be
appended to and shall become a part of this Agreement effective as
of the effective date set forth in such Addendum.
(b) A Service User may terminate its
utilization of services under a Service Contract (such Service User
terminating utilization of services is referred to herein as a
“ Terminating Service User ” and the date on
which such termination becomes effective is referred to herein as
the “ Utilization Termination Date ”) upon not
less than thirty (30) days’ prior notice to
Administrator so long as (i) such Terminating Service User is
not the Contracting Party under the applicable Service Contract and
(ii) the Contracting Party has the right to terminate the
Service Contract on the Utilization Termination Date without
penalty, premium or fee. A Terminating Service User shall remain
obligated for its allocable share of all costs and obligations
incurred hereunder or under the Service Contract on or prior to the
Utilization Termination Date. No termination by a Terminating
Service User with respect to a particular Service Contract shall be
effective until an Addendum reflecting such termination has been
executed and delivered by such Terminating Service User and
Administrator.
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4. Fee Allocation Method .
The Signatories agree that the fees and charges payable under a
Service Contract shall be allocated among the applicable Service
Users in accordance with the allocation method (the “ Fee
Allocation Method ”) set forth in the Addendum applicable
to such Service Contract.
5. Administrator’s
Services .
(a) Administrator, through its
officers, employees and agents, shall be responsible for the
day-to-day ministerial administration and management of the Service
Contracts, including without limitation, the management of Vendors,
the payment of invoices from Vendors (each an “
Invoice ”) and the collection from the applicable
Service Users of their respective allocable shares of the fees and
charges under such Invoices. The administrative services performed
by Administrator with respect to the Service Contracts are
collectively referred to herein as the “ Administrative
Services .” Any action performed by Administrator with
respect to a Service Contract shall be performed in a ministerial
and administrative capacity for and on behalf of the Contracting
Party, and, unless directed by a Contracting Party, Administrator
shall have no authority to enter into amendments to or otherwise
modify any Service Contract.
(b) Administrator, through its
officers, employees and agents, shall also provide to the
Signatories certain office management services relating to the
premises and facilities shared by the Signatories on the 47
th Floor and the portion of the 46
th Floor presently occupied by PRG (the “OM
Premises”) (to the extent such services are not provided to
the Signatories pursuant to a Service Contract), including, without
limitation, (i) the coordination, processing and supervision
of service requests and work orders with the property manager of
the building in which the OM Premises are located, (ii) the
coordination, processing and supervision of purchase contracts and
orders for furniture, fixtures, equipment, supplies and other
materials as requested by the Signatories from time to time, and
the payment of invoices therefor, and (iii) the provision,
management and supervision of personnel to perform such Office
Management Services (to the extent such personnel are not provided
to the Signatories pursuant to a Service Contract), including,
without limitation, office managers, receptionists, mailroom staff,
copier room staff and kitchen staff serving the OM Premises. The
office management services performed by Administrator are referred
to herein as the “ Office Management Services
.”
6. Invoices .
(a) Each Contracting Party shall
deliver all Invoices to Administrator promptly after receipt
thereof by such Contracting Party or shall cause the Vendors to
deliver all Invoices directly to Administrator.
(b) Administrator shall use
commercially reasonable efforts to process each Invoice such that
the Invoice is paid timely in accordance with the terms of the
applicable Service Contract. Administrator shall allocate the fees
and charges under each Invoice in accordance with the Fee
Allocation Method set forth in the applicable Addendum and, from
time to time as determined by Administrator, deliver to each
Service User a statement of the allocable share of fees and charges
owed by such Service User with respect to such Invoice (an “
Allocation Statement ”). Upon request of a Service
User, Administrator will provide the backup calculations for any
Allocation Statement. Each Service User shall remit to
Administrator the amount set forth on the Allocation
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Statement within thirty (30) days after
receipt of the Allocation Statement. If the full amount set forth
on any Allocation Statement is not received from the Service User
within such thirty (30) day period, such Service User shall
pay to Administrator a late charge (a “ Late Charge
”) equal to five percent (5%) of the unpaid amount. If
the full amount set forth on any Allocation Statement is not
received from the Service User within one hundred twenty
(120) days after receipt of the Allocation Statement, all
unpaid amounts shall thereafter bear interest until paid in full at
a per annum interest rate equal to eighteen percent (18%). Any
amounts collected by Administrator on account of Late Charges and
interest remaining after payment of all amounts due pursuant to an
Invoice shall be retained by Administrator to defray the expense
incurred by Administrator in handling and processing the delinquent
payment.
(c) Administrator (i) shall
have no obligation to remit payment for any Invoice until
Administrator has received funds in the full amount of such Invoice
from the applicable Service Users and (ii) shall not be
required to advance any funds on behalf of any Signatory; provided
Administrator, in its sole election, may (but shall have no
obligation to) pay an Invoice from its own funds (each an “
Advance ”) and seek reimbursement therefor from the
appropriate Service Users by issuing an Allocation Statement in
accordance with the terms of this Agreement. Administrator shall
not be entitled to charge interest on an Advance (provided the
foregoing shall not prevent Administrator from collecting interest
payable pursuant to Paragraph 6(b) above in the event any Service
User fails to pay in full amounts set forth on an Allocation
Statement within the requisite time period).
(d) To the extent desired by any
Contracting Party in its sole election, the Contracting Party may
(but shall have no obligation to) pay an Invoice from its own funds
(each a “ Contracting Party Advance ”) and then
either (i) request that the Administrator obtain reimbursement
from the appropriate Service Users or (ii) issue invoices
directly to the appropriate Service Users for reimbursement.
Contracting Party shall not be entitled to charge interest on any
Contracting Party Advance (provided the foregoing shall not prevent
Administrator from collecting interest payable pursuant to
Paragraph 6(b) above in the event any Service User fails to pay in
full amounts set forth on an Allocation Statement within the
requisite time period).
7. Administrator’s
Compensation; Reimbursement of Administrator’s Expenses
.
(a) As compensation for the
Administrator’s performance of the Administrative Services
and the Office Management Services, the Signatories shall pay to
Administrator a reasonable administrative fee (an “
Administrative Fee ”) in an amount to be determined
from time to time by Administrator. The Administrative Fee shall be
determined as follows: (i) at least ten (10) days prior
to each calendar year during the term of this Agreement,
Administrator shall provide two budgets for such calendar year, one
budget setting forth the projected costs of providing the
Administrative Services (including in such budget the allocation of
such costs among the Signatories) (the “AS Budget”) and
one budget setting forth the projected costs of providing the
Office Management Services to the Signatories (the “OMS
Budget”); (ii) any Signatory objecting to either budget
(including any objection to the allocation of the AS Budget) may
terminate its participation in this Agreement as provided under
Paragraph 2(b) above; (iii) the Administrative Fee will be
based on the AS Budget and OMS Budget, with costs being allocated
by Administrator among the non-terminating Signatories,
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(A) relative to the Administrative
Services, on the basis set forth in the AS Budget, and
(B) relative to the Office Management Services, on the basis
of relative square footage of the OM Premises. The Administrative
Fee shall be payable each calendar quarter in advance and each
Signatory shall pay its allocable share thereof promptly (and in
any event within ten (10) business days) after
Administrator’s issuance of an invoice in respect thereof (an
“ Administrative Fee Invoice ”). The allocation
of the AS Budget among the Signatories shall be based on
Administrator’s projection of Signatories’ purchases
from Vendors and the level of services required to procure and
administer such purchases. With respect to the portion of the term
of this Agreement occurring prior to the date hereof, the
Signatories have been provided with the budget(s) relating to such
period and by execution hereof hereby approve such budget(s).
Promptly after execution hereof, Administrator shall issue
Administrative Fee Invoices in respect of the period prior to the
date hereof. If the full amount set forth on any Administrative Fee
Invoice is not received from a Signatory within such ten
(10) business day period, such Signatory shall pay to
Administrator a Late Charge equal to five percent (5%) of the
unpaid amount. If the full amount set forth on any Administrative
Fee Invoice is not received from a Signatory within thirty
(30) days after receipt of the Administrative Fee Invoice,
Administrator may cease to provide Administrative Services and
Office Management Services to such Signatory until all amounts due
(including Late Charges) have been paid in full.
(b) Administrator shall be entitled
to reimbursement from the Signatories for any reasonable direct
out-of-pocket costs or expenses incurred by Administrator or any of
its officers, employees or agents in carrying out its duties
hereunder. Administrator shall allocate such costs and expenses
among the Signatories on a reasonable basis. Administrator shall be
entitled to such reimbursement from the Signatories promptly after
the expenditure of such funds or at such other times as shall be
mutually agreed to by the Signatories, and Administrator shall
supply to the Signatories such invoices and receipts therefor as
shall be reasonably requested by the Signatories.
8. Responsibilities With Respect
to Service Contracts .
(a) Subject to Paragraph 8(d) below
and the last sentence of Paragraph 5 above, the Contracting Party
and Administrator shall exercise all rights of the Contracting
Party under a Service Contract.
(b) Each Service User shall be
responsible for complying with the terms and provisions of each
Service Contract with respect to its use of the services under such
Service Contract and its respective premises and
property.
(c) To the extent Contracting Party
is required to maintain insurance pursuant to the terms of a
Service Contract, each Service User shall be responsible for
providing such required insurance with respect to its respective
premises and property. Each Service User’s commercial general
liability coverage shall name the other Service Users and the
Administrator as additional insureds. In the event an insurance
claim is made against a Service User by a Vendor or other third
party, the insurance policy of the Service User(s) whose usage or
receipt of services gave rise to such claim (the “ Subject
Service User ”) shall be primary to any insurance policy
maintained by any other Service User or Administrator.
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(d) Each Contracting Party, from
time to time, may enter into amendments to the applicable Service
Contract without the consent of any other Service User or
Administrator. Contracting Party shall provide oral or written
notice to the other Service Users or Administrator of any
amendment. Each other Service User shall be deemed to have
consented to any such amendment to the extent an officer,
Responsible Party (as defined herein) of such Service User has been
notified of the substance of such amendment and fails to object to
such amendment within a reasonable amount of time thereafter (and,
for purposes of this sentence, such other Service User’s
continuing to pay its allocable share of costs with respect to such
Service Contract, as amended, shall constitute failure to object).
As used herein, “ Responsible Party ” means,
with respect to any Service User, the “ Contact Person
” listed on the Addendum for the applicable Service Contract,
or an office manager or other person responsible for the
administration of such Service Contract. If a Service User objects
to any amendment of a Service Contract (an “ Objecting
Service User ”), such Objecting Service User shall have
the right to terminate its usage of such Service Contract in
accordance with the termination rights set forth in Paragraph 3(b)
above.
9. Indemnification
.
(a) Without limiting
Administrator’s duties and obligations as elsewhere provided
herein, Administrator shall indemnify and hold the Contracting
Party and the other Service Users with respect to a Service
Contract harmless from any judgment, loss, damage or expense,
including, but not limited to, attorneys’ fees and amounts
paid in settlement on account of any claim, action or proceeding
brought against the Contracting Party, the other Service Users and
Administrator, or any of them, arising out of or connected with
(i) Administrator’s or its officers’,
employees’ or agents’ gross negligence or willful
misconduct in connection with the performance of
Administrator’s duties or responsibilities under this
Agreement, or (iii) Administrator’s breach of this
Agreement, in each case with respect to the applicable Service
Contract.
(b) Without limiting the Service
Users’ duties, obligations and liabilities as elsewhere
provided herein, the Service Users severally shall indemnify and
hold Administrator harmless, except in cases of
Administrator’s or its officers’ employees’ or
agents’ gross negligence or willful misconduct or
Administrator’s breach of this Agreement, from any judgment,
loss, damage or expense, including, but not limited to,
attorneys’ fees and amounts paid in settlement, on account of
any claim, action or proceeding brought against the Service Users
and Administrator, or any of them, arising out of the performance
by Administrator of its duties hereunder with respect to the
applicable Service Contract. Administrator shall not be liable for
any good faith error of judgment in pursuance of its duties and
activities hereunder, except in cases of Administrator’s or
its officers’, employees’ or agents’ gross
negligence or willful misconduct or Administrator’s breach of
this Agreement.
(c) Without limiting the duties,
obligations and liabilities of Service Users as elsewhere provided
herein, each Service User, on a several basis, shall indemnify and
hold Contracting Party harmless from any judgment, loss, damage or
expense, including, but not li
