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EXHIBIT 10.2
OFFICE LEASE
Between
WELLS REIT - CHICAGO CENTER OWNER, LLC
,
a Delaware limited liability company,
and
FEDERAL HOME LOAN BANK OF CHICAGO
TABLE OF CONTENTS
Page No.
ARTICLE 1 Premises and Term *
ARTICLE 2 Base Rent *
ARTICLE 3 Additional Rent *
ARTICLE 4 Use and Rules *
ARTICLE 5 Services and Utilities *
ARTICLE 6 Alterations and Liens *
ARTICLE 7 Repairs *
ARTICLE 8 Casualty Damage *
ARTICLE 9 Insurance, Subrogation, and Waiver of Claims
*
ARTICLE 10 Condemnation *
ARTICLE 11 Return of Possession *
ARTICLE 12 Holding Over *
ARTICLE 13 No Waiver *
ARTICLE 14 Attorneys' Fees and Jury Trial *
ARTICLE 15 Personal Property Taxes, Rent Taxes and Other
Taxes *
ARTICLE 16 Subordination, Attornment and Mortgagee
Protection *
ARTICLE 17 Estoppel Certificate *
ARTICLE 18 Assignment and Subletting *
ARTICLE 19 Rights Reserved By Landlord *
ARTICLE 20 Landlord's Remedies *
ARTICLE 21 Landlord's Right to Cure *
ARTICLE 22 Conveyance by Landlord and Liability *
ARTICLE 23 Indemnification *
ARTICLE 24 Safety and Security Devices, Services and
Programs *
ARTICLE 25 Communications and Computer Lines *
ARTICLE 26 Hazardous Materials *
ARTICLE 27 Offer *
ARTICLE 28 Notices *
ARTICLE 29 Real Estate Brokers *
ARTICLE 30 Security Deposit *
ARTICLE 31 Exculpatory Provisions *
ARTICLE 32 Conditions; Lender Approval and Sublease
*
ARTICLE 33 Miscellaneous *
ARTICLE 34 Entire Agreement *
ARTICLE 35 Contraction Option *
ARTICLE 36 Termination Option *
ARTICLE 37 Bus Service *
RIDER ONE RULES
EXHIBIT A FLOOR PLANS SHOWING PREMISES
EXHIBIT B WORKLETTER AGREEMENT
EXHIBIT C PROHIBITED USES
EXHIBIT D RENEWAL OPTION
EXHIBIT E COMMENCEMENT DATE CONFIRMATION
EXHIBIT F JANITORIAL SPECIFICATIONS
EXHIBIT G CURRENT HOLDER'S FORM OF SNDA
EXHIBIT H FORM OF CONSENT TO SUB-SUBLEASE
EXHIBIT I CONTRACTION SPACE LOCATION OPTIONS
OFFICE LEASE
THIS LEASE made as of the 9th day of January,
2009, between WELLS REIT - CHICAGO CENTER OWNER, LLC, a Delaware
limited liability company (" Landlord ")
FEDERAL HOME LOAN BANK OF CHICAGO , a corporation organized
under the laws of the United States of America ("
Tenant ").
WITNESSETH:
-
-
Premises and
Term
-
-
-
- Premises, Building and Property. Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord that certain space
known as Suites 1700 & 1800 containing approximately 63,402
rentable square feet (" Premises ") shown on Exhibit
A attached hereto, on the seventeenth and eighteenth floors of the
building (" Building ") commonly known as Aon Center,
200 East Randolph Drive, Chicago, Illinois, subject to the terms of
this Lease. The term " Property " shall mean the
Building, and any common or public areas or facilities, easements,
corridors, lobbies, sidewalks, loading areas, driveways, landscaped
areas, skywalks, parking garages, and any and all other structures
or facilities operated or maintained in connection with or for the
benefit of the Building, and all parcels or tracts of land on which
all or any portion of the Building or any of the other foregoing
items are located, and any fixtures, machinery, equipment,
apparatus, Systems and Equipment, furniture and other personal
property located thereon or therein and used in connection
therewith owned or leased by Landlord. Subject to Landlord's rules
and regulations, Tenant shall have the right to use the common and
public areas of the Property in common with Landlord, other
Building tenants and their invitees. Possession of areas necessary
for utilities, services, safety and operation of the Property,
including the Systems and Equipment, fire stairways, perimeter
walls, space between the finished ceiling of the Premises and the
slab of the floor or roof of the Building there above, and the use
thereof together with the right to install, maintain, operate,
repair and replace the Systems and Equipment, including any of the
same in, through, under or above the Premises in locations that
will not materially interfere with Tenant's use of the Premises
(i.e. in space other than finished space with the Premises, such as
within the space between the finished ceiling of the Premises and
the slab of the floor above, in the walls, or in utility closets)
are hereby excepted and reserved by Landlord, and not demised to
Tenant. " Systems and Equipment " shall mean any
plant, machinery, transformers, duct work, cable, wires, and other
equipment, facilities, and systems designed to supply heat,
ventilation, air conditioning and humidity or any other services or
utilities, or comprising or serving as any component or portion of
the electrical, gas, steam, plumbing, sprinkler, communications,
alarm, security, or fire/life/safety systems or equipment, or any
other mechanical, electrical, electronic, computer or other systems
or equipment for the Property. Landlord's use and maintenance of
the Systems and Equipment shall: (i) not reduce the square footage
of the Premises, (ii) not unreasonably interfere with Tenant's use
and enjoyment of the Premises, and (iii) be made at Landlord's
expense (without limiting Landlord's right to include such expenses
in "Operating Expenses" under Article 3 below). Landlord shall give
Tenant reasonable prior notice before entering the Premises to
repair and maintain Systems and Equipment and, if Landlord damages
any portion of the Premises or any furniture or equipment contained
therein in the course of such repair and maintenance, Landlord
shall promptly repair damage caused by Landlord at Landlord's
expense.
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- Commencement Date: The " Commencement Date
" shall be December 11, 2013. The " Term " of this Lease
shall be approximately eleven (11) years, commencing on the
Commencement Date and ending at 11:59 p.m. local time on December
31, 2024 (" Expiration Date "), subject to adjustment and earlier
termination as provided herein. Landlord and Tenant agree that for
purposes of this Lease the rentable area of the Premises is
approximately sixty three thousand four hundred two (63,402)
rentable square feet. Tenant intends to occupy the Premises prior
to the Commencement Date as a sub-subtenant of Aon Corporation ("
Aon ") pursuant to a sub sublease between Aon and
Tenant dated on or about the date of this Lease (the " Sub
Sublease "). Landlord currently leases the Premises and
other space in the Building to BP Corporation North America, Inc.
(" BP ") pursuant to a lease between Landlord and BP
dated December 11, 1998, as amended (the " BP Lease
"). BP subleases the Premises and other space to Aon pursuant to a
sublease between BP and Aon dated July 30, 1999, as amended (the "
Aon Sublease "). If this Lease is in full force and
effect, Tenant is not in Default hereunder and, due to no fault of
Tenant, the Sub Sublease or Tenant's right to occupy the Premises
prior to the Commencement Date is terminated because of the
termination of the BP Lease or BP's right to possession of the
Premises (which, if the Aon Sublease is not sooner terminated, also
causes the concurrent termination of the Aon Sublease), then the
Term of this Lease shall begin on the effective date of termination
of such superior tenancies (which date shall be the "Commencement
Date" hereunder) and Tenant shall pay Landlord Base Rent each month
from such date until December 10, 2013 in the amount then payable
by Tenant to Aon under the Sub Sublease. The acceleration of the
Commencement Date pursuant to the terms of the preceding sentence
shall not affect the Expiration Date which shall remain as December
31, 2024. Furthermore, in the event the Sub Sublease and this Lease
are in full force and effect, Tenant is not in default under the
Sub-Sublease or under this Lease beyond any applicable notice and
cure periods, the BP Lease is in full force and effect and BP is
not in default thereunder beyond applicable notice and cure periods
and, due to no fault of Tenant, the Aon Sublease is terminated
prior to the Commencement Date, then Landlord agrees to exercise
its right under the BP Lease to enter into a new sublease of the
Premises in place of the Aon Sublease, in which event (1) Tenant
shall attorn to Landlord as sublandlord under such new sublease and
perform all of Tenant's obligations under the Sub Sublease directly
to Landlord as if Landlord were the sub-sublandlord under the Sub
Sublease and (2) Landlord shall agree to recognize the estate of
Tenant under the Sub Sublease and not disturb Tenant's tenancy
under the Sub Sublease for so long as Tenant, as sub subtenant,
pays and performs its obligations thereunder and the BP Lease
remains in full force and effect. Landlord agrees to promptly
notify Tenant in the event of any material default of which
Landlord is aware under the BP Lease or the Aon Sublease.
Conversely, Tenant agrees to promptly notify Landlord in the event
of any material default of which Tenant is aware under the BP Lease
or the Aon Sublease. In the event Landlord becomes Tenant's
sub-sublessor after the termination of the Aon Sublease, Landlord
shall not: (i) be liable for, or required to cure, any default by
Aon under the Aon Sublease and/or the Sub-Sublease that precedes
the date on which Landlord becomes Tenant's sub-sublessor, provided
that the foregoing shall not be deemed to excuse Landlord from
obligations or defaults of the sub-sublessor under the Sub-Sublease
of a continuing nature, so long as Tenant gives Landlord prompt
written notice thereof and a reasonable opportunity to perform such
obligation or cure such default; (ii) be responsible to pay any
tenant improvement allowance, moving allowance or any other tenant
inducement in connection with the Sub-Sublease; (iii) be subject to
any offsets or defenses that Tenant then has against the
sub-sublessor under the Sub Sublease; (iv) be bound by any rent
that Tenant paid more than thirty (30) days in advance of the due
date thereof under the terms of the Sub-Sublease, unless and to the
extent the same is delivered to Landlord; or (v) be responsible for
the return or repayment of any security or other deposits made by
Tenant, as sub-subtenant, to Aon, unless and to the extent the same
is delivered to Landlord.
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- Term Commencement. At Landlord's request, after the
Commencement Date, Tenant shall execute and deliver to Landlord a
letter substantially in the form of Exhibit E hereto confirming (x)
the Commencement Date and the expiration date of the initial Term,
(y) that Tenant has accepted the Premises, and (z) that Landlord
has performed all of its obligations with respect to the Premises
(except for punch-list items specified in such letter); however,
the failure of the parties to execute such letter shall not defer
the Commencement Date or otherwise invalidate this Lease.
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- Required Tenant Deliveries. Landlord shall have received
each and every one of the following as conditions to the
effectiveness of this Lease: (i) this Lease fully executed by
Tenant; (ii) executed copies of policies of insurance or
certificates thereof as required under Article 11 of this Lease;
(iii) a copy of the executed Sub-Sublease with Aon Corporation
together with BP's consent thereto; and (iv) Landlord's form of
Consent to the Sub-Sublease in the form attached hereto as Exhibit
H, executed by Aon and Tenant. Failure to timely deliver any of the
foregoing shall not defer the Commencement Date or impair Tenant's
obligation to pay Rent.
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- Acceptance. Tenant has inspected the Premises,
Property, Systems and Equipment and agrees to accept the same "as
is" without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations,
repairs or improvements and no representations respecting the
condition of the Premises or the Property have been made to Tenant
by or on behalf of Landlord, except as expressly provided herein or
in the Workletter
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Base
Rent
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Tenant shall pay Landlord Base Rent ("
Base Rent ") of:
Annual Monthly
Time Period Amount
Amount
12/11/13 - 12/31/14 $1,220,488.50 $101,707.38
1/1/15 - 12/31/15 $1,257,103.16 $104,758.60
1/1/16 - 12/31/16 $1,294,816.25 $107,901.35
1/1/17 - 12/31/17 $1,333,660.74 $111,138.39
1/1/18 - 12/31/18 $1,373,670.56 $114,472.55
1/1/19 - 12/31/19 $1,414,880.68 $117,906.72
1/1/20 - 12/31/20 $1,457,327.10 $121,443.93
1/1/21 - 12/31/21 $1,501,046.91 $125,087.24
1/1/22 - 12/31/22 $1,546,078.32 $128,839.86
1/1/23 - 12/31/23 $1,592,460.67 $132,705.05
1/1/24 - 12/31/24 $1,640,234.49 $136,686.21
in advance on or before the first day of each
calendar month during the Term. If the Term commences on a day
other than the first day of a calendar month, or ends on a day
other than the last day of a calendar month, then the Base Rent for
such month shall be prorated on the basis of the number of days in
that month. Rent shall be paid without any prior demand or notice
therefor and without any deduction, set-off or counterclaim, or
relief from any valuation or appraisement laws. Landlord may apply
payments received from Tenant to any obligations of Tenant then
accrued, without regard to such obligations as may be designated by
Tenant. As used herein, the term " Lease Month "
shall mean each calendar month during the Term (and if the
Commencement Date does not occur on the first day of a calendar
month, the period from the Commencement Date to the first day of
the next calendar month shall be included in the first Lease Month
for purposes of determining the duration of the Term and the
monthly Base Rent rate applicable for such partial month) and the
term " Lease Year " shall mean each consecutive
period of twelve (12) Lease Months.
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Additional
Rent
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- Taxes. Tenant shall pay Landlord Tenant's Prorata Share of
Taxes. " Taxes " shall mean all federal, state,
county, or local taxes, fees, charges or other impositions of every
kind and nature, whether general, special, ordinary or
extraordinary (including without limitation, real estate taxes,
general and special assessments, transit taxes, water and sewer
rents, rent taxes, sales taxes, gross receipts taxes, and personal
property taxes imposed upon Landlord) payable by Landlord in any
calendar year during the Term with respect to the Property.
However, "Taxes" shall not include: Landlord's income taxes,
franchise taxes, gift taxes, capital stock taxes, inheritance and
succession taxes, and estate taxes; provided that if an income or
excise tax is levied by any governmental entity in lieu of or as a
substitute for ad valorem real estate taxes (in whole or in part),
then any such tax or excise shall constitute and be included within
the term "Taxes." Taxes shall include the reasonable, actual
out-of-pocket costs incurred by Landlord in retaining consultants
to attempt to lower taxes and all reasonable out-of-pocket costs
incurred by Landlord in disputing any taxes or in seeking to lower
the tax valuation of the Property. Tenant waives all rights to
protest or appeal the appraised value of the Premises and the
Property. If Taxes for any period during the Term or any extension
thereof, shall be increased after payment thereof by Landlord for
any reason, Tenant shall pay Landlord upon demand Tenant's Prorata
Share of such increased Taxes. Notwithstanding the foregoing, if
any Taxes shall be paid based on assessments or bills by a
governmental or municipal authority using a fiscal year other than
a calendar year, Landlord may elect to average the assessments or
bills for the subject calendar year, based on the number of months
of such calendar year included in each such assessment or bill. "
Tenant's Prorata Share " of Taxes shall be 2.46%,
being the rentable square footage of the Premises divided by the
rentable square footage of the Building (2,579,464) and Tenant's
Prorata Share of Operating Expenses shall be 2.54%, being the
rentable square footage of the Premises divided by the rentable
square footage of the office portion of the Property (2,496,205).
Landlord represents and warrants to Tenant that the "rentable
square footage of the Premises" and the "rentable square footage of
the Building" have each been determined under this Lease in
accordance with the American National Standards Institute ("
ANSI ")/Building Owners and Managers Association
International (" BOMA ") Form Z65.1-1996. Landlord
may remeasure the Building from time to time and, upon written
notice to Tenant Landlord's new measurements shall be binding
hereunder provided Landlord measures according to the 1996
ANSI/BOMA standard or a more current ANSI/BOMA standard and further
provided any such remeasurement shall not result in an increase or
decrease in Base Rent as set forth in this Lease for the balance of
the Term. Notwithstanding the foregoing, if the Property or any
development of which it is a part, shall contain non-office uses,
Landlord shall have the right (but not the obligation) to determine
in accordance with sound accounting and management principles,
Tenant's Prorata Share of Taxes and Operating Expenses for only the
office portion of the Property or of such development, in which
event, Tenant's Prorata Share shall be based on the ratio of the
rentable area of the Premises to the rentable area of such office
portion.
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- Operating Expenses. Tenant shall pay Landlord Tenant's
Prorata Share of Operating Expenses. " Operating
Expenses " shall mean all actual expenses of every kind
(other than Taxes) which are paid, incurred or accrued for, by or
on behalf of Landlord during any calendar year any portion of which
occurs during the Term, in connection with the management, repair,
maintenance, restoration and operation of the Property, and the
provision of transportation to or from the Property, including
without limitation, any amounts actually paid for: (a) utilities
for the Property, including but not limited to electricity, power,
gas, steam, chilled water, oil or other fuel, water, sewer,
lighting, heating, air conditioning and ventilating, (b) permits,
licenses and certificates necessary to operate, manage and lease
the Property or for the operation of any transportation to or from
the Property, (c) insurance applicable to the Property, or
applicable to the provision of any transportation to or from the
Property, but not limited to the amount of coverage Landlord is
required to provide under this Lease, (d) supplies, tools,
equipment and materials used in the operation, repair and
maintenance of the Property or the provision of transportation to
or from the Property, (e) accounting, legal, inspection,
consulting, concierge, transportation (including, but not limited
to, shuttle bus service) and other services, (f) any equipment
rental of any kind including bus or other transportation rental (or
installment equipment purchase or equipment financing agreements),
(g) management fees of not more than three percent (3%) of the
gross revenues of the Building (for purposes of this clause (g)
expressly including revenues from parking), amounts payable under
management agreements, and the fair rental value of any office
space actually used for a management office, (h) wages, salaries
and other compensation and benefits (including the fair value of
any parking privileges provided) for all persons up to and
including the level of Building General Manager engaged in the
operation, maintenance or security of, or transportation to or
from, the Property, and employer's Social Security taxes,
unemployment taxes or insurance, and any other taxes which may be
levied on such wages, salaries, compensation and benefits, (i)
payments under any easement, operating agreement, declaration,
restrictive covenant, or instrument pertaining to the sharing of
costs in any planned development, and (j) operation, repair, and
maintenance of all Systems and Equipment and components thereof
(including replacement of components), janitorial service, alarm
and security service, window cleaning, trash removal, elevator
maintenance, cleaning of walks, parking facilities and Property
walls, removal of ice and snow, replacement of wall and floor
coverings, ceiling tiles and fixtures in lobbies, corridors,
restrooms and other common or public areas or facilities,
maintenance and replacement of shrubs, trees, grass, sod and other
landscaped items, irrigation systems, drainage facilities, fences,
curbs, and walkways, re-paving and re-striping parking facilities,
and roof repairs. Notwithstanding the foregoing, Operating Expenses
shall not include:
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- repairs or other work occasioned by the exercise of right of
eminent domain;
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- leasing commissions, attorney's fees, costs and disbursements
and other expenses, all of which are incurred in connection with
negotiation or disputes with tenants, other occupants or
prospective tenants;
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- taxes, franchise, income or other taxes measured or determined
based upon Landlord's income (other than gross receipts
taxes);
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- costs associated with cure or correction of latent defects or
the correction or abatement of environmental hazards or conditions,
provided that Operating Expenses may include the reasonable costs
of monitoring, containment, and abatement (but not costs of
removal) of hazardous materials including, without limitation,
compliance with any asbestos O&M plan;
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- renovating or otherwise improving decorating, painting or
redecorating leased space for other tenants or other occupants or
vacant tenant space, other then ordinary maintenance provided to
all tenants, except in common areas;
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- Landlord's costs of electricity and other services sold
separately to tenants for which Landlord is entitled to be
reimbursed by such tenants as an additional charge over and above
the base rent and operating expenses or other rental adjustments
payable under the lease with such tenant, and domestic water
sub-metered and separately billed to tenants;
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- depreciation and, except as provided in clause (xvi) below,
amortization;
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- expense in connection with services or other benefits of a type
which tenant is not entitled to receive under this Lease but which
either are provided to another tenant or occupant, or are provided
to some other third party;
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- late payment fees and interest on overdue amounts;
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- other than with respect to management fees and amounts payable
to Landlord, affiliates of Landlord, and their employees with
respect to Property management (which is governed by the
limitations set forth in 3(B) above and (xi) below), overhead and
profit paid to subsidiaries or affiliates of Landlord for services
on or to the Property, to the extent only that the costs of such
services exceed competitive costs, or such services where they are
not so rendered by a subsidiary or affiliate;
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- salaries of employees above the level of building general
manager or superintendent;
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- Interest on debt or amortization payments on any mortgage or
mortgages and rent under any ground or underlying lease;
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- any particular item or service for which Tenant otherwise
reimburses Landlord or direct payment over and above Base Rent and
Additional Rent;
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- advertising and promotional expenditures;
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- any expense for which Landlord is compensated through proceeds
of insurance or agreements of indemnity or surety bonds or
guaranties;
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- capital expenditures, except those: (a) made to comply with
Laws not in effect on the Commencement Date and (b) made primarily
to reduce Operating Expenses, (but only to the extent of actual
reduction in Operating Expenses achieved thereby), such permitted
capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over their useful
lives as determined in accordance with GAAP. Replacement of carpet
and wall coverings in multi tenant corridors shall not be
considered a capital expenditure;
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- Any fines or penalties incurred due to actual or alleged
violation by Landlord of any governmental rule or authority
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- cost of legal, accounting and other professional services
incurred by Landlord in the negotiation of leases, in connection
with tenant disputes, and in connection with eviction
proceedings;
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- cost, rental costs or costs of repair with respect to any art
work, paintings, sculptures, tapestries, antiques or other objects
of art or other furnishings of an unusual nature or extraordinary
value;
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- Landlord's general overhead except as it relates to the
Building;
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- the cost of any repair or other work necessitated or occasioned
by fire, flood, windstorm, earthquake, or other insured casualty,
including insurance deductibles, to the extent actually
insured;
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- any compensation paid to, and benefits provided to, clerks,
attendants, or other persons in commercial concessions operated by
Landlord that are not available as a Building amenity to tenants
generally; and
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- Except as provided in 3(B)(g) above, expenses of operating,
repairing, and managing the Building's parking garage.
With respect to any calendar year or partial
calendar year in which the Building is not occupied to the extent
of 95% of the rentable area thereof, Operating Expenses which vary
with occupancy for such period shall, for the purposes hereof, be
increased to the amount which would have been incurred had the
Building been occupied to the extent of 95% of the rentable area
thereof.
- Manner of Payment. Taxes and Operating Expenses shall be
paid in the following manner:
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- Landlord shall reasonably estimate in advance the amounts
Tenant shall owe for Taxes and Operating Expenses for any full or
partial calendar year of the Term. In such event, Tenant shall pay
such estimated amounts, on a monthly basis in installments equal to
one-twelfth of the annual estimate, on or before the first day of
each calendar month, together with Tenant's payment of Base Rent.
Such estimate may be reasonably adjusted by Landlord up to two (2)
times per Lease Year, which adjustment(s) shall be communicated to
Tenant in a written notice including a reasonably detailed
explanation of the necessity of such adjustment.
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- Within one hundred and twenty (120) days after the end of each
calendar year, Landlord shall provide a reasonably detailed
statement (the " Statement ") to Tenant showing: (a)
the amount of actual Taxes and Operating Expenses for such calendar
year, with a listing of amounts for major categories of Operating
Expenses, (b) any amount paid by Tenant towards Taxes and Operating
Expenses during such calendar year on an estimated basis, and (c)
any revised estimate of Tenant's obligations for Taxes and
Operating Expenses for the current calendar year.
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- If the Statement shows that Tenant's estimated payments were
less than Tenant's actual obligations for Taxes and Operating
Expenses for such year, Tenant shall pay the difference. If the
Statement shows an increase in Tenant's estimated payments for the
current calendar year, Tenant shall pay the difference between the
new and former estimates, for the period from January 1 of the
current calendar year through the month in which the Statement is
sent. Tenant shall make such payments within thirty (30) days after
Landlord sends the Statement.
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- If the Statement shows that Tenant's estimated payments
exceeded Tenant's actual obligations for Taxes and Operating
Expenses, Tenant shall receive a credit for the difference against
payments of Rent next due. If the Term shall have expired and no
further Rent shall be due, Tenant shall receive a refund of such
difference, within thirty (30) days after Landlord sends the
Statement.
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- So long as Tenant's obligations hereunder are not materially
adversely affected thereby, Landlord reserves the right to
reasonably change, from time to time, the manner or timing of the
foregoing payments. In lieu of providing one Statement covering
Taxes and Operating Expenses, Landlord may provide separate
statements, at the same or different times. No delay by Landlord in
providing the Statement (or separate statements) shall be deemed a
default by Landlord or a waiver of Landlord's right to require
payment of Tenant's obligations for actual or estimated Taxes or
Operating Expenses, but Landlord shall have no right to deliver,
adjust, modify or amend a Statement more than fourteen (14) months
after the end of the applicable calendar year.
- Proration. If the Term commences other than on January
1, or ends other than on December 31, Tenant's obligations to pay
estimated and actual amounts towards Taxes and Operating Expenses
for such first or final calendar years shall be prorated to reflect
the portion of such years included in the Term. Such proration
shall be made by multiplying the total estimated or actual (as the
case may be) Taxes and Operating Expenses, for such calendar years,
by a fraction, the numerator of which shall be the number of days
of the Term during such calendar year, and the denominator of which
shall be three hundred and sixty-five (365).
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- Landlord's Records. Landlord shall maintain records
respecting Taxes and Operating Expenses and determine the same in
accordance with sound accounting and management practices,
consistently applied. Taxes are currently calculated on a cash
basis and Operating Expenses on an accrual basis. Landlord reserves
the right to change between a cash and accrual system of accounting
and, in such event, Landlord shall make reasonable and appropriate
accrual adjustments to ensure that each calendar year includes
substantially the same recurring items. Tenant or its
representative shall have the right to examine such records upon at
least five (5) business days prior written notice delivered within
ninety (90) days after Tenant's receipt of the applicable Statement
specifying the records Tenant desires to examine, during normal
business hours at the place or places where such records are
normally kept in Chicago, Illinois. Tenant may take exception to
matters included in Taxes or Operating Expenses, or Landlord's
computation of Tenant's Prorata Share of either, by sending notice
specifying such exception and the reasons therefor to Landlord no
later than one hundred twenty (120) days following the furnishing
of the Statement. Such Statement shall be considered final, except
as to matters to which exception is taken after examination of
Landlord's records in the foregoing manner and within the foregoing
one hundred twenty (120) day period. If Tenant timely takes
exception to any matter contained in the Statement as provided
herein, Landlord, subject to the provisions of the remainder of
this Section (E), shall, within thirty (30) days thereafter, refer
the matter to an independent certified public accountant ("
CPA ") from a mid-sized or larger public accounting
firm familiar with the accounting practices of owners of Class A
office buildings in the central business district of Chicago,
Illinois, subject to Tenant's reasonable approval, whose
certification as to the proper amount shall be final and conclusive
as between Landlord and Tenant. Landlord shall allow Tenant a
credit against Rent next due for the amount of any overpayment and
Tenant shall promptly pay Landlord the amount of any underpayment
and, unless such CPA's certification determines that Tenant was
overbilled by more than five percent (5%), Tenant shall promptly
pay the cost of such CPA. The CPA's compensation shall not be
determined or paid on a contingency, percentage, bonus or similar
basis. If Landlord has already retained, in response to another
tenant's exceptions, a CPA to certify one or more of the matters to
which Tenant has taken exception, then, upon Landlord's receipt of
such CPA's certification, Landlord shall provide a copy of the
relevant portions thereof to Tenant and, based upon such
certification, Landlord shall recalculate, to the extent applicable
and for the period of time in question, the amount of those
particular matters included in Tenant's Share of Taxes or Operating
Expenses to which Tenant took exception. Pending resolution of any
such exceptions in the foregoing manner, Tenant shall continue
paying Tenant's Prorata Share of Taxes and Operating Expenses in
the amounts determined by Landlord, subject to adjustment after any
such exceptions are so resolved. Tenant shall keep confidential
(and Tenant shall cause Tenant's auditors to keep confidential )
matters discovered in Tenant's examination of Operating Expenses,
except to the extent required by subpoena or law and except to the
extent necessary to enforce Tenant's rights under this Lease.
-
- Rent and Other Charges. " Additional Rent
" means Tenant's Prorata Share of Taxes and Tenant's Prorata Share
of Operating Expenses. Base Rent, Additional Rent and any other
amounts which Tenant is or becomes obligated to pay Landlord under
this Lease are sometimes herein referred to collectively as "
Rent ," and all remedies applicable to the
non-payment of Rent shall be applicable thereto. Rent shall be paid
at any office maintained by Landlord or its agent at the Property
or at such other place as Landlord may designate.
-
Use and
Rules
-
Tenant shall use the Premises for general office
use and uses ancillary thereto, including, without limitation,
training, and for no other purpose whatsoever, in compliance with
all applicable Laws and all covenants, conditions and restrictions
of record applicable to Tenant's use or occupancy of the Premises,
and without unreasonably disturbing or interfering with any other
tenant or occupant of the Property. The preceding sentence shall
not be construed to require Tenant (a) to comply with Laws or
covenants, conditions and restrictions of record which are
Landlord's responsibility under this Lease, such as a Law or a
recorded document that would require a capital expenditure to be
made with respect to the Building's roof, or (b) to comply with
covenants, conditions or restrictions of record that are applicable
to Landlord and to the entire Building and relating to office use
generally, as opposed to Tenant's particular use of the Premises or
any alterations made to the Premises by Tenant, or (c) to pay
Landlord for any capital expenditure made by Landlord other than as
permitted by Section 3(B)(xvi) above and/or this Article 4.
Furthermore, in the event a Law which first comes into effect on or
after the Commencement Date (a " New Law ") mandates
that alterations be made to the Premises (a " Required
Alteration "), (i) if such New Law is applicable to the
Premises because of Tenant's particular use of the Premises or
because of any alterations or improvements made to the Premises by
Tenant, but is not a Law applicable to office space generally, then
Tenant shall be obligated to perform such Required Alteration at
Tenant's sole cost and expense and in compliance with the other
provisions of this Lease (including without limitation Article 6),
and (ii) if such New Law is applicable to office space generally,
then Tenant shall be obligated to perform such Required Alteration
in compliance with the other provisions of this Lease (including
without limitation Article 6) and (x) the entire cost of such
Required Alteration (the " Required Alteration Cost
") shall be borne by Tenant if the Required Alteration is not
capital in nature, and (y) if the Required Alteration is capital in
nature, the Required Alteration Cost shall be shared by Tenant and
Landlord, with Tenant paying Tenant's Share (hereinafter defined)
and Landlord paying Landlord's Share (hereinafter defined). "
Tenant's Share " for purposes of this provision shall
be calculated as the product of the applicable Required Alteration
Cost multiplied by a fraction, the numerator of which is the
remainder of the Term and the denominator of which is the useful
life of the applicable Required Alteration. " Landlord's
Share " for purposes of this provision shall be the balance
of the Required Alteration Cost. Landlord shall pay to Tenant
Landlord's Share promptly after receipt of reasonable evidence of
the applicable Required Alteration Cost, that Tenant has paid the
full Required Alteration Cost and obtained final lien waivers, and
that the applicable Required Alteration has been completed. Tenant
shall not use the Premises in any manner so as to cause a
cancellation of Landlord's insurance policies or an increase in the
premiums thereunder, Landlord hereby representing to Tenant that
use of the Premises as permitted above in this Article 4 will not
cause a cancellation of such insurance policies or an increase in
the premiums thereunder. Tenant shall comply with, and shall cause
its permitted subtenants, permitted assignees, invitees, employees,
contractors and agents to comply with, all rules set forth in Rider
One attached hereto (the " Rules "). Landlord shall
have the right to reasonably amend such Rules and supplement the
same with other reasonable Rules (not expressly inconsistent with
this Lease) relating to the Property, or the promotion of safety,
care, cleanliness or good order therein, and all such amendments or
new Rules shall be binding upon Tenant after five (5) business days
notice thereof to Tenant. All Rules shall be applied on a
non-discriminatory basis, but nothing herein shall be construed to
give Tenant or any other Person any claim, demand or cause of
action against Landlord arising out of the violation of such Rules
by any other tenant, occupant, or visitor of the Property, or out
of the enforcement or waiver of the Rules by Landlord in any
particular instance. In no event shall the Rules, as amended,
materially increase Tenant's obligations or materially decrease
Tenant's rights hereunder. In the event of any inconsistency
between the Rules, as amended, and the terms of this Lease, the
terms of this Lease shall control. Notwithstanding anything to the
contrary contained in this Lease, the Premises may not be used for
any of the purposes listed on Exhibit C.
Subject to Force Majeure and Landlord's reserved
rights under this Lease, Tenant shall have access to the Premises
and the Building's parking facilities 24 hours a day, 7 days a
week, 365 days a year.
-
Services and
Utilities
-
Landlord shall provide the following services
and utilities (the cost of which shall be included in Operating
Expenses unless otherwise stated herein):
-
-
- Electricity to the Premises shall not be furnished by Landlord,
but shall be furnished, at Tenant's cost, by Landlord's selected
electric utility supplier. Landlord shall permit Tenant to receive
such electrical service for standard office lighting fixtures,
equipment and accessories through Landlord's wires and conduits, to
the extent available and based on the safe and lawful capacity of
the existing electrical circuit(s) and facilities serving the
Premises, provided: (1) the connected electrical load of all of the
same does not exceed an average of seven (7) watts demand load per
square foot of the Premises (Landlord hereby covenanting to Tenant
that electric capacity of at least seven (7) watts demand load per
square foot of the Premises is available) and (2) the safe and
lawful capacity of the existing electrical circuit(s) serving the
Premises is not exceeded. Tenant shall be responsible for the
payment of the cost of all modifications to the existing electrical
circuit(s) and facilities serving the Premises and, in accordance
with Section 5(J) below, the cost of all electricity furnished to
the Premises, including electricity used during the performance of
janitor service, the making of alterations or repairs in the
Premises, or the operation of any special air conditioning systems
which may be required for data processing or computer equipment or
other special equipment or machinery installed by Tenant. Subject
to Section 5(K) below, Landlord's reserved rights under Article 19,
and Force Majeure, electricity shall be available to the Premises
as stated herein twenty four hours per day, seven days a week.
-
- Heat and air-conditioning at such temperatures and in such
amounts as are standard for comparable buildings in the vicinity of
the Building from 8:00 a.m. until 6:00 p.m. Monday through Friday
and 8:00 a.m. until 1:00 p.m. on Saturday, except on Holidays. The
Building's HVAC system is designed to provide an inside condition
as follows:
-
-
- Not more than 75 degrees Fahrenheit (plus or minus 2 degrees)
and 50% relative humidity when the outside temperature does not
exceed 95 degrees Fahrenheit dry bulb and 75 degrees Fahrenheit wet
bulb; and
-
- Not less than a minimum temperature of 72 degrees Fahrenheit
(plus or minus 2 degrees) and 30-40% relative humidity when the
outside temperature is not less than negative 10 (-10) degrees
Fahrenheit dry bulb;
provided that the occupancy of the Premises does
not exceed one (1) person for each 100 rentable square feet and the
total electrical load (including lighting and power) does not
exceed six (6) watts (demand) per useable square foot. Ventilation
will include .2 CFM/useable square foot outside air at all times. "
Holidays " shall mean New Year's Day, President's
Day, Memorial Day, Independence Day, Labor Day, Veterans' Day,
Thanksgiving Day, and Christmas Day. Landlord shall not be
responsible for inadequate air-conditioning or ventilation to the
extent the same occurs because Tenant's use of power exceeds six
(6) watts per square foot without providing adequate
air-conditioning and ventilation therefor or if the number of
individuals in the Premises exceeds one (1) individual per one
hundred fifty (150) rentable square feet.
- Water for drinking, lavatory and toilet purposes. Subject to
Section 5(K) below, Landlord's reserved rights under Article 19,
and Force Majeure, water shall be available to the Premises as
stated herein twenty four hours per day, seven days a week.
-
- Office cleaning and trash removal service Monday through Friday
in and about the Premises in accordance with the janitorial
specifications attached hereto as Exhibit F.
-
- Operatorless passenger elevator service and freight elevator
service (subject to scheduling by Landlord) in common with Landlord
and other tenants and their contractors, agents and visitors.
Provided that elevator service is still available, Landlord
reserves the right to reduce the number of operating elevators from
time to time for maintenance and, during non-business hours, for
energy conservation. Subject to Section 5(K) below, Landlord's
reserved rights under Article 19, and Force Majeure, elevator
service shall be available to the Premises as stated herein twenty
four hours per day, seven days a week. Landlord charges union
overtime fees for after hours freight elevator usage, which fee may
be subject to a minimum charge.
-
- Window washing of the inside and outside of those windows in
the Building's perimeter walls which are situated in the Premises
at intervals to be reasonably determined by Landlord, but in no
event less than one (1) time per calendar year with respect to the
inside of said windows and no less than two (2) times per calendar
year with respect to the outside of said windows.
-
- Use of the Building's loading docks (subject to scheduling by
Landlord) in common with Landlord and other tenants and their
contractors, agents and visitors. Landlord charges union overtime
fees for after hours loading dock usage, which fee may be subject
to a minimum charge. Landlord may also charge a fee for usage or
storage of a dumpster in or about the loading dock area.
-
- Maintenance of the common areas of the Property in good order,
repair and in a first class manner consistent with other Class A
commercial office buildings located in the central business
district of Chicago, Illinois of similar size and reputation to the
Building.
-
- If reasonable and feasible, Landlord shall seek to provide
extra utilities or services requested by Tenant provided the
request does not involve modifications or additions to existing
Systems and Equipment. Notwithstanding the foregoing, Landlord
shall make after hours HVAC available to Tenant upon Tenant's
request, provided such request is made no later than one business
day prior to the need for such after hours usage. Without
limitation, if available Landlord shall make up to 20 tons per
floor of chilled water available to a point on each floor of the
Building for Tenant's supplemental chilled water cooling needs. If
Tenant so requests after hours HVAC, Tenant shall pay Landlord's
standard rates therefor based on Tenant's usage or other reasonable
method of cost allocation determined by Landlord. If Tenant uses
such supplemental chilled water, Tenant shall pay Landlord's
standard rates for such chilled water based on Tenant's usage or
other reasonable method of cost allocation determined by Landlord.
Tenant shall have the right to install supplemental HVAC for
Tenant's telephone switch and Tenant's trading area provided Tenant
does so in compliance with the requirements of this Lease
including, without limitation, all of the requirements of Article 6
below. Subject to the foregoing, Tenant shall pay for extra
utilities or services at rates set by Landlord in its reasonable
discretion. Payment shall be due at the same time as Base Rent or,
if billed separately, shall be due within thirty (30) days after
billing. If Tenant repeatedly shall fail to make any payment for
additional services, Landlord may, upon notice to Tenant and in
addition to all other remedies available to Landlord, discontinue
the additional services. Landlord may install and operate meters or
any other reasonable system for monitoring or estimating any
services or utilities used by Tenant in excess of those required to
be provided by Landlord under this Article (including a system for
Landlord's engineer to reasonably estimate any such excess usage).
If such system indicates such excess services or utilities, Tenant
shall, unless Tenant ceases to use such excess services or
utilities after receipt of written notice from Landlord, pay
Landlord's reasonable charges for installing and operating such
system and any supplementary air-conditioning, ventilation, heat,
electrical or other systems or equipment (or adjustments or
modifications to the existing Systems and Equipment), and
Landlord's reasonable charges for such amount of excess services or
utilities used by Tenant. Landlord may impose a reasonable charge
for any utilities and services, including, without limitation, air
conditioning, electricity, and water, provided by Landlord by
reason of: (i) any use of the Premises at any time other than the
hours set forth above; (ii) any utilities or services beyond what
Landlord agrees herein to furnish; or (iii) special electrical,
cooling and ventilating needs created by Tenant's telephone
equipment, computer, electronic date processing equipment, copying
equipment and other such equipment or uses. The current after hours
HVAC charges (which are subject to increase from time to time as
and to the extent Landlord's cost in providing such service
increases) are $115 per hour per floor for cooling and $91.50 per
hour per floor for heating, plus a one time start up fee of
$66.00.
-
- The Premises shall be separately metered for Tenant's electric
usage for lights and outlets. It shall be Tenant's responsibility,
at no cost to Landlord, to ensure that the Premises are separately
metered before the Commencement Date. Electricity used by Tenant in
the Premises shall be paid by Tenant by a separate charge billed by
the applicable utility company and payable directly by Tenant.
Electrical service to the Premises may be furnished by one or more
companies providing electrical generation, transmission and
distribution services, and the cost of electricity may consist of
several different components or separate charges for such services,
such as generation, distribution and stranded cost charges.
Landlord shall have the exclusive right (i) to choose the company
or companies to provide electrical service to the Property and the
Premises, (ii) to aggregate the electrical service for the Property
and the Premises with other buildings or properties, (iii) to
purchase electrical service through an agent, broker or buyer's
group, and (iv) to change the electrical service provider or manner
of purchasing electrical service from time to time. In exercising
Landlord's rights set forth in the immediately preceding sentence,
Landlord agrees to act prudently and in good faith to ensure the
uninterrupted supply of electric power to the Premises and the
Building at a competitive price for Class A office buildings
located in Chicago, Illinois' central business district.
-
- Landlord shall use reasonable efforts to restore any service
required of it that becomes unavailable; however, such
unavailability shall not render Landlord liable for any damages
caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next
sentence, entitle Tenant to any abatement of Tenant's obligations
hereunder. If, however, Tenant is prevented from using fifty
percent (50%) or more of the Premises because of the unavailability
of electricity or any service to be provided by Landlord hereunder
for a period of five (5) consecutive days following Landlord's
receipt from Tenant of a written notice regarding such
unavailability and such unavailability was not caused by or through
Tenant or a governmental directive, then Tenant shall, as its
exclusive remedy be entitled to a proportionate abatement of Rent
for each consecutive day that Tenant is so prevented from using
fifty percent (50%) or more of the Premises, such proportionate
share to be determined by dividing the square footage of the
Premises without service and not being used by Tenant as a result
thereof by the square footage of the entire Premises. Landlord in
no event shall be liable for damages by reason of loss of profits,
business interruption or other consequential damages.
-
Alterations and
Liens
-
Tenant shall not make any additions, changes,
alterations or improvements (" Alterations ") outside
the Premises. Tenant shall not make any Alterations within the
Premises (" Tenant Work ") without the prior written
consent of Landlord, which shall not be unreasonably withheld,
conditioned or delayed. Landlord may impose reasonable requirements
as a condition of such consent including without limitation the
submission of plans and specifications for Landlord's prior written
approval (which approval shall not be unreasonably withheld,
conditioned or delayed), obtaining necessary permits, obtaining
insurance, prior approval of contractors, subcontractors and
suppliers (which approval shall not be unreasonably withheld,
conditioned, or delayed), prior receipt of copies of all contracts
and subcontracts, contractor and subcontractor lien waivers,
affidavits listing all contractors, subcontractors and suppliers,
use of union labor (if Landlord uses union labor), affidavits from
engineers reasonably acceptable to Landlord stating that the Tenant
Work will not adversely affect the Systems and Equipment or the
structure of the Property, and reasonable requirements as to the
manner and times in which such Tenant Work shall be done.
Landlord's approval of any proposed Alterations or plans and
specifications therefor shall be deemed given unless Landlord
delivers to Tenant written notice objecting to such Alterations or
the plans and specifications therefor in reasonable detail within
twenty (20) business days after Landlord's receipt of Tenant's
request for approval thereof. In no event shall Tenant be required
to obtain Landlord's approval to decorative alterations (e.g.,
painting and carpeting) to the Premises or other Alterations not
requiring a building permit, provided the same will not adversely
affect the Building's systems or structure. All Tenant Work shall
be performed in a good and workmanlike manner and all materials
used shall be of a quality comparable to or better than those in
the Premises and Property and shall be in accordance with plans and
specifications approved by Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed). Landlord may
require that Tenant Work performed by Tenant, which goes beyond
cosmetic modifications to the Premises (such as paint and carpet),
be performed under Landlord's supervision. If Landlord performs
work, Landlord may charge its customary rates therefor. If Tenant
performs work under Landlord's supervision, Tenant shall pay
Landlord a fee of three percent (3%) of the cost of the Tenant's
Work to cover Landlord's overhead in reviewing Tenant's plans and
specifications and supervising the Tenant Work plus reimburse
Landlord for all out of pocket costs reasonably incurred by
Landlord in supervising the Tenant Work, such as fees for a third
party engineer. Consent or supervision by Landlord shall not be
deemed a warranty as to the adequacy of the design, workmanship or
quality of materials, and Landlord hereby expressly disclaims any
responsibility or liability for the same. Landlord shall under no
circumstances have any obligation to repair, maintain or replace
any portion of the Tenant Work. Tenant shall give Landlord notice
at least five (5) days prior to the commencement of any Tenant Work
which will be performed by a third party contractor.
Tenant shall keep the Property and Premises free
from any mechanic's, materialman's or similar liens or other such
encumbrances in connection with any Tenant Work on or respecting
the Premises not performed by or at the request of Landlord, and
shall indemnify and hold Landlord harmless from and against any
claims, liabilities, judgments, or costs (including reasonable
attorneys' fees) arising out of the same or in connection
therewith. Tenant shall remove any such lien or encumbrance by
bond, title insurance in favor of Landlord and Landlord's Holder,
or otherwise within thirty (30) days after written notice by
Landlord, and if Tenant shall fail to do so, Landlord may pay the
amount necessary to remove such lien or encumbrance, without being
responsible for investigating the validity thereof. The amount so
paid shall be deemed additional Rent under this Lease payable
within thirty (30) days after Landlord's written demand, without
limitation as to other remedies available to Landlord under this
Lease. Nothing contained in this Lease shall authorize Tenant to do
any act which shall subject Landlord's title to the Property or
Premises to any lien or encumbrance whether claimed by operation of
law or express or implied contract. Any claim to a lien or
encumbrance upon the Property or Premises arising in connection
with any Tenant Work on or respecting the Premises not performed by
or at the request of Landlord shall be null and void, or at
Landlord's option shall attach only against Tenant's interest in
the Premises and shall in all respects be subordinate to Landlord's
title to the Property and Premises.
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Repairs
-
-
-
- Except for normal wear and tear, customary cleaning and trash
removal provided by Landlord under Article 5, damage covered under
Article 8, Landlord's obligations under Article 10, and Landlord's
obligations under 7(B) below, Tenant shall keep the Premises in
good condition, working order and repair (including without
limitation, carpet, wall-covering, doors, plumbing and other
fixtures exclusively serving the Premises, equipment, alterations
and improvements whether installed by Landlord or Tenant). In the
event that any repairs, maintenance or replacements are required,
Tenant shall promptly arrange for the same either through (a)
Landlord for such reasonable charges as Landlord may from time to
time establish, or (b) contractors that Landlord generally uses at
the Property, or (c) other contractors approved in writing in
advance by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed. If Tenant does not promptly make
such arrangements, Landlord may, but need not, make such repairs,
maintenance and replacements on not less than ten (10) days prior
written notice to Tenant and the reasonable costs paid or incurred
by Landlord therefor (plus Landlord's customary mark up) shall be
reimbursed by Tenant promptly after request by Landlord. Except to
the extent caused by the negligence or willful misconduct of
Landlord, Tenant shall indemnify Landlord and pay for any repairs,
maintenance and replacements to areas of the Property outside the
Premises, to the extent the need therefore is caused as a result of
moving any furniture, fixtures, or other property to or from the
Premises, or by Tenant or its employees, agents, contractors, or
visitors (notwithstanding anything to the contrary contained in
this Lease).
-
- Except as provided in Article 7(A) or for damage covered under
Article 8, Landlord shall maintain, in compliance with Law, in good
condition, working order and repair and in a first class manner,
the Building structure, roof, floor slab, foundations, exterior
windows, common areas of the Property, and the Systems and
Equipment. Costs incurred by Landlord hereunder may be included in
Operating Expenses to the extent permitted by Article 3 above.
Landlord shall perform its obligations under this Section 7(B) in a
diligent manner and shall make commercially reasonable efforts to
not unreasonably interfere with Tenant's access to or use of the
Premises during such repairs, provided that Landlord shall not be
required to pay overtime.
-
Casualty
Damage
-
Subject to Article 6 and the remainder of this
Article 8, Landlord shall use available insurance proceeds (plus
the amount of deductibles under the applicable insurance policies)
to restore, as soon as reasonably possible, the Premises or any
common areas of the Property that are damaged by fire or other
casualty during the Term. Such restoration shall be to
substantially the condition prior to the casualty, except for
modifications required by zoning and building codes and other Laws
or by any Holder, any other modifications to the common areas
reasonably deemed desirable by Landlord (provided access to the
Premises is not materially impaired), and except that Landlord
shall not be required to repair or replace any of Tenant's
furniture, furnishings, fixtures or equipment, or any Alterations,
or improvements in excess of any work performed or paid for by
Landlord under the terms, covenants and conditions of any separate
agreement therefor signed by the parties hereto. Landlord shall not
be liable for any inconvenience or annoyance to Tenant or its
visitors, or injury to Tenant's business resulting in any way from
such damage or the repair thereof. However, Landlord shall allow
Tenant an abatement of Rent during the time and proportionate to
the extent the Premises are inaccessible or are unfit for occupancy
for the purposes permitted under this Lease and not occupied by
Tenant as a result thereof. Notwithstanding the foregoing, Landlord
may terminate this Lease by giving Tenant written notice of
termination within sixty (60) days after the date of damage (such
termination notice to include a termination date providing at least
ninety (90) days for Tenant to vacate the Premises), if the
Property shall be damaged by fire or other casualty such that: (a)
repairs to the Premises and access thereto cannot reasonably be
completed within two hundred seventy (270) days after the casualty
without the payment of overtime or other premiums, (b) more than
twenty-five percent (25%) of the Premises is affected by the damage
and fewer than twenty-four (24) months remain in the Term, or any
material damage occurs to the Premises during the last twelve (12)
months of the Term, (c) any Holder shall require that the insurance
proceeds or any portion thereof be used to retire the Mortgage
debt, or the damage is not fully covered by Landlord's insurance
policies or the insurance policies required to be carried by
Landlord under this Lease (excluding the deductible), or (d) the
cost of the repairs, alterations, restoration or improvement work
would exceed twenty-five percent (25%) of the replacement value of
the Property, or (e) the nature of such work would make termination
of this Lease necessary or convenient and Landlord also terminates
the leases of all other similarly situated tenants. Tenant may
likewise terminate this Lease in the event that Landlord's repairs
to the Premises and access thereto are not completed within two
hundred seventy (270) days after the date of the casualty. Tenant
agrees that Landlord's obligation to restore, the abatement of Rent
provided herein, and the termination option given to Tenant in the
preceding sentence shall be Tenant's sole recourse in the event of
such damage, and waives any other rights Tenant may have under any
applicable Law to terminate the Lease by reason of damage to the
Premises or Property. Tenant acknowledges that this Article
represents the entire agreement between the parties respecting
casualty damage to the Premises or the Property.
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Insurance,
Subrogation, and Waiver of Claims
-
-
-
- Tenant shall not conduct or permit to be conducted any
activity, or place or permit to be placed any equipment or other
item in or about the Premises, the Building or the Property, which
will in any way increase the rate of property insurance or other
insurance on the Property. If any increase in the rate of property
or other insurance is due to any activity, equipment or other item
of Tenant, then (whether or not Landlord has consented to such
activity, equipment or other item) Landlord will promptly notify
Tenant in writing and, if Tenant does not promptly cease such
activity, Tenant shall pay as additional rent due hereunder the
amount of such increase. The statement of any applicable insurance
company or insurance rating organization (or other organization
exercising similar functions in connection with the prevention of
fire or the correction of hazardous conditions) that an increase is
due to any such activity, equipment or other item shall be
conclusive evidence thereof.
-
- Throughout the Term, Tenant shall obtain and maintain the
following insurance coverages written with companies with an A.M.
Best A-,X or better rating and S&P rating of at least A-:
-
-
- Commercial General Liability ("CGL") insurance (written on an
occurrence basis) with limits not less than One Million Dollars
($1,000,000) combined single limit per occurrence, Two Million
Dollar ($2,000,000) annual general aggregate (on a per location
basis), Two Million Dollars ($2,000,000) products/completed
operations aggregate, One Million Dollars ($1,000,000) personal and
advertising injury liability, Fifty Thousand Dollars ($50,000) fire
damage legal liability, and Five Thousand Dollars ($5,000) medical
payments. CGL insurance shall be written on ISO occurrence form CG
00 01 96 (or a substitute form providing equivalent or broader
coverage) and shall cover liability arising from Premises,
operations, independent contractors, products-completed operations,
personal injury, advertising injury and liability assumed under an
insured contract.
-
- Workers Compensation insurance as required by the applicable
state law, and Employers Liability insurance with limits not less
than Five Hundred Thousand Dollars ($500,000) for each accident,
Five Hundred Thousand Dollars ($500,000) disease policy limit, and
Five Hundred Thousand Dollars ($500,000) disease each
employee.
-
- Intentionally deleted.
-
- Umbrella/Excess Insurance coverage on a follow form basis in
excess of the CGL, Employers Liability and Commercial Auto Policy
with limits not less than Five Million Dollars ($5,000,000) per
occurrence and Five Million Dollars ($5,000,000) annual
aggregate.
-
- All Risk Property Insurance covering Tenant's property,
furniture, furnishings, fixtures, improvements, and equipment
located at the Building.
-
- Builder's Risk (or Building Constructions) insurance during the
course of construction of any Alteration, including during the
performance of Tenant's Work and until completion thereof. Such
insurance shall be on a form covering Landlord, Landlord's
architects, Landlord's contractor or subcontractors, Tenant and
Tenant's contractors, as their interest may appear, against loss or
damage by fire, vandalism, and malicious mischief and other such
risks as are customarily covered by the so-called "broad form
extended coverage endorsement" upon all Alterations or Tenant's
Work in place and all materials stored at the Premises, and all
materials, equipment, supplies and temporary structures of all
kinds incident to Alterations or Tenant's Work and builder's
machinery, tools and equipment, all while forming a part of, or on
the Premises, or when adjacent thereto, while on drives, sidewalks,
streets or alleys, all on a completed value basis for the full
insurable value at all times. Said Builder's Risk Insurance shall
contain an express waiver of any right of subrogation by the
insurer against Landlord, its agents, employees and
contractors.
- Landlord and Landlord's agents shall be endorsed on each policy
as additional insureds as it pertains to the CGL, Umbrella, and
Auto policy, and coverage shall be primary and noncontributory.
Landlord shall be a loss payee on the Property policy in respect of
Tenant's improvements. All insurance shall (1) contain an
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured may have waived its right of
action against any party prior to the occurrence of a loss (Tenant
hereby waiving its right of action and recovery against and
releasing Landlord and Landlord's agents, employees, contractors,
invitees, successors and assigns, from any and all liabilities,
claims and losses for which they may otherwise be liable to the
extent Tenant is covered by insurance carried or required to be
carried under this Lease); (2) provide that the insurer thereunder
waives all right of recovery by way of subrogation against Landlord
and Landlord's representatives in connection with any loss or
damage covered by such policy (and Tenant shall provide evidence of
such waiver); (3) be reasonably acceptable in form and content to
Landlord; and (4) contain an endorsement prohibiting cancellation,
failure to renew, reduction of amount of insurance or change in
coverage without the insurer first giving Landlord thirty (30)
days' prior written notice of such proposed action. Landlord
reserves the right from time to time to reasonably require higher
minimum amounts or different types of insurance. Tenant shall
deliver an ACORD 25 certificate with respect to all liability and
personal property insurance and an ACORD 28 certificate with
respect to all commercial property insurance and receipts
evidencing payment therefor (and, upon request, copies of all
required insurance policies, including endorsements and
declarations) to Landlord on or before the Commencement Date and at
least annually thereafter. If Tenant fails to provide evidence of
insurance required to be provided by Tenant hereunder, prior to
commencement of the Lease Term and thereafter within thirty (30)
days following Landlord's request during the Term (and in any event
within thirty (30) days prior to the expiration date of any such
coverage, any other cure or grace period provided in this Lease not
being applicable hereto), Landlord shall be authorized (but not
required) after ten (10) days' prior notice to procure such
coverage in the amount stated with all costs thereof to be
chargeable to Tenant and payable as additional rent upon written
invoice therefor.
-
- Landlord agrees to carry and maintain all-risk property
insurance (with replacement cost coverage) covering one hundred
percent (100%) of the replacement cost of the Building and
Landlord's property and such other insurance in amounts and types
that a reasonably prudent owner of a Class A office building
similar to the Building and located in the central business
district of Chicago, Illinois would carry. Landlord hereby waives
its right of recovery against and releases Tenant and Tenant's
agents, employees, contractors, invitees, subtenants, successors
and assigns from any and all liabilities, claims and losses for
which Tenant and/or such other parties may otherwise be liable to
the extent Landlord is covered by insurance carried or required to
be carried by Landlord under this Lease. Landlord shall secure a
waiver of subrogation endorsement from its insurance carrier from
all claims against Tenant and such other parties. Landlord also
agrees to carry and maintain commercial general liability insurance
in limits it reasonably deems appropriate (but in no event less
than the limits required by Tenant pursuant to Section 9(B)).
Landlord may elect to carry such other additional insurance or
higher limits as it reasonably deems appropriate. Tenant
acknowledges that Landlord shall not carry insurance on, and shall
not be responsible for damage to, Tenant's personal property or any
Alterations (including, Tenant's Work), and that Landlord shall not
carry insurance against, or be responsible for any loss suffered by
Tenant due to, interruption of Tenant's business.
-
Condemnation
-
If (a) the whole or any material part of the
Premises or the Property shall be taken by power of eminent domain
or condemned by any competent authority for any public or
quasi-public use or purpose; (b) any adjacent property or street
shall be so taken or condemned, or reconfigured or vacated by such
authority in such manner as to require the use, material
reconstruction or material remodeling of any part of the Premises
or the Property, or (c) Landlord shall grant a deed or other
instrument in lieu of such taking by eminent domain or
condemnation, then Landlord shall have the option to terminate this
Lease upon ninety (90) days notice, provided such notice is given
no later than one hundred eighty (180) days after the date of such
taking, condemnation, reconfiguration, vacation, deed or other
instrument. Tenant shall have reciprocal termination rights if the
whole or any material part of the Premises is permanently taken or
if access to the Premises is permanently and materially impaired.
Landlord shall be entitled to receive the entire award or payment
in connection therewith, except that Tenant shall have the right to
file any separate claim available to Tenant for any taking of
Tenant's personal property and of fixtures belonging to Tenant and
removable by Tenant upon expiration of the Term and for moving
expenses (so long as such claim does not diminish the award
available to Landlord or any Holder, and such claim is payable
separately to Tenant). All Rent shall be apportioned as of the date
of such termination, or the date of such taking, whichever shall
first occur. Rent shall be proportionately abated if any part of
the Premises shall be taken and this Lease shall not be so
terminated.
-
Return of
Possession
-
At the expiration or earlier termination of this
Lease or Tenant's right of possession of the Premises, Tenant shall
surrender possession of the Premises in the condition required
under Article 7, ordinary wear and tear and damage from casualty
and condemnation excepted, and shall surrender all keys, any key
cards, and any parking stickers or cards, to Landlord, and advise
Landlord as to the combination of any locks or vaults then
remaining in the Premises, and shall remove all trade fixtures,
equipment and personal property belonging to Tenant. All
improvements, fixtures and other items in or upon the Premises
(except trade fixtures, equipment and personal property belonging
to Tenant), whether installed by Tenant or Landlord, shall be
Landlord's property and shall remain upon the Premises, all without
compensation, allowance or credit to Tenant. However, by giving
Tenant notice prior to the date of termination, Landlord may
require Tenant to promptly remove at termination any or all of the
foregoing items as are designated in such notice and restore the
Premises to the condition prior to the installation of such items;
provided Landlord shall not require removal of customary office
improvements installed pursuant to the terms of this Lease or any
improvements existing in the Premises on the date of this Lease. If
Tenant shall fail to perform any repairs or restoration, or fail to
remove any items from the Premises or the Property required
hereunder, Landlord may do so, and Tenant shall pay Landlord the
cost thereof (including Landlord's customary mark up) within thirty
(30) days after demand. Any and all property that may be removed
from the Premises or the Property by Landlord pursuant to any
provisions of this Lease or any Law, to which Tenant is or may be
entitled, may be handled, removed or stored in a commercial
warehouse or otherwise by Landlord at Tenant's risk, cost or
expense, and Landlord shall in no event be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to
Landlord, upon demand, any and all expenses incurred in any removal
and all storage charges as long as the same is in Landlord's
possession or under Landlord's control. Any property, which is not
removed from the Premises or which is not retaken from storage by
Tenant within thirty (30) days after expiration or earlier
termination of this Lease or of Tenant's right to possession of the
Premises, shall, at Landlord's option, be conclusively presumed to
have been abandoned and thus to have been conveyed by Tenant to
Landlord as if by bill of sale without payment by Landlord. Unless
prohibited by applicable Law, Landlord shall have a lien against
such property for the costs incurred in removing and storing the
same.
-
Holding
Over
-
Unless Landlord expressly agrees otherwise in
writing, if Tenant shall retain possession of the Premises or any
part thereof after expiration or earlier termination of this Lease,
Tenant shall pay Landlord one hundred fifty percent (150%) of the
amount of Rent then applicable (or the highest amount permitted by
Law, whichever shall be less) on a per month basis without
reduction for partial months during the holdover. In addition, if
Tenant retains possession of the Premises or any part thereof for
more than thirty (30) days after the expiration or earlier
termination of this Lease, Tenant shall be responsible for all
consequential damages sustained by Landlord on account of Tenant
holding over. The foregoing provisions shall not serve as
permission for Tenant to holdover, nor serve to extend the Term
(although Tenant shall remain bound to comply with all provisions
of this Lease until Tenant vacates the Premises, and shall be
subject to the provisions of Article 11). The provisions of this
Article do not waive Landlord's right of re-entry or right to
regain possession by actions at law or in equity or any other
rights hereunder, and any receipt of payment by Landlord shall not
be deemed a consent by Landlord to Tenant's remaining in possession
or be construed as creating or renewing any lease or right of
tenancy between Landlord and Tenant.
-
No
Waiver
-
No provision of this Lease will be deemed waived
by either party unless expressly waived in writing signed by the
waiving party. No waiver shall be implied by delay or any other act
or omission of either party. No waiver by either party of any
provision of this Lease shall be deemed a waiver of such provision
with respect to any subsequent matter relating to such provision,
and Landlord's consent or approval respecting any action by Tenant
shall not constitute a waiver of the requirement for obtaining
Landlord's consent or approval respecting any subsequent action.
Acceptance of Rent by Landlord shall not constitute a waiver of any
breach by Tenant of any term or provision of this Lease. No
acceptance of a lesser amount than the Rent herein stipulated shall
be deemed a waiver of Landlord's right to receive the full amount
due, nor shall any endorsement or statement on any check or payment
or any letter accompanying such check or payment be deemed an
accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the full
amount due. The acceptance of Rent or of the performance of any
other term or provision from any Person other than Tenant,
including any Transferee, shall not constitute a waiver of
Landlord's right to approve any Transfer.
-
Attorneys' Fees
and Jury Trial
-
In the event of any litigation between the
parties, the prevailing party shall be entitled to obtain, as part
of the judgment, all reasonable attorneys' fees, costs and expenses
incurred in connection with such litigation, except as may be
limited by applicable Law. In the interest of obtaining a speedier
and less costly hearing of any dispute, the parties hereby each
irrevocably waive the right to trial by jury.
-
Personal Property
Taxes, Rent Taxes and Other Taxes
-
Tenant shall pay prior to delinquency all taxes,
charges or other governmental impositions assessed against or
levied upon Tenant's fixtures, furnishings, equipment and personal
property located in the Premises, and any Tenant Work to the
Premises which is deemed to be personal property by any
governmental agency or subdivision thereof on the express condition
that Operating Expenses do not include any taxes, charges or other
governmental impositions assessed against or levied upon any other
tenant's fixtures, furnishings, equipment and personal property
located in the Building or any tenant improvement work to such
other tenants' leased premises which are deemed to be personal
property by any governmental agency or subdivision thereof.
Whenever possible, Tenant shall cause all such items to be assessed
and billed separately from the property of Landlord. In the event
any such items shall be assessed and billed with the property of
Landlord, Tenant shall pay Landlord its share of such taxes,
charges or other governmental impositions within thirty (30) days
after Landlord delivers a statement and a copy of the assessment or
other documentation showing the amount of such impositions
applicable to Tenant's property. Tenant shall pay any rent tax or
sales tax, service tax, transfer tax or value added tax, or any
other applicable tax on Rent or services provided herein or
otherwise respecting this Lease.
-
Subordination,
Attornment and Mortgagee Protection
-
This Lease is subject and subordinate to all
Mortgages now or hereafter placed upon the Property, and all other
encumbrances and matters of public record applicable to the
Property provided that, subject to the remainder of this Article 16
and to any separate Subordination, Non-Disturbance and Attornment
Agreement executed by Landlord, Tenant and Landlord's Holder
(defined below), such Holder agrees to accept this Lease and not
disturb Tenant's occupancy so long as Tenant does not default and
fail to cure within the time permitted hereunder. If any
foreclosure proceedings are initiated by any Holder, in the event
of a non-judicial foreclosure, or a deed in lieu is granted (or if
any ground lease is terminated), Tenant agrees to attorn and pay
Rent to any Holder which is a successor to Landlord hereunder or a
purchaser at a foreclosure sale and to execute and deliver any
instruments necessary or appropriate to evidence or effectuate such
attornment provided such Holder agrees not to disturb Tenant's
occupancy as stated above in this Article 16. However, in the event
of attornment, no Holder shall be: (i) liable for any act or
omission of Landlord, or subject to any offsets or defenses which
Tenant might have against Landlord (prior to such Holder becoming
Landlord under such attornment); (ii) liable for any
security deposit or bound by any prepaid Rent more than thirty (30)
days in advance not actually received by such Holder; (iii)
bound by any future modification of this Lease not consented to by
such Holder, except that Holder's consent shall not be required for
any modification (a) arising out of the exercise of any of Tenant's
extension or contraction rights or other rights expressly set forth
in this Lease, (b) confirming the commencement or expiration dates
of this Lease, or (c) relating to any assignment or sublease
permitted under this Lease without Landlord's consent; (iv)
be liable for any accrued obligation, act or omission of any prior
landlord (including, without limitation, Landlord), whether prior
to or after foreclosure or termination of the superior lease, as
the case may be, other than accrued obligations of a continuing
nature but then only to the extent that (A) such act or omission is
not personal to Landlord; (B) such act is a default under the Lease
of which Holder was given prior written notice, (C) such default is
continuing after Holder takes possession over or title to the
Premises or the Property, (D) such default is susceptible to cure
by Holder, and (E) Holder is given a reasonable opportunity to cure
after Holder takes possession over or title to the Premises or the
Property, provided, however, Holder shall in no event (1) be
responsible for any construction allowances provided to Tenant, or
(2) be responsible for any consequential or punitive damages by
reason of any such defaults, or (3) be subject to any offsets or
defenses that Tenant might have against any prior landlord
(including Landlord) except for offsets expressly provided for in
this Lease, or (4) be obligated or liable with respect to any
representations, warranties or indemnities contained in the Lease;
(v) be bound by any covenant to undertake or complete any
improvement to the Property or the Premises, or to reimburse or pay
Tenant for the cost of any such improvement; (vi) be
required to perform or provide any services not related to
possession or quiet enjoyment of the Premises; or (vii) be
required to abide by any provisions for the diminution or abatement
of rent, other than abatement of rent to which Tenant is entitled
pursuant to the terms of this Lease as a consequence of casualty,
condemnation, or interruption of services. " Holder "
shall mean the holder of any Mortgage at the time in question, and
where such Mortgage is a ground lease, such term shall refer to the
ground lessor. " Mortgage " shall mean all mortgages,
deeds of trust, ground leases and other such encumbrances now or
hereafter placed upon the Property or any part thereof and all
renewals, modifications, consolidations, replacements or extensions
thereof. Any Holder may elect to make this Lease prior to the lien
of its Mortgage, by written notice to Tenant, and if the Holder of
any prior Mortgage shall require, this Lease shall be prior to any
subordinate Mortgage. Tenant shall execute such documentation as
Landlord may reasonably request from time to time, in order to
confirm the matters set forth in this Article in recordable form.
In the event of any default on the
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