OFFICE LEASE
between
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO,
NOT PERSONALLY, BUT AS TRUSTEE UNDER TRUST NO. 66078
(Landlord)
and
KANBAY INCORPORATED
---------------------------------
---------------------------------
(Tenant)
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TABLE OF CONTENTS
OFFICE LEASE
Article Title Page
------- ----- ----
1 Definitions 1
2 Premises 2
3 Term 2
4 Rental 2
5 Security Deposit 5
6 Use of Premises 5
7 Utilities and Services 6
8 Maintenance and Repairs 7
9 Alterations, Additions and Improvements 8
10 Indemnification and Insurance 9
11 Damage or Destruction 10
12 Condemnation 11
13 Relocation 11
14 Assignment and Subletting 11
15 Default and Remedies 13
16 Attorneys' Fees; Costs of Suits 15
17 Subordination and Attornment 15
18 Quiet Enjoyment 16
19 Rules and Regulations 16
20 Estoppel Certificates 16
21 Entry by Landlord 17
22 Landlord's Lease Undertakings-Exculpation from 17
Personal Liability; Transfer of Landlord's Interest
23 Holdover Tenancy 18
24 Notices 18
25 Brokers 18
26 Electronic Services 18
27 Miscellaneous 20
EXHIBITS
Exhibit A Floor Plan
Exhibit B Work Letter Agreement
Exhibit C Rules and Regulations
Exhibit D Intentionally Omitted
Exhibit E Suite Acceptance Agreement
Exhibit F Letter of Credit
Exhibit G Expansion Space
Exhibit H HVAC Specifications
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Net
OFFICE LEASE
THIS OFFICE LEASE ("Lease"), dated March 27, 1998, is made and entered into
by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not
personally, but as Trustee under Trust No. 66078 ("Landlord") and KANBAY
INCORPORATED, an Illinois corporation ("Tenant") upon the following terms and
conditions:
ARTICLE I - DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings specified herein;
1.01 BUILDING. The term "Building" shall mean that certain office
building located at 6400 Shafer Court in Rosemont, Illinois, commonly known as
6400 SHAFER together with any related land, improvements, parking facilities,
common areas, driveways, sidewalks and landscaping.
1.02 PREMISES. The term "Premises" shall mean Suite 100 in the
Building, as more particularly outlined on the drawing attached hereto as
Exhibit A and incorporated herein by reference. As used herein, "Premises" shall
not include any storage area in the Building, which shall be leased or rented
pursuant to separate agreement.
1.03 RENTABLE AREA OF THE PREMISES. The term "Rentable Area of the
Premises" shall mean 9,230 square feet, which Landlord and Tenant have
stipulated as the Rentable Area of the Premises. Tenant acknowledges that the
Rentable Area of the Premises includes the usable area, without deduction for
columns or projections, multiplied by a load factor to reflect a share of
certain areas, which may include lobbies, corridors, mechanical, utility,
janitorial, boiler and service rooms and closets, restrooms and other public,
common and service areas of the Building.
1.04 LEASE TERM. The term "Lease Term" shall mean the period between
the Commencement Date and the Expiration Date (as such terms are hereinafter
defined), unless sooner terminated as otherwise provided in this Lease.
1.05 COMMENCEMENT DATE. Subject to adjustment as provided in Article
3, the term "Commencement Date" shall mean April 1, 1998.
1.06 EXPIRATION DATE. Subject to adjustment as provided in Article 3,
the term "Expiration Date" shall mean March 31, 2003.
1.07 BASE RENT. Subject to adjustment as provided in Article 4, the
term "Base Rent" shall mean the amounts set forth in Insert No. 1 of the Rider
attached hereto and made an integral part hereof (the "Rider").
1.08 TENANT'S PERCENTAGE SHARE. The term "Tenant's Percentage Share"
shall mean five and fifty-six hundredths percent (5.56%) with respect to
Operating Expenses (as such term is hereinafter defined). Landlord may
reasonably redetermine Tenant's Percentage Share from time to time to reflect
reconfigurations, additions or modifications to the Building.
1.09 SECURITY DEPOSIT. The term "Security Deposit" shall mean
Twenty-One Thousand Dollars ($21,000.00) and the letter of credit described in
Insert No. 2 of the Rider.
1.10 TENANT'S PERMITTED USE. The term "Tenant's Permitted Use" shall
mean general office use and no other use.
1.11 BUSINESS HOURS. The term "Business Hours" shall mean the hours
of 8:00 A.M. to 6:00 P.M., Monday through Friday (federal and state holidays
excepted). Holidays are defined as the following: New Years Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day, and to the
extent of utilities or services provided by union members engaged at the
Building, such other holidays observed by such unions.
1.12 LANDLORD'S ADDRESS FOR NOTICES. The term "Landlord's Address for
Notices" shall mean Heitman Properties Ltd., 6400 Shafer Court, Rosemont,
Illinois 60018, Attn: Property Manager, with a copy to Heitman Properties Ltd.,
180 North LaSalle Street, Suite 3600, Chicago, Illinois 60601, Attn: Property
Management.
1.13 TENANT'S ADDRESS FOR NOTICES. The term "Tenant's Address for
Notices" shall mean ____________________________________________________________
________________________________________________________________________________
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1.14 BROKER. The term "Broker" shall mean Heitman Properties Ltd. and
Julien J. Studley, Inc. _______________________________________________________.
1.15 ______________________________________________________________.
ARTICLE II - PREMISES
2.01 LEASE OF PREMISES. Landlord hereby leases the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord, upon all of the
terms, covenants and conditions contained in this Lease. On the Commencement
Date described herein, Landlord shall deliver the Premises to Tenant in
substantial conformance with the Work Letter Agreement attached hereto as
Exhibit B.
2.02 ACCEPTANCE OF PREMISES. Tenant acknowledges that Landlord has
not made any representation or warranty with respect to the condition of the
Premises or the Building or with respect to the suitability or fitness of either
for the conduct of Tenant's Permitted Use or for any other purpose. Prior to
Tenant's taking possession of the Premises, Landlord or its designee and Tenant
will walk the Premises for the purpose of reviewing the condition of the
Premises (and the condition of completion and workmanship of any tenant
improvements which Landlord is required to construct in the Premises pursuant to
this Lease); after such review, Tenant shall execute a Suite Acceptance Letter,
in the form of Exhibit E attached hereto, accepting the Premises. Except as is
expressly set forth in this Section 2.02 or the Work Letter Agreement attached
hereto (the "Work Letter"), if any, or as may be expressly set forth in Suite
Acceptance Letter, Tenant agrees to accept the Premises in its "as is" said
physical condition without any agreements, representations, understandings or
obligations on the part of Landlord to perform any alterations, repairs or
improvements (or to provide any allowance for same).
ARTICLE III - TERM
3.01 Except as otherwise provided in this Lease (including, without
limitation, the Work Letter and Article II), the Lease Term shall be for the
period described in Section 1.04 of this Lease, commencing on the Commencement
Date described in Section 1.05 of this Lease and ending on the Expiration Date
described in Section 1.06 of this Lease; provided, however, that, if for any
reason, Landlord is unable to deliver possession of the Premises on the date
which otherwise would be the Commencement Date, then Landlord shall not be
liable for any damage caused thereby, nor shall the Lease be void or voidable,
but, rather, the Lease Term shall commence upon, and the Commencement Date shall
be the date that possession of the Premises is so tendered to Tenant with the
initial Part of the Work substantially completed pursuant to Section 5 of the
Work Letter (except for Tenant-caused delays which shall not be deemed to delay
commencement of the Lease Term), and, unless Landlord elects otherwise, the
Expiration Date described in Section 1.06 of this Lease shall be extended by
an equal number of days. Landlord represents that, as of the date of this Lease,
the Premises is vacant.
ARTICLE IV - RENTAL
4.01 DEFINITIONS. As used herein,
(A) "Operating Expenses" shall mean all costs, fees,
disbursements and expenses paid or incurred by or on behalf of Landlord in the
operation, ownership, maintenance, insurance, management, replacement and repair
of the Building including without limitation:
(i) The aggregate amount of all real estate taxes,
assessments (whether they be general or special), sewer rents and charges,
transit taxes, taxes based upon the receipt of rent and any other federal, state
or local governmental charge, general, special, ordinary or extraordinary (but
not including income or franchise taxes, capital stock, inheritance, estate,
gift, or any other taxes imposed upon or measured by Landlord's gross income or
profits, unless the same shall be imposed in lieu of real estate taxes or other
ad valorem taxes), which Landlord shall pay or become obligated to pay in
connection with the Building, or any part thereof ("Taxes"). Taxes shall also
include all fees and costs, including attorneys' fees, appraisals and
consultants' fees, incurred by Landlord in seeking to obtain a reassessment,
reduction of, or a limit on the increase in, any Taxes, regardless of whether
any reduction or limitation is obtained. Taxes shall be appropriately reduced
(or refunded to Tenant, as applicable) with respect to any refunds received by
Landlord relating to Taxes paid by Tenant. Taxes for any calendar year shall be
Taxes which are due for payment or paid in such year, rather than Taxes which
are assessed or become a lien during such year. Taxes shall include any tax,
assessment, levy, imposition or charge imposed upon Landlord and measured by or
based in whole or in part upon the Building or the rents or other income from
the Building, to the extent that such items would be payable if the Building was
the only property of Landlord subject to same and the income received by
Landlord from the Building was the only income of Landlord. Taxes shall also
include any personal property taxes imposed upon the furniture, fixtures,
machinery, equipment, apparatus, systems and appurtenances of Landlord used in
connection with the Building.
(ii) Premiums for property, casualty, liability, rent
interruption or other types of insurance carried by Landlord.
(iii) Salaries, wages and other amounts paid or payable
for personnel including the Building manager, superintendent, operation and
maintenance staff, and other employees of Landlord involved in the maintenance
and operation of the Building including contributions and premiums towards
fringe benefits,
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unemployment, disability and worker's compensation insurance, pension plan
contributions and similar premiums and contributions and the total charges of
any independent contractors or property managers engaged in the operation,
repair, care, maintenance and cleaning of any portion of the Building,
reasonably adjusted to the extent such persons work at other properties in
addition to the Building
(iv) Cleaning expenses, including without limitation
janitorial services, window cleaning, and garbage and refuse removal.
(v) Landscaping expenses, including without limitation
irrigating, trimming, mowing, fertilizing, seeding, and replacing plants.
(vi) Heating, ventilating, air conditioning and
steam/utilities expenses, including fuel, gas, electricity, water, sewer,
telephone, and other services.
(vii) Subject to the provisions of Section 4.01(A)(xiii)
below, the cost of maintaining, operating, repairing and replacing components of
equipment or machinery, including without limitation heating, refrigeration,
ventilation, electrical, plumbing, mechanical, elevator, escalator, sprinklers,
fire/life safety, security and energy management systems, including service
contracts, maintenance contracts, supplies and parts.
(viii) Other items of repair or maintenance of elements of
the Building.
(ix) The costs of policing, security and supervision of
the Building.
(x) Fair market rental and other costs with respect to
the management office for the Building.
(xi) The cost of the rental of any machinery or equipment
and the cost of supplies used in the maintenance and operation of the Building.
(xii) Audit fees and the cost of accounting services
incurred in the preparation of statements referred to in this Lease and
financial statements, and in the computation of the rents and charges payable by
tenants of the Building.
(xiii) Capital expenditures (a) made primarily to reduce
Operating Expenses, or to comply with any laws or other governmental
requirements, or (b) for replacements (as opposed to additions or new
improvements) of non-structural items located in the common areas of the
property required to keep such areas in good condition; provided, all such
permitted capital expenditures (together with reasonable financing charges)
shall be amortized for purposes of this Lease over the shorter of (i) their
useful lives, or (ii) the period during which the reasonably estimated savings
in Operating Expenses equals the expenditures.
(xiv) Legal fees and expenses, excluding fees for disputes
with tenants, negotiating leases and financing the Building.
(xv) Payments under any easement, operating agreement,
declaration, restrictive covenant, or instrument pertaining to the sharing of
costs in any planned development.
(xvi) A fee for the administration and management of the
Building as reasonably determined by Landlord from time to time (not to exceed
5% of gross revenues of the Building during the first five years of the Lease
Term).
Operating Expenses shall not include costs of alteration of the premises of
tenants of the Building, depreciation charges, interest and principal payments
on mortgages, ground rental payments, real estate brokerage and leasing
commissions, expenses incurred in enforcing obligations of tenants of the
Building, salaries and other compensation of executive officers of the managing
agent of the Building senior to the Building manager, costs of any special
service provided to any one tenant of the Building but not to tenants of the
Building generally, and costs of marketing or advertising the Building. See
Insert No. 3 of the Rider.
(B) If the Building does not have ninety-five percent (95%)
occupancy during an entire calendar year, then the variable cost component of
"Operating Expenses" shall be equitably adjusted so that the total amount of
Operating Expenses equals the total amount which would have been paid or
incurred by Landlord had the Building been ninety-five percent (95%) occupied
for the entire calendar year. In no event shall Landlord be entitled to receive
from Tenant and any other tenants in the Building an aggregate amount in excess
of actual Operating Expenses as a result of the foregoing provision. Landlord
can adjust taxes to the extent that Landlord can reasonably demonstrate that the
Taxes fluctuated based upon occupancy.
4.02 BASE RENT. During the Lease Term, Tenant shall pay to Landlord
as rental for the Premises the Base Rent described in Section 1.07 above,
subject to the following annual adjustments (herein called the "Rent
Adjustments"):
(A)
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(B) During each calendar year, the Base Rent payable by Tenant
to Landlord, shall be increased by Tenant's Percentage Share of Operating
Expenses paid or incurred by Landlord during such year (the "Operating
Expense Adjustment").
4.03 ADJUSTMENT PROCEDURE; ESTIMATES. The Operating Expense
Adjustment specified in Section 4.02(B) shall be determined and paid as follows:
(A) During each calendar year, Landlord shall give Tenant
written notice of its reasonable estimate of any increased amounts payable under
Section 4.02(B) for that calendar year. On or before the first day of each
calendar month during the calendar year, Tenant shall pay to Landlord
one-twelfth (1/12th) of such estimated amounts; provided, however, that, not
more often that quarterly, Landlord may, by written notice to Tenant, revise its
estimate for such year, and subsequent payments by Tenant for such year shall be
based upon such revised estimate.
(B) Within one hundred twenty (120) days after the close of
each calendar year or as soon thereafter as is practicable, Landlord shall
deliver to Tenant a statement of that year's Operating Expenses, and the actual
Operating Expense Adjustment to be made pursuant to Section 4.02(B) for such
calendar year, as determined by Landlord (the "Landlord's Statement") and such
Landlord's Statement shall be binding upon Tenant, except as provided in Section
4.04 below. If the amount of the actual Operating Expense Adjustment is more
that the estimated payments for such calendar year made by Tenant, Tenant shall
pay the deficiency to Landlord within 30 days after receipt of Landlord's
Statement. If the amount of the actual Operating Expense Adjustment is less than
the estimated payments for such calendar year made by Tenant, any excess shall
be credited against Rent (as hereinafter defined) next payable by Tenant under
this Lease or, if the Lease Term has expired, any excess shall be paid to
Tenant. No delay in providing the statement described in this subparagraph (B)
shall act as a waiver of Landlord's right to payment under Section 4.02(H)
above.
(C) If this Lease shall terminate on a day other than the end
of a calendar year, the amount of the Operating Expense Adjustment to be paid
pursuant to Section 4.02(B) that is applicable to the calendar year in which
such termination occurs shall be prorated on the basis of the number of days
from January 1 of the calendar year to the termination date bears to 365. The
termination of this Lease shall not affect the obligations of Landlord and
Tenant pursuant to Section 4.03(B) to be performed after such termination.
4.04 REVIEW OF LANDLORD'S STATEMENT. Provided that Tenant is not then
in default beyond any applicable cure period of its obligations to pay Base
Rent, additional rent described in Section 4.02(B), or any other payments
required to be made by it under this Lease and provided further that Tenant
complies with the provisions of this Section 4.04, Tenant shall have the
right, once each calendar year, to reasonably review supporting data for any
portion of a Landlord's Statement (provided, however, Tenant may not have an
audit right to all documentation relating to Building operations as this
would far exceed the relevant information necessary to properly document a
pass-through billing statement, but real estate tax statements, and
information on utilities, repairs, maintenance and insurance and other
expenses included in Operating Expenses will be available), in accordance
with the following procedure:
(A) Tenant shall, within 30 business days after any such
Landlord's Statement is delivered, deliver a written notice to Landlord
specifying Tenant's desire to audit Landlord's Statement, and Tenant shall
simultaneously pay to Landlord all amounts due from Tenant to Landlord as
specified in the Landlord's Statement. Except as expressly set forth in
subsection (C) below, in no event shall Tenant be entitled to withhold, deduct,
or offset any monetary obligation of Tenant to Landlord under the Lease
(including, without limitation, Tenant's obligation to make all payments of Base
Rent and all payments of Tenant's Operating Expense Adjustment) pending the
completion of and regardless of the results of any review of records under this
Section 4.04. The right of Tenant under this Section 4.04 may only be exercised
once for any Landlord's Statement, and if Tenant fails to meet any of the above
conditions as a prerequisite to the exercise of such right, the right of Tenant
under this Section 4.04 for a particular Landlord's Statement shall be deemed
waived.
(B) Tenant acknowledges that Landlord maintains its records for
the Building at Landlord's manager's corporate offices presently located at the
address set forth in Section 1.12 and Tenant agrees that any review of records
under this Section 4.04 shall be at the sole expense of Tenant and shall be
conducted by an independent firm of certified public accountants. Tenant
acknowledges and agrees that any records reviewed under this Section 4.04
constitute confidential information of Landlord, which shall not be disclosed to
anyone other than the accountants performing the review and the principals of
Tenant who receive the results of the review. The disclosure of such information
to any other person, whether or not caused by the conduct of Tenant, shall
constitute a material breach of this Lease.
(C) Any errors disclosed by the review shall be promptly
corrected by Landlord, provided, however, that if Landlord disagrees with any
such claimed errors, Landlord shall have the right to cause another review to be
made by an independent firm of certified public accountants selected by Landlord
but reasonably acceptable to Tenant). In the event that the results of the
review of records by such independent firm reveal that Tenant has overpaid
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obligations for a preceding period, the amount of such overpayment shall be
credited against Tenant's subsequent installment obligations to pay the
estimated Operating Expense Adjustment. In the event that such results show that
Tenant has underpaid its obligations for a preceding period, the amount of such
underpayment shall be paid by Tenant to Landlord with the next succeeding
installment obligation of estimated Operating Expense Adjustment. The fees and
charges of such independent review shall be paid by Tenant unless such review
reveals that Landlord had overcharged Operating Expense Adjustment for the
calendar year under review by more than 5%.
4.05 PAYMENT. The Base Rent described in Section 1.07, as adjusted
in accordance with Section 4.02, shall be payable in advance on the first day of
each calendar month. If the Commencement Date is other than the first day of a
calendar month, the prepaid Base Rent for such partial month shall be prorated
in the proportion that the number of days this Lease is in effect during such
partial month bears to the total number of days in the calendar month. All Rent,
and all other amounts payable to Landlord by Tenant pursuant to the provisions
of this Lease, shall, except as otherwise provided herein, be paid to Landlord,
without notice, demand, abatement, deduction or offset, in lawful money of the
United States at Landlord's office in the Building or to such other person or at
such other place as Landlord may designate from time to time by written notice
given to Tenant. No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent due hereunder shall be deemed to be other than a payment
on account; nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed to effect or evidence an accord and
satisfaction; and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or at law or in equity provided.
4.06 LATE CHARGE; INTEREST. Tenant acknowledges that the late payment
of Base Rent or any other amounts payable by Tenant to Landlord hereunder (all
of which shall constitute additional rental to the same extent as Base Rent)
will cause Landlord to incur administrative costs and other damages, the exact
amount of which would be impracticable or extremely difficult to ascertain.
Landlord and Tenant agree that if Landlord does not receive any such payment on
or before five (5) days after the date the payment is due, Tenant shall pay to
Landlord, as additional rent, interest on the delinquent amounts at the lesser
of the maximum rate permitted by law if any or twelve percent (12%) per annum
from the date due to the date paid.
4.07 ADDITIONAL RENT. For purposes of this Lease, all amounts payable
by Tenant to Landlord pursuant to this Lease, whether or not denominated as
such, shall constitute Base Rent. Any amounts due Landlord shall sometimes be
referred to in this Lease as "Rent".
4.08 RENT TAXES. Notwithstanding anything in Sections 4.01(A)(i) or
4.02(A) to the contrary, Tenant shall pay any rent, sales, service, transfer or
value added tax, or any other applicable tax on the Rent or services herein or
otherwise respecting this Lease (and such taxes shall not be included in
Operating Expenses).
ARTICLE V - SECURITY DEPOSIT
5.01 Upon the execution of this Lease, Tenant shall deposit with
Landlord the Security Deposit described in Section 1.09 above. The Security
Deposit is made by Tenant to secure the faithful performance of all the terms,
convenants and conditions of this Lease to be performed by Tenant. If Tenant
shall default with respect to any covenant or provision hereof, Landlord may
use, apply or retain all or any portion of the Security Deposit to cure such
default or to compensate Landlord for any loss or damage which Landlord may
suffer thereby. If Landlord so uses or applies all or any portion of the
Security Deposit, Tenant shall immediately upon written demand deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to the full
amount hereinabove stated. Landlord shall not be required to keep the Security
Deposit separate from its general accounts and Tenant shall not be entitled to
interest on the Security Deposit. Within thirty (30) days after the expiration
of the Lease Term and the vacation of the Premises by Tenant, the Security
Deposit, or such part as has not been applied to cure the default, shall be
returned to Tenant. See Insert No. 4 of the Rider.
ARTICLE VI - USE OF PREMISES
6.01 TENANTS PERMITTED USE. Tenant shall use the Premises only for
Tenant's Permitted Use as set forth in Section 1.10 above and shall not use or
permit the Premises to be used for any other purpose. Tenant shall, at its sole
cost and expense, obtain all governmental licenses and permits required to allow
Tenant to conduct Tenant's Permitted Use. Landlord disclaims any warranty that
the Premises are suitable for Tenant's use and Tenant acknowledges that it has
had a full opportunity to make its own determination in this regard.
6.02 COMPLIANCE WITH LAWS AND OTHER REQUIREMENTS.
(A) Tenant shall cause the Premises to comply in all material
respects with all laws, ordinances, regulations and directives of any
governmental authority having jurisdiction including, without limitation, any
certificate of occupancy and any law, ordinance, regulation, covenant, condition
or restriction affecting the Building or the Premises which in the future may
become applicable to the Premises (collectively "Applicable Laws").
(B) Tenant shall not use the Premises, or permit the Premises
to be used, in any manner which: (a) violates any Applicable Law; (b) causes or
is reasonably likely to cause damage to the Building or the Premises; (c)
violates a requirement or condition of any fire and extended insurance policy
covering the Building and/or the
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Premises, or increases the cost of such policy; (d) constitutes or is reasonably
likely to constitute a nuisance, annoyance or inconvenience to other tenants or
occupants of the Building or its equipment, facilities or systems; (e)
interferes with, or is reasonably likely to interfere with, the transmission or
reception of microwave, television, radio, telephone or other communication
signals by antennae or other facilities located in the Building; or (f) violates
the Rules and Regulations described in Article XIX. See Insert No. 5 of the
Rider.
6.03 HAZARDOUS MATERIALS.
(A) No Hazardous Materials, as defined herein, shall be
Handled, as also defined herein, upon, about, above or beneath the Premises or
any portion of the Building by or on behalf of Tenant, its subtenants or its
assignees, or their respective contractors, clients, officers, directors,
employees, agents, or invitees. Any such Hazardous Materials so Handled shall be
known as Tenant's Hazardous Materials. Notwithstanding the foregoing, normal
quantities of Tenant's Hazardous Materials customarily used in the conduct of
general administrative and executive office activities (e.g., copier fluids and
cleaning supplies) may be Handled at the Premises without Landlord's prior
written consent. Tenant's Hazardous Materials shall be Handled at all times in
compliance with the manufacturer's instructions therefor and all applicable
Environmental Laws, as defined herein.
(B) Notwithstanding the obligation of Tenant to indemnify
Landlord pursuant to this Lease, Tenant shall, at its sole cost and expense,
promptly take all actions required by any Regulatory Authority, as defined
herein, or necessary for Landlord to make full economic use of the Premises or
any portion of the Building, which requirements or necessity arises from the
Handling of Tenant's Hazardous Materials upon, about, above or beneath the
Premises or any portion of the Building. Such actions shall include, but not be
limited to, the investigation of the environmental condition of the Premises or
any portion of the Building, the preparation of any feasibility studies or
reports and the performance of any cleanup, remedial, removal or restoration
work. Tenant shall take all actions necessary to restore the Premises or any
portion of the Building to the condition existing prior to the introduction of
Tenant's Hazardous Materials, notwithstanding any less stringent standards or
remediation allowable under applicable Environmental Laws. Tenant shall
nevertheless obtain Landlord's written approval prior to undertaking any actions
required by this Section, which approval shall not be unreasonably withheld so
long as such actions would not potentially have a material adverse long-term or
short-term effect on the Premises or any portion of the Building.
(C) Tenant agrees to execute affidavits, representations, and
the like from time to time at Landlord's request stating Tenant's best knowledge
and belief regarding the presence of Hazardous Materials on the Premises.
(D) "Environmental-Laws" means and includes all now and
hereafter existing statutes, laws, ordinances, codes, regulations, rules,
rulings, orders, decrees, directives, policies and requirements by any
Regulatory Authority regulating, relating to, or imposing liability or standards
of conduct concerning public health and safety or the environment.
(E) "Hazardous Materials" means: (a) any material or substance:
(i) which is defined or becomes defined as a "hazardous substance," "hazardous
waste," "infectious waste," "chemical mixture or substance," or "air pollutant"
under Environmental Laws; (ii) containing petroleum, crude oil or any fraction
thereof; (iii) containing polychlorinated biphenyls (PCB's); (iv) containing
asbestos; (v) which is radioactive; (vi) which is infectious; or (b) any other
material or substance displaying toxic, reactive, ignitable or corrosive
characteristics, as all such terms are used in their broadest sense, and are
defined, or become defined by Environmental Laws; or (c) materials which cause a
nuisance upon or waste to the Premises or any portion of the Building.
(F) "Handle," "handle," "Handled," "handled," "Handling," or
"handling" shall mean any installation, handling, generation, storage,
treatment, use, disposal, discharge, release, manufacture, refinement, presence,
migration, emission, abatement, removal, transportation, or any other activity
of any type in connection with or involving Hazardous Materials.
(G) "Regulatory Authority" shall mean any federal, state or
local governmental agency, commission, board or political subdivision.
ARTICLE VII - UTILITIES AND SERVICES
7.01 BUILDING SERVICES. Landlord agrees to furnish or cause to be
furnished to the Premises the following utilities and services, subject to
the conditions and standards set forth herein:
(A) Non-attended automatic elevator service (if the Building
has such equipment serving the Premises), in common with Landlord and other
tenants and occupants and their agents and invitees. At least one elevator shall
be in service at all times and the freight elevator shall be available to Tenant
on prior notice, subject to Landlord's scheduling requirements.
(B) During Business Hours, air conditioning, heating and
ventilation meeting the specifications set forth on Exhibit H. Landlord may make
available to Tenant heating, ventilation or air conditioning in excess of that
which Landlord shall be required to provide hereunder upon such conditions as
shall be determined by Landlord from time to time. Landlord's fee for
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any such additional heating, ventilation or air conditioning provided to Tenant,
to be set by Landlord from time to time (such fee is currently $40 per hour,
subject to change from time to time); will be separate from and in addition to
the Operating Expenses Adjustment provide in Article IV.
(C) Water for drinking and rest room purposes.
(D) Janitorial and cleaning services as specified on Exhibit I
(subject to reasonable change, from time to time), provided that the Premises
are used exclusively for office purposes and are kept reasonably in order by
Tenant. If the Premises are not used exclusively as offices, Landlord, at
Landlord's sole discretion, may require that the Premises be kept clean and in
order by Tenant, at Tenant's expense, to the satisfaction of Landlord and by
persons approved by Landlord; and, in all events, Tenant shall pay to Landlord
the cost of removal of Tenants refuse and rubbish, to the extent that the same
exceeds the refuse and rubbish attendant to normal office usage.
(E) Electricity shall not be furnished by Landlord but shall be
furnished by the approved electric utility company serving the area. Landlord
shall permit Tenant to receive such service direct from such utility company at
Tenant's cost and shall permit Landlord's wire and conduits, to the extent
available, suitable and safely capable, to be used for such purposes. Tenant
shall make all necessary arrangements with the utility company for paying for
electric current furnished by it to Tenant, and Tenant shall pay for all charges
for electric current consumed on the Premises during Tenant's occupancy thereof.
The Leased Premises are already separately metered. The electricity used during
the performance of janitor service, the making of alterations or repairs in the
Premises, and for the operation of the Building's air conditioning system at
times other than as provided in paragraph (B) hereof, or the operation of any
special air conditioning systems which may be required for data processing
equipment or for other special equipment or machinery installed by Tenant, shall
by paid for by Tenant, as additional Rent. Any such additional Rent shall be
payable by Tenant within five (5) days after Tenant receives an invoice therefor
from Landlord. Tenant shall make no alterations or additions to the electric
equipment or appliances without the prior written consent of Landlord in each
instance unreasonably withheld, conditioned or delayed. Tenant also agrees to
install in the Premises only Landlord's approved brands and models of lamps,
bulbs, ballasts and starters. Tenant covenants and agrees that at all times its
use of electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installed thereon.
Any amounts which Tenant is required to pay to Landlord pursuant to this
Section 7.01 shall be payable upon demand by Landlord and shall constitute
additional rent.
7.02 INTERRUPTION OF SERVICES. Landlord shall not be liable for any
failure to furnish, stoppage of, or interruption in furnishing any of the
services or utilities described in Section 7.01, when such failure is caused by
accident, breakage, repairs, strikes, lockouts, labor disputes, labor
disturbances, governmental regulation, civil disturbances, acts of war,
moratorium or other governmental action, or any other cause beyond Landlord's
reasonable control, and, in such event, Tenant shall not be entitled to any
damages nor shall any failure or interruption abate or suspend Tenant's
obligation to pay Base Rent and additional rent required under this Lease or
constitute or be construed as a constructive or other eviction of Tenant.
Further, in the event any governmental authority or public utility promulgates
or revises any law, ordinance, rule or regulation, or issues mandatory controls
or voluntary controls relating to the use or conservation of energy, water, gas,
light or electricity, the reduction of automobile or other emissions, or the
provision of any other utility or service, Landlord may take any reasonably
appropriate action to comply with such law, ordinance, rule, regulation,
mandatory control or voluntary guideline and Tenant's obligations hereunder
shall not be affected by any such action of Landlord. The parties acknowledge
that safety and security devices, services and programs provided by Landlord, if
any, while intended to deter crime and ensure safety, may not in given instances
prevent theft or other criminal acts, or ensure safety of persons or property.
The risk that any safety or security device, service or program may not be
effective, or may malfunction, or be circumvented by a criminal, is assumed by
Tenant with respect to Tenant's property and interests, and Tenant shall obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts and other losses, as further described in this Lease. Tenant agrees to
cooperate in any reasonable safety or security program developed by Landlord or
required by Law. See Insert No. 6 of the Rider.
ARTICLE VIII - MAINTENANCE AND REPAIRS
8.01 LANDLORD'S OBLIGATIONS. Except as provided in Sections 8.02 and
8.03 below, Landlord shall maintain the Building, including floor and ceiling,
stairs, exterior walls and windows, the roof and common mechanical systems, in
good order and repair throughout the Lease Term; provided, however, that
Landlord shall not be liable for any failure to make any repairs or to perform
any maintenance unless such failure shall persist for an unreasonable time after
written notice of the need for such repairs or maintenance is given to Landlord
by Tenant. Except as provided in Article XI, there shall be no abatement of
Rent, nor shall there be any liability of Landlord, by reason of any injury or
inconvenience to, or interference with, Tenant's business or operations arising
from the making of, or failure to make, any maintenance or repairs in or to any
portion of the Building. Landlord shall use reasonable efforts to minimize
interference with Tenant's business operations while performing such maintenance
or repairs (provided Landlord may perform such work during normal business
hours).
8.02 TENANT'S OBLIGATIONS. During the Lease Term, Tenant shall, at
its sole cost and expense, maintain the Premises in good order and repair
(including, without limitation, the carpet, wall-covering, doors, plumbing and
other fixtures, equipment, alterations and improvements, whether installed by
Landlord or Tenant). Further, Tenant shall be responsible for, and upon demand
by Landlord shall promptly reimburse Landlord for, any damage to any portion of
the Building or the Premises caused by (a) Tenant's activities in the Building
or the Premises; (b) the performance or existence of any alterations, additions
or improvements made by Tenant in or to the Premises; (c) the installation, use,
operation or movement of Tenant's property in or about the Building or the
Premises; or (d) any act or omission by Tenant or its officers, partners,
employees, agents, contractors or invitees.
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8.03 LANDLORD'S RIGHTS. Landlord and its contractors shall have the
right, at all reasonable times and upon reasonable prior oral or telephonic
notice to Tenant at the Premises, other than in the case of any emergency in
which case no notice shall be required, to enter upon the Premises to make any
repairs to the Premises or the Building reasonably required or deemed reasonably
necessary by Landlord and to erect such equipment, including scaffolding, as is
reasonably necessary to effect such repairs. Landlord shall use reasonable
efforts to minimize interference with Tenant's business operations while
performing such maintenance or repairs (provided Landlord may perform such work
during normal business hours).
ARTICLE IX - ALTERATIONS, ADDITIONS AND IMPROVEMENTS
9.01 LANDLORD'S CONSENT; CONDITIONS. Tenant shall not make or permit
to be made any alterations, additions, or improvements in or to the Premises
("Alterations") without the prior written consent of Landlord, which consent,
with respect to non-structural alterations, shall not be unreasonably withheld
conditioned or delayed. Landlord may impose as a condition to making any
Alterations such requirements as Landlord in its reasonable discretion deems
necessary or desirable including without limitation: Tenant's submission to
Landlord, for Landlord's prior written approval, of all plans and specifications
relating to the Alterations; Landlord's prior written approval of the time or
times when the Alterations are to be performed; Landlord's prior written
approval of the contractors and subcontractors performing work in connection
with the Alterations; employment of union contractors and subcontractors who
shall not cause labor disharmony; Tenant's receipt of all necessary permits and
approvals from all governmental authorities having jurisdiction over the
Premises prior to the construction of the Alterations; Tenant's delivery to
Landlord of such bonds and insurance as Landlord shall reasonably require; and
Tenant's payment to Landlord of all costs and expenses incurred by Landlord
because of Tenant's Alterations, including but not limited to costs incurred in
reviewing the plans and specifications for, and the progress of, the
Alterations. Tenant is required to provide Landlord written notice of whether
the Alterations include the Handling of any Hazardous Materials and whether
these materials are of a customary and typical nature for industry practices.
Upon completion of the Alterations, Tenant shall provide Landlord with copies of
as-built plans. Neither the approval by Landlord of plans and specifications
relating to any Alterations nor Landlord's supervision or monitoring of any
Alterations shall constitute any warranty by Landlord to Tenant of the adequacy
of the design for Tenant's intended use or the proper performance of the
Alterations.
9.02 PERFORMANCE OF ALTERATIONS WORK. All work relating to the
Alterations shall be performed in compliance with the plans and specifications
approved by Landlord, all applicable laws, ordinances, rules, regulations and
directives of all governmental authorities having jurisdiction and the
requirements of all carriers of insurance on the Premises and the Building, the
Board of Underwriters, Fire Rating Bureau, or similar organization. All work
shall be performed in a diligent, first class manner and so as not to
unreasonably interfere with any other tenants or occupants of the Building. All
costs incurred by Landlord relating to the Alterations shall be payable to
Landlord by Tenant as additional rent upon demand. No asbestos-containing
materials shall be used or incorporated in the Alterations. No lead-containing
surfacing material, solder, or other construction materials or fixtures where
the presence of lead might create a condition of exposure not in compliance with
Environmental Laws shall be incorporated in the Alterations.
9.03 LIENS. Tenant shall pay when due all costs for work performed
and materials supplied to the Premises. Tenant shall keep Landlord, the Premises
and the Building free from all liens, stop notices and violation notices
relating to the Alterations or any other work performed for, materials furnished
to or obligations incurred by or for Tenant and Tenant shall protect, indemnify,
hold harmless and defend Landlord, the Premises and the Building of and from any
and all loss, cost, damage, liability and expense, including attorneys' fees,
arising out of or related to any such liens or notices. Further, Tenant shall
give Landlord not less than seven (7) business days prior written notice before
commencing any Alterations in or about the Premises to permit Landlord to post
appropriate notices of non-responsibility. Tenant shall also secure, prior to
commencing any Alterations, at Tenant's sole expense, a completion and lien
indemnity bond satisfactory to Landlord for such work. During the progress of
such work, Tenant shall, upon Landlord's request, furnish Landlord with sworn
contractor's statements and lien waivers covering all work theretofore
performed. Tenant shall satisfy or otherwise discharge all liens, stop notices
or other claims or encumbrances within 20 days after Landlord notifies
Tenant in writing that any such lien, stop notice, claim or encumbrance has been
filed. If Tenant fails to pay and remove such lien, claim or encumbrance within
such 20 days, Landlord, at its election, may pay and satisfy the same
and in such event the sums so paid by Landlord, with interest from the date of
payment at the rate set forth in Section 4.06 hereof for amounts owed Landlord
by Tenant shall be deemed to be additional rent due and payable by Tenant at
once without notice or demand.
9.04 LEASE TERMINATION. Except as provided in this Section 9.04, upon
expiration or earlier termination of this Lease Tenant shall surrender the
Premises to Landlord in the same condition as existed on the date Tenant first
occupied the Premises, (whether pursuant to this Lease or an earlier lease),
subject to reasonable wear and tear and damage by casualty or condemnation. All
Alterations shall become a part of the Premises and shall become the property of
Landlord upon the expiration or earlier termination of this Lease, unless
Landlord shall, by written notice given to Tenant, require Tenant to remove some
or all of Tenant's Alterations, in which event Tenant shall promptly remove the
designated Alterations and shall promptly repair any resulting damage, all at
Tenant's sole expense. All business and trade fixtures, machinery and equipment,
furniture, movable partitions and items of personal property owned by Tenant or
installed by Tenant at its expense in the Premises shall be and remain the
property of Tenant; upon the expiration or earlier termination of this Lease,
Tenant shall, at its sole expense, remove all such items and repair any damage
to the Premises or the Building caused by such removal. If Tenant fails to
remove any such items or repair such damage promptly after the expiration or
earlier termination of the Lease, Landlord may, but need not, do so with no
liability to Tenant, and Tenant shall pay Landlord the cost thereof upon demand.
Notwithstanding the foregoing to the contrary, in the event that Landlord gives
its consent, pursuant to the provisions of Section 9.01 of this Lease, to
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allow Tenant to make an Alteration in the Premises, Landlord agrees, upon
Tenant's written request, to notify Tenant in writing at the time of the giving
of such consent whether Landlord will require Tenant, at Tenant's cost, to
remove such Alteration at the end of the Lease Term.
ARTICLE X - INDEMNIFICATION AND INSURANCE
10.01 INDEMNIFICATION.
(A) Tenant agrees to protect, indemnify, hold harmless and
defend Landlord and any Mortgagee, as defined herein, and each of their
respective partners, directors, officers, agents and employees, successors and
assigns, (except to the extent of the losses described below are caused by the
negligence or willful misconduct of Landlord, its agents and employees),
from and against:
(i) any and all loss, cost, damage, liability or expense
as incurred (including but not limited to reasonable attorneys'
fees and legal costs) arising out of or related to any claim,
suit or judgment brought by or in favor of any person or persons
for damage, loss or expense due to, but not limited to, bodily
injury, including death, or property damage sustained by such
person or persons which arises out of, is occasioned by or is in
any way attributable to the use or occupancy of the Premises or
any portion of the Building by Tenant or the acts or omission of
Tenant or its agents, employees, contractors, clients, invitees
or subtenants except to the extent caused by the negligence or
willful misconduct of Landlord or its agents or employees. Such
loss or damage shall include, but not be limited to, any injury
or damage to, or death of, Landlord's employees or agents or
damage to the Premises or any portion of the Building.
(ii) any and all environmental damages which arise from:
(i) the Handling of any Tenant's Hazardous Materials, as defined
in Section 6.03 or (ii) the breach of any of the provisions of
this Lease. For the purpose of this Lease, "environmental
damages" shall mean (a) all claims, judgments, damages,
penalties, fines, costs, liabilities, and losses (including
without limitation, diminution in the value of the Premises or
any portion of the Building, damages for the loss of or
restriction on use of rentable or usable space or of any amenity
of the Premises or any portion of the Building, and from any
adverse impact of Landlord's marketing of space); (b) all
reasonable sums paid for settlement of claims, attorneys' fees,
consultants' fees and experts' fees; and (c) all costs incurred
by Landlord in connection with investigation or remediation
relating to the Handling of Tenant's Hazardous Materials,
whether or not required by Environmental Laws, necessary for
Landlord to make full economic use of the Premises or any
portion of the Building, or otherwise required under this Lease.
To the extent that Landlord is held strictly liable by a court
or other governmental agency of competent jurisdiction under any
Environmental Laws, Tenant's obligation to Landlord and the
other indemnities under the foregoing indemnification shall
likewise be without regard to fault on Tenant's part with
respect to the violation of any Environmental Law which results
in liability to the indemnitee. Tenant's obligations and
liabilities pursuant to this Section 10.01 shall survive the
expiration or earlier termination of this Lease.
(B) Landlord agrees to protect, indemnify, hold harmless and
defend Tenant from and against any and all loss, cost, damage, liability or
expense, including reasonable attorneys' fees, with respect to any claim of
damage or injury to persons or property at the Premises, caused by the
negligence or willful misconduct of Landlord or its authorized agents or
employees.
(C) Notwithstanding anything to the contrary contained herein,
nothing shall be interpreted or used to in any way affect, limit, reduce or
abrogate any insurance coverage provided by any insurers to either Tenant or
Landlord.
(D) Notwithstanding anything to the contrary contained in this
Lease, nothing herein shall be construed to infer or imply that Tenant is a
partner, joint venturer, agent, employee, or otherwise acting by or at the
direction of Landlord.
10.02 PROPERTY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, "all-risk" property insurance, for damage or
other loss caused by fire or other casualty or cause including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting of pipes, explosion, in an amount not less than one
hundred percent (100%) of the replacement cost covering (a) all Alterations made
by or for Tenant in the Premises; and (b) Tenant's trade fixtures, equipment and
other personal property from time to time situated in the Premises. The proceeds
of such insurance shall be used for the repair or replacement of the property so
insured, except that if not so applied or if this Lease is terminated following
a casualty, the proceeds applicable to the leasehold improvements shall be paid
to Landlord and the proceeds applicable to Tenant's personal property shall be
paid to Tenant.
(B) At all times during the Lease Term, Tenant shall procure
and maintain business interruption insurance in such amount as will reimburse
Tenant for direct or indirect loss of earnings attributable to all perils
insured against in Section 10.02(A).
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(C) Landlord shall, at all times during the Lease Term, procure
and maintain "all-risk" property insurance in the amount not less than ninety
percent (90%) of the insurable replacement cost covering the Building in which
the Premises are located and such other insurance as may be required by a
Mortgagee or otherwise desired by Landlord.
10.03 LIABILITY INSURANCE.
(A) At all times during the Lease Term, Tenant shall procure
and maintain, at its sole expense, commercial general liability insurance
applying to the use and occupancy of the Premises and the business operated by
Tenant. Such insurance shall have a minimum combined single limit of liability
of at least Two Million Dollars ($2,000,000) per occurrence and a general
aggregate limit of at least Two Million Dollars ($2,000,000). All such policies
shall be written to apply to all bodily injury, property damage, personal injury
losses and shall be endorsed to include Landlord and its agents, beneficiaries,
partners, employees, and any deed of trust holder or mortgagee of Landlord or
any ground lessor as additional insureds. Such liability insurance shall be
written as primary policies, not excess or contributing with or secondary to any
other insurance as may be available to the additional insureds.
(B) Prior to the sale, storage, use or giving away of alcoholic
beverages on or from the Premises by Tenant or another person, Tenant, at its
own expense, shall obtain a policy or policies of insurance issued by a
responsible insurance company and in a form acceptable to Landlord saving
harmless and protecting Landlord and the Premises against any and all damages,
claims, liens, judgments, expenses and costs, including actual attorneys' fees,
arising under any present or future law, statute, or ordinance of the State of
Illinois or other governmental authority having jurisdiction of the Premises, by
reason of any storage, sale, use or giving away of alcoholic beverages on or
from the Premises. Such policy or policies of insurance shall have a minimum
combined single limit of One Million ($1,000,000) per occurrence and shall apply
to bodily injury, fatal or nonfatal; injury to means of support; and injury to
property of any person. Such policy or policies of insurance shall name Landlord
and its agents, beneficiaries, partners, employees and any mortgagee of Landlord
or any ground lessor of Landlord as additional insureds.
(C) Landlord shall, at all times during the Lease Term, procure
and maintain commercial general liability insurance for the Building in which
the Premises are located. Such insurance shall have minimum combined single
limit of liability of at least Two Million Dollars ($2,000,000) per occurrence,
and a general aggregate limit of at least Two Million Dollars ($2,000,000).
10.04 WORKERS' COMPENSATION INSURANCE. At all times during the Lease
Term, Tenant shall procure and maintain Workers' Compensation Insurance in
accordance with the laws of the State of Illinois, and Employer's Liability
insurance with a limit not less than One Million Dollars ($1,000,000) Bodily
Injury Each Accident; One Million Dollars ($1,000,000) Bodily Injury By Disease
- Each Person; and One Million Dollars ($1,000,000) Bodily Injury to Disease -
Policy Limit.
10.05 POLICY REQUIREMENTS. All insurance required to be maintained by
Tenant shall be issued by insurance companies authorized to do insurance
business in the State of Illinois and rated not less than A-VIII in Best's
Insurance Guide. A certificate of insurance (or, at Landlord's option, copies of
the applicable policies) evidencing the insurance required under this Article X
shall be delivered to Landlord not less than thirty (30) days prior to the
Commencement Date. No such policy shall be subject to cancellation or
modification without thirty (30) days prior written notice to Landlord and to
any deed of trust holder, mortgagee or ground lessor designated by Landlord to
Tenant. Tenant shall furnish Landlord with a replacement certificate with
respect to any insurance not less than thirty (30) days prior to the expiration
of the current policy. Tenant shall have the right to provide the insurance
required by this Article X pursuant to blanket policies, but only if such
blanket policies expressly provide coverage to the Premises and Landlord as
required by this Lease.
10.06 WAIVER OF SUBROGATION. Each party hereby waives any right of
recovery against the other for injury or loss due to hazards covered by
insurance or required to be covered, to the extent of the injury or loss covered
thereby. Any policy of insurance to be provided by Tenant or Landlord pursuant
to this Article X shall contain a clause denying the applicable insurer any
right of subrogation against the other party.
10.07 FAILURE TO INSURE. If Tenant fails to maintain any insurance
which Tenant is required to maintain pursuant to this Article X, Tenant shall be
liable to Landlord for any loss or cost resulting from such failure to maintain.
Tenant may not self-insure against any risks required to be covered by insurance
without Landlord's prior written consent.
ARTICLE XI - DAMAGE OR DESTRUCTION
11.01 TOTAL DESTRUCTION. Except as provided in Section 11.03 below,
this Lease shall automatically terminate if the Building is totally destroyed.
11.02 PARTIAL DESTRUCTION OF PREMISES. If the Premises are damaged
by any casualty and, in Landlord's opinion, the Premises (exclusive of any
Alterations made to the Premises by Tenant) can be restored to its
pre-existing condition within 180 days after the date of the damage or
destruction, Landlord shall, upon written notice from Tenant to Landlord of
such damage, except as provided in Section 11.03, promptly and with due
diligence repair any damage to the Premises (exclusive of any Alterations to
the Premises
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made by Tenant, which shall be promptly repaired by Tenant at its sole expense)
and, until such repairs are completed, the Rent shall be abated from the date of
damage or destruction in the same proportion that the rentable area of the
portion of the Premises which is unusable by Tenant in the conduct of its
business bears to the total rentable area of the Premises. If such repairs
cannot, in Landlord's opinion, be made within said 180 day period, then Landlord
may, at its option, exercisable by written notice given to Tenant within thirty
(30) days after the date of the damage or destruction, elect to make the repairs
within a reasonable time after the damage or destruction, in which event this
Lease shall remain in full force and effect but the Rent shall be abated as
provided in the preceding sentence; if Landlord does not so elect to make the
repairs, then either Landlord or Tenant shall have the right, by written notice
given to the other within sixty (60) days after the date of the damage or
destruction, to terminate this Lease as of the date of the damage or
destruction. See Insert No. 7 of the Rider.
11.03 EXCEPTIONS TO LANDLORD'S OBLIGATIONS. Notwithstanding anything
to the contrary contained in this Article XI, Landlord shall have no obligation
to repair the Premises if either: (a) the Building in which the Premises are
located is so damaged as to require repairs to the Building exceeding twenty
percent (20%) of the full insurable value of the Building; or (b) Landlord
elects to demolish the Building in which the Premises are located; or (c) the
damage or destruction occurs less than two (2) years prior to the Termination
Date, exclusive of option periods. Further, Tenant's Rent shall not be abated if
either (i) the damage or destruction is repaired within five (5) business days
after Landlord receives written notice from Tenant of the casualty, or (ii)
Tenant, or any officers, partners, employees, agents or invitees of Tenant, or
any assignee or subtenant of Tenant, is, in whole or in part, responsible for
the damage or destruction.
11.04 WAIVER. The provisions contained in this Lease shall supersede
any contrary laws (whether statutory, common law or otherwise) now or hereafter
in effect relating to damage, destruction, self-help or termination.
ARTICLE XII - CONDEMNATION
12.01 TAKING. If the entire Premises or so much of the Premises as to
render the balance unusable by Tenant for Tenant's Permitted Use shall be taken
by condemnation, sale in lieu of condemnation or in any other manner for any
public or quasi-public purpose (collectively "Condemnation"), and if Landlord,
at its option, is unable or unwilling to provide substitute premises the
Building containing at least as much rentable area as described in Section
1.02 above and pay all reasonable relocation costs incurred by Tenant, then this
Lease shall terminate on the date that title or possession to the Premises is
taken by the condemning authority, whichever is earlier.
12.02 AWARD. In the event of any Condemnation, the entire award for
such taking shall belong to Landlord. Tenant shall have no claim against
Landlord or the award for the value of any unexpired term of this Lease or
otherwise. Tenant shall be entitled to independently pursue a separate award in
a separate proceeding for Tenant's relocation costs directly associated with the
taking, provided such separate award does not diminish Landlord's award.
12.03 TEMPORARY TAKING. No temporary taking of the Premises shall
terminate this Lease or entitle Tenant to any abatement of the Rent payable to
Landlord under this Lease; provided, further, that any award for such temporary
taking shall belong to Tenant to the extent that the award applies to any time
period during the Lease Term and to Landlord to the extent that the award
applies to any time period outside the Lease Term.
[Intentionally Deleted] ARTICLE XIII-RELOCATION
ARTICLE XIV - ASSIGNMENT AND SUBLETTING
14.01 RESTRICTION. Without the prior written consent of Landlord
(which consent, with respect to an assignment or subletting, shall not be
unreasonably withheld as provided in Section 14.04), Tenant shall not, either
voluntarily or by operation of law, assign, encumber, or otherwise transfer this
Lease or any interest herein, or sublet the Premises or any part thereof, or
permit the Premises to be occupied by anyone other than Tenant or Tenant's
employees (any such assignment, encumbrance, subletting, occupation or transfer
is hereinafter referred to as a "Transfer"). For purposes of this Lease, the
term "Transfer" shall also include (a) if Tenant is a partnership, the
withdrawal or change, voluntary, involuntary or by operation of law, of a
majority of the partners, or a transfer of a majority of partnership interests,
within a twelve month period, or the dissolution of the partnership, (b) if
Tenant is a closely held corporation (i.e. whose stock is not publicly held and
not traded through an exchange or over the counter) or a limited liability
company, the dissolution, merger, consolidation, division, liquidation or other
reorganization of Tenant, or within a twelve month period: (i) the sale or other
transfer of more than an aggregate of 50% of the voting securities of Tenant
(other than to immediate family members by reason of gift or death) or (ii) the
sale, mortgage, hypothecation or pledge of more than an aggregate of 50% of
Tenant's net assets, and (c) any change by Tenant in the form of its legal
organization under applicable state law (such as, for example, a change from a
general partnership to a limited partnership or from a corporation to a limited
liability company). An assignment,
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subletting or other action in violation of the foregoing shall be void and, at
Landlord's option, shall constitute a material breach of this Lease.
Notwithstanding anything contained in this Article XIV to the contrary, Tenant
shall have the right to assign the Lease or sublease the Premises, or any part
thereof, to an "Affiliate" without the prior written consent of Landlord, but
upon at least twenty (20) days' prior written notice to Landlord, provided that
said Affiliate is not in default under any other lease for space in a property
that is managed by Heitman Properties Ltd. or any of its affiliates. For
purposes of this provision, the term "Affiliate" shall mean (i) any corporation
or other entity controlling, controlled by, or under common control with
(directly or indirectly) Tenant, including, without limitation, any parent
corporation controlling Tenant or any subsidiary that Tenant controls, (ii) the
surviving entity following a merger or consolidation involving Tenant and (iii)
any entity that purchases substantially all of Tenant's assets with the
intention of continuing Tenant's business operations. The term "control" as used
herein, shall mean the power to direct or cause the direction of the management
and policies of the controlled entity through the ownership of more than fifty
percent (50%) of the voting securities in such controlled entity.
Notwithstanding anything contained in this Article XIV to the contrary, Tenant
expressly covenants and agrees not to enter into any lease, sublease, license,
concession or other agreement for use, occupancy or utilization of the Premises
which provides for rental or other payment for such use, occupancy or
utilization based in whole or in part on the net income or profits derived by
any person from the property leased, used, occupied, or utilized (other than an
amount based on a fixed percentage or percentages of receipts or sales), and
that any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or
interest in the possession, use, occupancy or utilization of any part of the
Premises.
14.02 NOTICE TO LANDLORD. If Tenant desires to assign this Lease or
any interest herein, or to sublet all or any part of the Premises, then at least
thirty (30) days but not more than one hundred eighty (180) days prior to the
effective date of the proposed assignment or subletting. Tenant shall submit to
Landlord in connection with Tenant's request for Landlord's consent:
(A) A statement containing (i) the name and address of the
proposed assignee or subtenant; (ii) such financial information with respect to
the proposed assignee or subtenant as Landlord shall reasonably require; (iii)
the type of use proposed for the Premises; and (iv) all of the principal terms
of the proposed assignment or subletting; and
(B) Four (4) originals of the assignment or sublease on a form
approved by Landlord and four (4) originals of the Landlord's Consent to
Sublease or Assignment and Assumption of Lease and Consent.
14.03 LANDLORD'S RECAPTURE RIGHTS. At any time within twenty (20)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 14.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. If Landlord does not
exercise any of the options described in the preceding sentence, then, during
the above-described twenty (20) business day period, Landlord shall either
consent or deny its consent to the proposed assignment or subletting.
14.04 LANDLORD'S CONSENT; STANDARDS. Landlord's consent to a proposed
assignment or subletting shall not be unreasonably withheld; but, in addition to
any other grounds for denial, Landlord's consent shall be deemed reasonably
withheld if, in Landlord's good faith judgment: (i) the proposed assignee or
subtenant does not have the financial strength to perform its obligations under
this Lease or any proposed sublease: (ii) the business and operations of the
proposed assignee or subtenant are not of comparable quality to the business and
operations being conducted by other tenants in the Building; (iii) the proposed
assignee or subtenant intends to use any part of the Premises for a purpose not
permitted under this Lease; (iv) either the proposed assignee or subtenant, or
any person which directly or indirectly controls, is controlled by, or is under
common control with the proposed assignee or subtenant occupies space in the
Building, or is negotiating with Landlord to lease space in the Building; (v)
the proposed assignee or subtenant is disreputable; or (vi) the use of the
Premises or the Building by the proposed assignee or subtenant would, in
Landlord's reasonable judgment, impact the Building in a negative manner
including but not limited to significantly increasing the pedestrian traffic in
and out of the Building or requiring any alterations to the Building to comply
with applicable laws; (vii) the subject space is not regular in shape with
appropriate means of ingress and egress suitable for normal renting purposes;
(viii) the transferee is a government (or agency or instrumentality thereof) or
(ix) Tenant has failed to cure a default at the time Tenant requests consent tot
the proposed Transfer.
14.05 ADDITIONAL RENT. If Landlord consents to any such assignment or
subletting, one-half (1/2) of the amount by which all sums or other economic
consideration received by Tenant in connection with such assignment or
subletting, whether denominated as rental or costs and brokers' commissions
actually paid and incurred by Tenant in connection with such Transfer, which
amount shall be amortized over the term of the Transfer), exceeds, in the
aggregate, the total sum which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to less than all of the
Premises under a sublease) shall be paid to Landlord promptly after receipt as
additional Rent under the Lease without affecting or reducing any other
obligation of Tenant hereunder.
14.06 LANDLORD'S COSTS. If Tenant shall Transfer this Lease or all or
any part of the Premises or shall request the consent of Landlord to any
Transfer, Tenant shall pay to Landlord as additional rent Landlord's costs
related thereto, including Landlord's reasonable attorneys' fees and a maximum
fee to Landlord of Five Hundred Dollars ($500.00).
14.07 CONTINUING LIABILITY OF TENANT. Notwithstanding any Transfer,
including an assignment or sublease to an affiliate, Tenant shall remain as
fully and primarily liable for the payment of Rent and for the
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performance of all other obligations of Tenant contained in this Lease to the
same extent as if the Transfer had not occurred; provided, however, that any act
or omission of any transferee, other than Landlord, that violates the terms of
this Lease shall be deemed a violation of this Lease by Tenant.
14.08 NON-WAIVER. The consent by Landlord to any Transfer shall not
relieve Tenant, or any person claiming through or by Tenant, of the obligation
to obtain the consent of Landlord, pursuant to this Article XIV, to any further
Transfer. In the event of an assignment or subletting, Landlord may collect rent
from the assignee or the subtenant without waiving any rights hereunder and
collection of the rent from a person other than Tenant shall not be deemed a
waiver of any of Landlord's rights under this Article XIV, an acceptance of
assignee or subtenant as Tenant, or a release of Tenant from the performance of
Tenant's obligations under this Lease. If Tenant shall default under this Lease
and fail to cure within the time permitted, Landlord is irrevocably authorized,
as Tenant's agent and attorney-in- fact, to direct any transferee to make all
payments under or in connection with the Transfer directly to Landlord (which
Landlord shall apply towards Tenant's obligations under this Lease) until such
default is cured.
ARTICLE XV - DEFAULT AND REMEDIES
15.01 EVENTS OF DEFAULT BY TENANT. The occurrence of any of the
following shall constitute a material default and breach of this Lease by
Tenant:
(A) The failure by Tenant to pay Base Rent or make any other
payment required to be made by Tenant hereunder as and when due to cure such
failure the first two times such failure occurs in any 12 month period).
(B) The abandonment of the Premises by Tenant or the vacation
of the Premises by Tenant for fourteen (14) consecutive days (with or without
the payment of Rent).
(C) The making by Tenant of any assignment of this Lease or any
sublease of all or part of the Premises, except as expressly permitted under
Article XIV of this Lease.
(D) The failure by Tenant to observe or perform any other
provision of this Lease to be observed or performed by Tenant, other than those
described in Sections 15.01(A), 15.01(B) or 15.01 (C) above, if such failure
continues for 30 days after written notice thereof by Landlord to Tenant;
provided, however, that if the nature of the default is such that it cannot be
cured within the 30 day period, no default shall exist if Tenant
commences the curing of the default within the 30 day period and
thereafter diligently prosecutes the same to completion. The 30 day
notice described herein shall be in lieu of, and not in addition to, any notice
required under law now or hereafter in effect requiring that notice of default
be given prior to the commencement of an unlawful detainer or other legal
proceeding.
(E) The making by Tenant or its Guarantor of any general
assignment for the benefit of creditors, the filing by or against Tenant or its
Guarantor of a petition under any federal or state bankruptcy or insolvency laws
(unless, in the case of a petition filed against Tenant or its Guarantor the
same is dismissed within 60 days after filing); the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
at the Premises or Tenant's interest in this Lease or the Premises, when
possession is not restored to Tenant within 60 days; or the
attachment, execution or other seizure of substantially all of Tenant's assets
located at the Premises or Tenant's interest in this Lease or the Premises, if
such seizure is not discharged within 60 days.
(F) Any material misrepresentation herein, or material
misrepresentation or omission in any financial statements or other materials
provided by Tenant or any Guarantor in connection with negotiating or entering
into this Lease or in connection with any Transfer under Section 14.01.
15.02 LANDLORD'S RIGHT TO TERMINATE UPON TENANT DEFAULT. In the event
of any default by Tenant as provided in Section 15.01 above, Landlord shall have
the right without notice or demand to Tenant (Tenant hereby irrevocably waiving
all notices and demands, statutory or otherwise, including without limitation,
any notice otherwise required in connection with any forcible entry and detainer
action), to terminate this Lease or to terminate Tenant's right to possession of
the Premises without terminating this Lease, and in either event Landlord shall
be entitled to receive from Tenant:
(A) The worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss Tenant proves could have been
reasonably avoided; plus
(C) The worth at the time of award of the amount by which the
unpaid Rent for the balance of the term after the time of award exceeds the
amount of such rental loss that Tenant proves could be reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom; and
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(E) At Landlord's election, such other amounts in addition to
or in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in subparagraphs (A) and (B) above, "worth at the time of award"
shall be computed by allowing interest on such amounts at the then highest
lawful rate of interest, but in no event to exceed one percent (1%) per annum
plus the rate established by the Federal Reserve Bank of Chicago on advances
made to member banks under Sections of the Federal Reserve Act ("discount rate")
prevailing at the time of the award. As used in paragraph (C) above, "worth at
the time of award" shall be computed by discounting such amount by (i) the
discount rate of the Federal Reserve Bank of Chicago prevailing at the time of
award plus (ii) one percent (1%).
15.03 MITIGATION OF DAMAGES. If Landlord terminates this Lease or
Tenant's right to possession of the Premises, Landlord shall have no obligation
to mitigate Landlord's damages except to the extent required by applicable law.
If Landlord has not terminated this Lease or Tenant's right to possession of the
Premises, Landlord shall have no obligation to mitigate under any circumstances
and may permit the Premises to remain vacant or abandoned. If Landlord is
required to mitigate damages as provided herein: (i) Landlord shall be required
only to use reasonable efforts to mitigate, which shall not exceed such efforts
as Landlord generally uses to lease other space in the Building, (ii) Landlord
will not be deemed to have failed to mitigate if Landlord or its affiliates
lease any other portions of the Building or other projects owned by Landlord or
its affiliates in the same geographic area, before reletting all or any portion
of the Premises, and (iii) any failure to mitigate as described herein with
respect to any period of time shall only reduce the Rent and other amounts to
which Landlord is entitled hereunder by the reasonable rental value of the
Premises during such period. In recognition that the value of the Building
depends on the rental rates and terms of leases therein, Landlord's rejection of
a prospective replacement tenant based on an offer of rentals below Landlord's
published rates for new leases of comparable space at the Building at the time
in question, or at Landlord's option, below the rates provided in this Lease, or
containing terms less favorable than those contained herein, shall not give rise
to a claim by Tenant that Landlord failed to mitigate Landlord's damages.
15.04 LANDLORD'S RIGHT TO CONTINUE LEASE UPON TENANT DEFAULT. In the
event of a default of this Lease and abandonment of the Premises by Tenant, if
Landlord does not elect to terminate this Lease as provided in Section 15.02
above, Landlord may from time to time, without terminating this Lease, enforce
all of its rights and remedies under this Lease. Without limiting the foregoing,
Landlord may continue this Lease in effect after Tenant's default and
abandonment and recover Rent as it becomes due. In the event Landlord re-lets
the Premises, to the fullest extent permitted by law, the proceeds of any
reletting shall be applied first to pay to Landlord all costs and expenses of
such reletting (including without limitation, costs and expenses of retaking or
repossessing the Premises, removing persons and property therefrom, securing new
tenants, including expenses for redecoration, alterations and other costs in
connection with preparing the Premises for the new tenant, and if Landlord shall
maintain and operate the Premises, the costs thereof) and receivers' fees
incurred in connection with the appointment of and performance by a receiver to
protect the Premises and Landlord's interest under this Lease and any necessary
or reasonable alterations; second, to the payment of any indebtedness of Tenant
to Landlord other than Rent due and unpaid hereunder; third, to the payment of
Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of other or future obligations of Tenant to
Landlord as the same may become due and payable, and Tenant shall not be
entitled to receive any portion of such revenue.
15.05 RIGHT OF LANDLORD TO PERFORM. All covenants and agreements to be
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to perform any other act
on its part to be performed hereunder, Landlord may, but shall not be obligated
to, make any payment or perform any such other act on Tenant's part to be made
or performed, without waiving or releasing Tenant of its obligations under this
Lease. Any sums so paid by Landlord and all necessary incidental costs, together
with interest thereon at the lesser of the maximum rate permitted by law if any
or twelve percent (12%) per annum from the date of such payment, shall be
payable to Landlord as additional rent on demand and Landlord shall have the
same rights and remedies in the event of nonpayment as in the case of default by
Tenant in the payment of Rent.
15.06 DEFAULT UNDER OTHER LEASES. If the term of any lease, other than
this Lease, heretofore or hereafter made by Tenant for any office space in the
Building shall be terminated or terminable after the making of this Lease
because of any default by Tenant under such other lease, such fact shall empower
Landlord, at Landlord's sole option, to terminate this Lease by notice to Tenant
or to exercise any of the rights or remedies set forth in Section 15.02.
15.07 NON-WAIVER. Nothing in this Article shall be deemed to affect
Landlord's rights to indemnification for liability or liabilities arising prior
to termination of this Lease or Tenant's right to possession of the Premises for
personal injury or property damages under the indemnification clause or clauses
contained in this Lease. No acceptance by Landlord of a lesser sum than the Rent
then due shall be deemed to be other than on account of the earliest installment
of such rent due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or pursue any other
remedy in the Lease provided. The delivery of keys to any employee of Landlord
or to Landlord's agent or any employee thereof shall not operate as a
termination of this Lease or a surrender of the Premises.
15.08 CUMULATIVE REMEDIES. The specific remedies to which Landlord may
resort under the terms of the Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it may be lawfully
entitled in case of any breach or threatened breach by Tenant of any provisions
of the Lease. In
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addition to the other remedies provided in the Lease, including the right to
terminate this Lease or to terminate Tenant's right of possession of the
Premises and reenter and repossess the Premises and remove all persons and
property from the Premises without terminating this Lease as provided in Section
15.02, Landlord shall be entitled to a restraint by injunction of the violation
or attempted or threatened violation of any of the covenants, conditions or
provisions of the Lease or to a decree compelling specific performance of any
such covenants, conditions or provisions.
15.09 DEFAULT BY LANDLORD. Landlord's failure to perform or observe
any of its obligations under this Lease shall constitute a default by Landlord
under this Lease only if such failure shall continue for a period of thirty (30)
days (or the additional time, if any, that is reasonably necessary to promptly
and diligently cure the failure) after Landlord receives written notice from
Tenant specifying the default. The notice shall give in reasonable detail the
nature and extent of the failure and shall identify the Lease provision(s)
containing the obligation(s). If Landlord shall default in the performance of
any of its obligations under this Lease (after notice and opportunity to cure as
provided herein), Tenant may pursue any remedies available to it under the law
and this Lease, except that, in no event, shall Landlord be liable for punitive
damages, lost profits, business interruption, speculative, consequential or
other such damages. In recognition that Landlord must receive timely payments of
Rent and operate the Building, Tenant shall have no right of self-help to
perform repairs or any other obligation of Landlord, and shall have no right to
withhold, set-off, or abate Rent.
ARTICLE XVI - ATTORNEYS' FEES: COSTS OF SUIT
16.01 ATTORNEYS FEES. If either Landlord or Tenant shall commence any
action or other proceeding against the other arising out of, or relating to,
this Lease or the Premises, the prevailing party shall be entitled to recover
from the losing party, in addition to any other relief, its actual attorneys'
fees irrespective of whether or not the action or other proceeding is prosecuted
to judgment and irrespective of any court schedule of reasonable attorneys'
fees. In addition, Tenant shall reimburse Landlord, upon demand, for all
reasonable attorneys' fees incurred in collecting Rent, resolving any actual
default by Tenant, securing indemnification as provided in Article X and
paragraphs, 16.02, 23.01 and 25.01 herein or otherwise seeking enforcement
against Tenant, its sublessees and assigns, of Tenant's obligations under this
Lease.
16.02 INDEMNIFICATION. Should Landlord or Tenant be made a party to
any litigation instituted by the other party against a third party, or by a
third party against Tenant. Tenant or Landlord, respectively, shall
indemnify, hold harmless and defend Landlord or Tenant, respectively, from
any and all loss, cost, liability, damage or expense incurred by Landlord or
Tenant, respectively, including attorneys' fees, in connection with the
litigation.
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.01 SUBORDINATION. This Lease, and the rights of Tenant hereunder,
are and shall be subject and subordinate to the interest of (i) all present and
future ground leases and master leases of all or any part of the Building; (ii)
present and future mortgages and deeds of trust encumbering all or any part of
the Building: (iii) all past and future advances made under any such mortgages
or deeds of trust; and (iv) all renewals, modifications, replacements and
extensions of any such ground leases, master leases, mortgages and deeds of
trust; provided, however, that any lessor under any such ground lease or master
lease or any mortgagee or beneficiary under any such mortgage or deed of trust
(any such lessor, mortgagee or beneficiary is hereinafter referred to as a
"Mortgagee") shall have the right to elect, by written notice given to Tenant,
to have this Lease made superior in whole or in part to any such ground lease,
master lease, mortgage or deed of trust (or subject and subordinate to such
ground lease, master lease, mortgage or deed of trust but superior to any junior
mortgage or junior deed of trust). Upon demand, Tenant shall execute,
acknowledge and deliver any instruments reasonably requested by Landlord or any
such Mortgagee to effect the purposes of this Section 17.01. Such instruments
may contain, among other things, provisions to the effect that such Mortgagee
(hereafter, for the purposes of this Section 17.01, a "Successor Landlord")
shall (i) not be liable for any act or omission of Landlord or its predecessors,
if any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (ii) not be subject to any offsets or defenses which
Tenant might have been able to assert against Landlord or its predecessors, if
any, prior to the date of such Successor Landlord's succession to Landlord's
interest under this Lease; (iii) not be liable for the return of any security
deposit under the Lease unless the same shall have actually been deposited with
such Successor Landlord; (iv) be entitled to receive notice of any Landlord
default under this Lease plus a reasonable opportunity to cure such default
prior to Tenant having any right or ability to terminate this Lease as a result
of such Landlord default; (v) not be bound by any rent or additional rent which
Tenant might have paid for more than the current month to Landlord; (vi) not be
bound by any amendment or modification of the Lease or any cancellation or
surrender of the same made without Successor Landlord's prior written consent;
(vii) not be bound by any obligation to make any payment to Tenant which was
required to be made prior to the time such Successor Landlord succeeded to
Landlord's interest and (viii) not be bound by any obligation under the Lease to
perform any work or to make any improvements to the demised Premises. Any
obligations of any Successor Landlord under its respective lease shall be
non-recourse as to any assets of such Successor Landlord other than its interest
in the Premises and improvements.
17.02 ATTORNMENT. If the interests of Landlord under the Lease shall
be transferred to any superior Mortgagee or other purchaser or person taking
title to the Building by reason of the termination of any superior lease or the
foreclosure of any superior mortgage or deed of trust, Tenant shall be bound to
such Successor Landlord under all of the terms, convenants and conditions of the
Lease for the balance of the term thereof remaining and any
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extensions or renewals thereof which may be effected in accordance with any
option therefor in the Lease, with the same force and effect as if Successor
Landlord were the landlord under the Lease, and Tenant shall attorn to and
recognize as Tenant's landlord under this Lease such Successor Landlord, as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments upon Successor Landlord's succeeding to the
interest of Landlord under the Lease. Tenant shall, upon demand, execute any
documents reasonably requested by any such person to evidence the attornment
described in this Section 17.02. Concurrently, upon written request from Tenant,
and provided Tenant is not in default under this Lease, Landlord agrees to use
diligent, commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the Successor Landlord. Such Non-Disturbance Agreement may be embodied in
the Mortgagee's customary form of Subordination and Non-Disturbance Agreement.
If, after exerting diligent, commercially reasonable efforts, Landlord is unable
to obtain a Non-Disturbance Agreement from any such Mortgagee, Landlord shall
have no further obligation to Tenant with respect thereto.
17.03 MORTGAGEE PROTECTION. Tenant agrees to give any Mortgagee, by
registered or certified mail, a copy of any notice of default served upon
Landlord by Tenant, provided that prior to such notice Tenant has been notified
in writing (by way of service on Tenant of a copy of Assignment of Rents and
Leases, or otherwise) of the address of such Mortgagee (hereafter the "Notified
Party"). Tenant further agrees that if Landlord shall have failed to cure such
default within twenty (20) days after such notice to Landlord (or if such
default cannot be cured or corrected within that time, then such additional time
as may be necessary if Landlord has commenced within such twenty (20) days and
is diligently pursuing the remedies or steps necessary to cure or correct such
default), then the Notified Party shall have an additional thirty (30) days
within which to cure or correct such default (or if such default cannot be cured
or corrected within that time, then such additional time as may be necessary if
the Notified Party has commenced within such thirty (30) days and is diligently
pursuing the remedies or steps necessary to cure or correct such default). Until
the time allowed, as aforesaid, for the Notified Party to cure such default has
expired without cure, Tenant shall have no right to, and shall not, terminate
this Lease on account of Landlord's default.
ARTICLE XVIII - QUIET ENJOYMENT
18.01 Provided that Tenant performs all of its obligations hereunder,
Tenant shall have and peaceably enjoy the Premises during the Lease Term free of
claims by or through Landlord, subject to all of the terms and conditions
contained in this Lease.
ARTICLE XIX - RULES AND REGULATIONS
19.01 The Rules and Regulations attached hereto as Exhibit C are
hereby incorporated by reference herein and made a part hereof. Tenant shall
abide by, and faithfully observe and comply with the Rules and Regulations and,
after receiving written notice, any reasonable and non-discriminatory
amendments, modifications and/or additions thereto as may hereafter be adopted
and published by written notice to tenants by Landlord for the safety, care,
security, good order and/or cleanliness of the Premises and/or the Building.
Landlord shall not be liable to Tenant for any violation of such rules and
regulations by any other tenant or occupant of the Building. Landlord shall not
unreasonably discriminate against Tenant in the enforcement of the Rules and
Regulations.
ARTICLE XX - ESTOPPEL CERTIFICATES
20.01 Tenant agrees at any time and from time to time upon not less
than ten (10) business days' prior written notice from Landlord to execute,
acknowledge and deliver to Landlord a statement in writing addressed and
certifying to Landlord, to any current or prospective Mortgagee or any assignee
thereof, to any prospective purchaser of the land, improvements or both
comprising the Building, and to any other party designated by Landlord, that
this Lease is unmodified and in full force and effect (of if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications); that Tenant has accepted possession of the Premises, which
are acceptable in all respects, and that any improvements required by the terms
of this Lease to be made by Landlord have been completed to the satisfaction of
Tenant; that Tenant is in full occupancy of the Premises; that no rent has been
paid more than thirty (30) days in advance; that the first month's Base Rent has
been paid; that Tenant is entitled to no free rent or other concessions except
as stated in this Lease; that Tenant has not been notified of any previous
assignment of Landlord's or any predecessor landlord's interest under this
Lease; the dates to which Base Rent, additional rental and other charges have
been paid; that Tenant, as of the date of such certificate, has no charge, lien
or claim of setoff under this Lease or otherwise against Base Rent, additional
rental or other charges due or to become due under this Lease; that to Tenant's
knowledge Landlord is not in default in performance of any covenant, agreement
or condition contained in this Lease; or any other matter relating to this Lease
or the Premises or, if so, specifying each such default. If there is a Guaranty
under this Lease, said Guarantor shall confirm the validity of the Guaranty by
joining in the execution of the Estoppel Certificate or other documents so
requested by Landlord or Mortgagee. In addition, in the event that such
certificate is being given to any Mortgagee, such statement may contain any
other provisions customarily required by such Mortgagee including, without
limitation, an agreement on the part of Tenant to furnish to such Mortgagee,
written notice of any Landlord default and a reasonable opportunity for such
Mortgagee to cure such default prior to Tenant being able to terminate this
Lease. Any such statement delivered pursuant to this Section may be relied upon
by Landlord or any Mortgagee, or prospective purchaser to whom it is addressed
and such statement, if required by its addressee, may so specifically state. If
Tenant does not execute, acknowledge and deliver to Landlord the statement as
and when required herein, Landlord is hereby granted an irrevocable
power-of-attorney, coupled with an interest, to execute such statement on
Tenant's behalf, which statement shall be binding on Tenant to the same extent
as if executed by Tenant.
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ARTICLE XXI - ENTRY BY LANDLORD
21.01 Upon at least 24 hours' prior oral notice to Tenant at the
Premises (excluding emergencies or when providing services, when no such notice
shall be required), Landlord may enter the Premises at all reasonable times to:
inspect the same; exhibit the same to prospective purchasers, Mortgagees or
tenants; determine whether Tenant is complying with all of its obligations under
this Lease; supply janitorial and other services to be provided by Landlord to
Tenant under this Lease; post notices of non-responsibility; and make repairs or
improvements in or to the Building or the Premises; provided, however, that all
such work shall be done as promptly as reasonably possible and so as to cause as
little interference to Tenant as reasonably possible. Tenant hereby waives any
claim for damages for any injury or inconvenience to, or interference with,
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned by such entry. Landlord shall at all times have and
retain a key with which to unlock all of the doors in, on or about the Premises
(excluding Tenant's vaults, safes and similar areas designated by Tenant in
writing in advance), and Landlord shall have the right to use any and all means
by which Landlord may deem proper to open such doors to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any such means,
or otherwise, shall not under any circumstances be deemed or construed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from any part of the Premises. Such entry by
Landlord shall not act as a termination of Tenant's duties under this Lease. If
Landlord shall be required to obtain entry by means other than a key provided by
Tenant, the cost of such entry shall by payable by Tenant to Landlord as
additional rent.
ARTICLE XXII
LANDLORD'S LEASE UNDERTAKINGS-EXCULPATION FROM PERSONAL LIABILITY;
TRANSFER OF LANDLORD'S INTEREST
22.01 LANDLORD'S LEASE UNDERTAKINGS. Notwithstanding anything to the
contrary contained in this Lease or in any exhibits, Riders or addenda hereto
attached (collectively the "Lease Documents"), it is expressly understood and
agreed by and between the parties hereto that: (a) the recourse of Tenant or its
successors or assigns against Landlord with respect to the alleged breach by or
on the part of Landlord of any representation, warranty, covenant, undertaking
or agreement contained in any of the Lease Documents or otherwise arising out of
Tenant's use of the Premises or the Building (collectively, "Landlord's Lease
Undertakings") shall extend only to Landlord's interest in the real estate of
which the Premises demised under the Lease Documents are a part ("Landlord's
Real Estate") and not to any other assets of Landlord or its beneficiaries; and
(b) except to the extent of Landlord's interest in Landlord's Real Estate, no
personal liability or personal responsibility of any sort with respect to any of
Landlord's Lease Undertakings or any alleged breach thereof is assumed by, or
shall at any time be asserted or enforceable against, Landlord, Heitman Capital
Management Corporation or Heitman Properties Ltd., or against any of their
respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
It is expressly understood and agreed by and between the parties hereto,
anything herein to the contrary notwithstanding, that each and all of the
representations, warranties, covenants, undertakings and agreements herein made
on the part of Landlord while in form purporting to be the representations,
warranties, covenants, undertakings and agreements of Landlord are nevertheless
each and every one of them made and intended, not as personal representations,
warranties, covenants, undertakings and agreements by Landlord or for the
purpose or with the intention of binding Landlord personally, but are made and
intended for the purpose only of subjecting Landlord's interest in the Building,
the Land and the Premises to the terms of this lease and for no other purpose
whatsoever, and in case of default hereunder by Landlord (or default through,
under or by any of its beneficiaries, or agents or representatives of said
beneficiaries), the Tenant shall look solely to the interest of Landlord in the
Building and Land; that this lease is executed and delivered by Landlord not in
its own right, but solely in the exercise of the powers conferred upon it as
such Trustee; that neither the Landlord nor any of Landlord's beneficiaries
shall have any personal liability to pay any indebtedness accruing hereunder or
to perform any covenant, either express or implied, herein contained, and no
liability or duty shall rest upon Landlord to sequester the trust estate or the
rents, issues and profits arising therefrom, or the proceeds arising from any
sale or other disposition thereof; and that no personal liability or personal
responsibility of any sort is assumed by, nor shall at any time be asserted or
enforceable against, said Landlord, American National Bank and Trust Company of
Chicago, a national banking association, individually or personally, but only as
Trustee under the provisions of a Trust Agreement dated December 5, 1985 and
known as its Trust No. 66078, or against any of the beneficiaries under said
Trust Agreement, or their respective agents, on account of this lease or on
account of any representation, warranty, covenant, undertaking or agreement of
Landlord in this lease contained, either express or implied, all such personal
liability, if any, being expressly waived and released by Tenant and by all
persons claiming by, through or under Tenant.
22.02 TRANSFER OF LANDLORD'S INTEREST. In the event of any transfer of
Landlord's interest in the Building, Landlord shall be automatically freed and
relieved from all applicable liability with respect to performance of any
covenant or obligation on the part of Landlord, provided any deposits or advance
rents held by Landlord are turned over to the grantee and said grantee expressly
assumes, subject to the limitations of this Section 22, all the terms, covenants
and conditions of this Lease to be performed on the part of Landlord, it being
intended hereby that the covenants and obligations contained in this Lease on
the part of Landlord shall, subject to all the provisions of this Section 22, be
binding on Landlord, its successors and assigns, only during their respective
periods of ownership.
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ARTICLE XXIII - HOLDOVER TENANCY
23.01 If Tenant holds possession of the Premises after the expiration
or termination of the Lease Term, by lapse of time or otherwise, Tenant shall
become a tenant at sufferance upon all of the terms contained herein, except as
to Lease Term and Rent. During the first 30 days of such holdover period, Tenant
shall pay to Landlord a monthly rental equivalent to one hundered fifty percent
(150%) of the Rent Payable by Tenant to Landlord with respect to the last month
of the Lease Term. With respect to the last month of the Lease Term the monthly
rent payable for such holdover period shall in no event be construed as a
penalty or as liquidated damages for such retention of possession. Without
limiting the foregoing, Tenant hereby agrees to indemnify, defend and hold
harmless Landlord, its beneficiary, and their respective agents, contractors and
employees, from and against any and all claims, liabilities, actions, losses,
damages (including without limitation, direct, indirect, incidental and
consequential) and expenses (including, without limitation, court costs and
reasonable attorneys' fees) asserted against or sustained by any such party and
arising from or by reason of such retention of possession, which obligations
shall survive the expiration or termination of the Lease Term.
ARTICLE XXIV - NOTICES
24.01 All notices which Landlord or Tenant may be required, or may
desire, to serve on the other may be served, as an alternative to personal
service, by mailing the same by registered or certified mail, postage prepaid,
addressed to Landlord at the address for Landlord set forth in Section 1.12
above and to Tenant at the address for Tenant set forth in Section 1.13 above,
or, from and after the Commencement Date, to Tenant at the Premises whether or
not Tenant has departed from, abandoned or vacated the Premises, or addressed to
such other address or addresses as either Landlord or Tenant may from time to
time designate to the other in writing. Any notice shall be deemed to have been
served at the time the same was posted.
ARTICLE XXV - BROKERS
25.01 The parties recognize as the broker(s) who procured this Lease
the firm(s) specified in Section 1.14 and agree that Landlord shall be solely
responsible for the payment of any brokerage commissions to said broker(s), and
that Tenant shall have no responsibility therefor unless written provision to
the contrary has been made a part of this Lease. If Tenant has dealt with any
other person or real estate broker in respect to leasing, subleasing or renting
space in the Building, Tenant shall be solely responsible for the payment of any
fee due said person or firm and Tenant shall protect, indemnify, hold harmless
and defend Landlord from any liability in respect thereto.
ARTICLE XXVI - ELECTRONIC SERVICES
26.01 TENANT'S LINES. Tenant may, in a manner consistent with the
provisions and requirements of this Lease, install, maintain, replace, remove or
use any communications or computer or other electronic service wires, cables and
related devices (collectively the "Lines") at the Building in or serving the
Premises, provided: (a) Tenant shall obtain Landlord's prior written consent,
which consent may be conditioned as required by Landlord, (b) if Tenant at any
time uses any equipment that may create an electromagnetic field exceeding the
normal insulation ratings of ordinary twisted pair riser cable or cause
radiation higher than normal background radiation, the Lines therefor (including
riser cables) shall be appropriately insulated to prevent such excessive
electromagnetic fields or radiation, and (c) Tenant shall pay all costs in
connection therewith. Landlord reserves the right to require that Tenant remove
any Lines which are installed in violation of these provisions. Tenant shall
not, without the prior written consent of Landlord in each instance, grant to
any third party a security interest or lien in or on the Lines, and any such
security interest or lien granted without Landlord's written consent shall be
null and void.
26.02 DEFINITION OF ELECTRONIC SERVICES. As used herein "Electronic
Services Provider" means a business which provides telephone, telegraph, telex,
video, other telecommunications or other services which permit Tenant to receive
or transmit information by the use of electronics and which require the use of
wires, cables, antennas or similar devices in or on the Building. The services
of Electronic Services Providers are sometime referred to herein as "Electronic
Services."
26.03 NO RIGHT TO SPECIFIC SERVICES. Landlord shall have no obligation
(i) to install any Electronic Services equipment or facilities, (ii) to make
available to Tenant the services of any particular Electronic Services Provider,
(iii) to allow any particular Electronic Services Provider access to the
Building, (iv) to continue to grant access to an Electronic Services Provider
once such provider has been given access to the Building. Landlord may (but
shall not have the obligation to): (x) install new Lines at the property, (y)
create additional space for Lines at the property, and (z) adopt reasonable and
uniform rules and regulations with respect to Lines.
26.04 LIMITATION OF LANDLORD'S RESPONSIBILITY. Tenant acknowledges and
agrees that all Electronic Services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. Unless Landlord otherwise requests or
consents in writing, all of Tenant's Electronic Services equipment shall be and
remain solely in the Tenant's premises and the telephone closet(s) on the
floor(s) on which the Tenant's premises is located, in accordance with rules and
regulations adopted by Landlord from time to time. Unless otherwise specifically
agreed to in writing, Landlord shall have no responsibility for the maintenance
of Tenant's Electronic Services equipment,
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including Lines; nor for any Lines or other infrastructure to which Tenant's
Electronic Services equipment may be connected. Tenant agrees that, to the
extent any Electronic Services are interrupted, curtailed or discontinued,
Landlord shall have no obligation or liability with respect thereto and it shall
be the sole obligation of Tenant at its own expense to obtain substitute
service. Except to the extent arising from the intentional or grossly negligent
acts of Landlord or Landlord's agents or employees, Landlord shall have no
liability for damages arising from, and Landlord does not warrant that Tenant's
use of any Lines will be free from the following (collectively called "Line
Problems"): (x) any eavesdropping or wire-tapping by unauthorized parties, (y)
any failure of any Lines to satisfy Tenant's requirements, or (z) any shortages,
failures, variations, interruptions, disconnections, loss or damage caused by
the installation, maintenance, replacement, use or removal of Lines by or for
other tenants or occupants at the property. Under no circumstances shall any
Line Problems be deemed an actual or constructive eviction of Tenant, render
Landlord liable to Tenant for abatement of Rent, or relieve Tenant from
performance of Tenant's obligations under this Lease. Landlord in no event shall
be liable for damages by reason of loss of profits, business interruption or
other consequential damage arising from any Line Problems.
26.05 NECESSARY SERVICE INTERRUPTIONS. Landlord shall have the right,
upon reasonable prior notice to Tenant, to interrupt or turn off Electronic
Services facilities in the event of emergency or as necessary in connection with
maintenance, repairs or construction at the Building or installation of
Electronic Services equipment for other Tenants of the Building or on account of
violation by the Electronic Services Provider or owner of the Electronic
Services equipment of any obligation to Landlord or in the event that Tenant's
use of the Electronic Services infrastructure of the Building materially
interferes with the Electronic Services of other tenants of the Building.
26.06 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES. Subject to
Section 9.04, any and all Electronic Services equipment installed in the
Tenant's Premises or elsewhere in the Building by or on behalf of Tenant,
including Lines, or other facilities for Electronic Services reception or
transmittal, shall be removed prior to the expiration or earlier termination
of the Lease term, by Tenant at its sole cost or, if Tenant fails to do so,
by Landlord at Tenant's sole cost, with the cost thereof to be paid as
additional rent. Landlord shall have the right, however, upon written notice
to Tenant given no later than thirty (30) days prior to the expiration or
earlier termination of the Lease term (except that the notice period shall
extend to thirty (30) days beyond the date of termination of the Lease if it
is terminated by either party due to a default by the other), to require
Tenant to abandon and leave in place, without additional payment to Tenant or
credit against rent, any and all Electronic Services Lines and related
infrastructure, or selected components thereof, whether located in the
Tenant's premises or elsewhere in the Building.
26.07 NEW PROVIDER INSTALLATIONS. In the event that Tenant wishes at
any time to utilize the services of an Electronic Services Provider whose
equipment is not then servicing the Building, no such Electronic Services
Provider shall be permitted to install its Lines or other equipment within the
Building without first securing the prior written approval of the Landlord.
Landlord's approval shall not be deemed any kind of warranty or representation
by Landlord, including, without limitation, any warranty or representation as to
the suitability, competence, or financial strength of the Electronic Services
Provider. Without limitation of the foregoing standard, unless all of the
following conditions are satisfied to Landlord's satisfaction, it shall be
reasonable for Landlord to refuse to give its approval: (i) Landlord shall incur
no current expense or risk or future expense whatsoever with respect to any
aspect of the Electronic Services Provider's provision of its Electronic
Services, including without limitation, the costs of installation, materials and
services; (ii) prior to commencement of any work in or about the Building by the
Electronic Services Provider, the Electronic Services Provider shall supply
Landlord with such written indemnities, insurance, financial statements, and
such other items as Landlord reasonably determines to be necessary to protect
its financial interests and the interests of the Building relating to the
proposed activities of the Electronic Services Provider; (iii) the Electronic
Services Provider agrees to abide by such rules and regulations, Building and
other codes, job site rules and such other requirements as are reasonably
determined by Landlord to be necessary to protect the interests of the Building,
the Tenants in the Building and Landlord, in the same or similar manner as
Landlord has the right to protect itself and the Building with respect to
proposed alterations as described in Article IX of this Lease; (iv) Landlord
reasonably determines that, considering other potential uses for space in the
Building, there is sufficient space in the Building for the placement of all of
the provider's equipment, conduit, Lines and other materials; (v) the Electronic
Services Provider agrees to abide by Landlord's requirements, if any, that
provider use existing Building conduits and pipes or use Building contractors
(or other contractors approved by Landlord); (vi) Landlord receives from the
Electronic Services Provider such compensation as is reasonably determined by
Landlord to compensate it for space used in the Building for the storage and
maintenance of the Electronic Services Provider's equipment, for the fair market
value of a Electronic Services Provider's access to the Building, for the use of
common or core space within the Building and the costs which may reasonably be
expected to be incurred by Landlord; (vii) the provider agrees to deliver to
Landlord detailed "as built" plans immediately after the installation of the
provider's equipment is complete; and (viii) all of the foregoing matters are
documented in a written license agreement between Landlord and the provider, the
form and content of which is reasonably satisfactory to Landlord."
26.08 LIMIT OF DEFAULT OR BREACH. Notwithstanding any provision of the
proceeding paragraphs to the contrary, the refusal of Landlord to grant its
approval to any prospective Electronic Services Provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to have acted recklessly or maliciously with
respect to Tenant's request for approval, and in that event, Tenant shall still
have no right to terminate the Lease or claim an entitlement to rent abatement,
but may as Tenant's sole and exclusive recourse seek a judicial order of
specific performance compelling Landlord to grant its approval as to the
prospective provider in question. The provisions of this paragraph may be
enforced solely by Tenant and Landlord, are not for the benefit of any other
party, and specifically but without limitation, no telephone or other Electronic
Services Provider shall be deemed a third party beneficiary of this Lease.
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26.09 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES. Tenant shall not
utilize any wireless Electronic Services equipment (other than usual and
customary cellular telephones), including antennae and satellite receiver
dishes, within the Tenant's premises, within the Building or attached to the
outside walls or roof of the Building, without Landlord's prior written consent.
Such consent may be conditioned in such a manner so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein, in a manner similar to the arrangements described in the immediately
preceding paragraphs.
26.10 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE. In the event
that Electronic Services equipment, Lines and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant within
the Tenant's premises, on the roof, or elsewhere within or on the Building
causes interference to equipment used by another party and such interference
continues after notice thereof to Tenant, Tenant shall cease using such
equipment, Lines and facilities or satellite and antennae equipment until the
source of the interference is identified and eliminated and Tenant shall assume
all liability related to such interference. Tenant shall cooperate with Landlord
and other parties, to eliminate such interference promptly. In the event that
Tenant is unable to do so, Tenant will substitute alternative equipment which
remedies the situation. If such interference persists, Tenant shall, at
Landlord's sole discretion, remove such equipment.
ARTICLE XXVII - MISCELLANEOUS
27.01 ENTIRE AGREEMENT. This Lease contains all of the agreements and
understandings relating to the leasing of the Premises and the obligations of
Landlord and Tenant in connection with such leasing. Landlord has not made, and
Tenant is not relying upon, any warranties, or representations, promises or
statements made by Landlord or any agent of Landlord, except as expressly set
forth herein. This Lease supersedes any and all prior agreements and
understandings between Landlord and Tenant and alone expresses the agreement of
the parties.
27.02 AMENDMENTS. This Lease shall not be amended, changed or modified
in any way unless in writing executed by Landlord and Tenant. Landlord shall not
have waived or released any of its rights hereunder unless in writing and
executed by Landlord.
27.03 SUCCESSORS. Except as expressly provided herein, this Lease and
the obligations of Landlord and Tenant contained herein shall bind and benefit
the successors and assigns of the parties hereto.
27.04 FORCE MAJEURE. Landlord shall incur no liability to Tenant with
respect to, and shall not be responsible for any failure to perform, any of
Landlord's obligations hereunder if such failure is caused by any reason beyond
the control of Landlord including, but not limited to, strike, labor trouble,
governmental rule, regulations, ordinance, statute or interpretation, or by
fire, earthquake, civil commotion, or failure or disruption of utility services.
The amount of time for Landlord to perform any of Landlord's obligations shall
be extended by the amount of time Landlord is delayed in performing such
obligation by reason of any force majeure occurrence whether similar to or
different from the foregoing types of occurrences.
27.05 SURVIVAL OF OBLIGATIONS. Any obligations of Landlord or Tenant
accruing prior to the expiration of the Lease shall survive the expiration or
earlier termination of the Lease, and Landlord or Tenant shall promptly perform
all such obligations whether or not this Lease has expired or been terminated.
27.06 LIGHT AND AIR. No diminution or shutting off of any light, air
or view by any structure now or hereafter erected shall in any manner affect
this Lease or the obligations of Tenant hereunder, or increase any of the
obligations of Landlord hereunder.
27.07 GOVERNING LAW. This Lease shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
27.08 SEVERABILITY. In the event any provision of this Lease is found
to be unenforceable, the remainder of this Lease shall not be affected, and any
provision found to be invalid shall be enforceable to the extent permitted by
law. The parties agree that in the event two different interpretations may be
given to any provision hereunder, one of which will render the provision
unenforceable, and one of which will render the provision enforceable, the
interpretation rendering the provision enforceable shall be adopted.
27.09 CAPTIONS. All captions, headings, titles, numerical references
and computer highlighting are for convenience only and shall have no effect on
the interpretation of this Lease.
27.10 INTERPRETATION. Tenant acknowledges that it has read and
reviewed this Lease and that it has had the opportunity to confer with counsel
in the negotiation of this Lease. Accordingly, this Lease shall be construed
neither for nor against Landlord or Tenant, but shall be given a fair and
reasonable interpretation in accordance with the meaning of its terms and the
intent of the parties.
27.11 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
other provision of this Lease to be performed by Tenant are separate and
independent covenants of Tenant, and not dependent on any other provision of the
Lease.
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27.12 NUMBER AND GENDER. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include the appropriate number and gender, as the context may require.
27.13 TIME IS OF THE ESSENCE. Time is of the essence of this Lease and
the performance of all obligations hereunder.
27.14 JOINT AND SEVERAL LIABILITY. If Tenant comprises more than one
person or entity, or if this Lease is guaranteed by any party, all such persons
shall be jointly and severally liable for payment of rents and the performance
of Tenant's obligations hereunder. If Tenant comprises more than one person or
entity and fewer than all of the persons or entities comprising Tenant abandon
the Premises, Landlord, at its sole option, may treat th